*1 рresentation by judge the trial jury pertinent of the law to this case.
AFFIRMED. STREETMAN,
Robert L.
Petitioner-Appellant, LYNAUGH, Director, A.
James Interim Department Corrections,
Texas
Respondent-Appellee.
No. 86-2319.
United Appeals, States Court of
Fifth Circuit.
March
Rehearing and Rehearing En Banc 29, 1987.
Denied April *2 Houston, Tex., Gray, petitioner-
Will appellant. Gen., Zapalac, Atty. C. Asst. Jim
William Austin, Mattox, Gen., Tex., Atty. for re- spondent-appellee. RUBIN, JOHNSON,
Before JONES, Judges. Circuit JOHNSON, Judge: Circuit case, capital petitioner In this Robert appeals from the district court’s Streetman petition dismissal writ of habeas corpus, F.Supp. Finding that the relevant to Streetman’s ineffective assistance of counsel claim have not been re- adequately developed, we reverse and evidentiary hearing in mand for an order development the full of material permit facts.
I. fatally during a Baker was shot Christine burglary of home on December her later, on days 1982. Two December officials arrested law enforcement Johnson, Streetman, Johnny David Robert Kirkendoll, Gary Holden in connection of agricultural series thefts with a interrogating While the four equipment. suspects, officials discovered that theft also involved in the Baker men had evening killing. early Later that gave state- following morning, Streetman im- signed ments and a written confession Hol- Baker's killer.1 plicating himself as regarding to law authorities implicated also him in ments enforcement 1. Streetman’s statements Later, of- other extraneous during involvement in several series of the course thefts. detention, dur- gave were introduced pretrial These statements state- fenses. gave Kirkendoll also tion den and that all four of people, these identifying their detailing you involvement they’re had reason to believe that all triggerman in mur- as the guilty capital murder? der. (Osborne): that, A. I couldn’t arrive at they guilty were all of murder. capital
All men were indicted for four *3 say, they (sic) I four, however, Like only charged was all murder. Of the Street- it, eventually yes, tried for and convicted sir. man was exchange In capital murder. for his Q.: Well, mean, you I pretty good had a trial, testimony at Holden re- excluding Johnny idea Johnson when all Kirkendoll, probation. years’ in ceived ten they three of them signed said did it and exchange plea agreement for a and his you written statements either to the testify, promise to received a sentence of investigation; Sheriff’s office in the Department forty-five years in the Texas you’d pretty good they have a if idea granted Authorities of Corrections. signed they written statements that did? immunity. Johnson Neither Johnson nor correct, A.: That’s yes, sir. personally during Kirkendoll testified Q.: sign Did people all three of those an although trial read State voluntary indictment—I mean a state- jury. Kirkendoll’s statement to the ment? judge appointed initially state trial Yes, sir, they A.: did. McNeely represent Michael S. Street- Q.: statements, Within they those did all McNeely inexperienced man. in han- guilt, admit they their were involved dling criminal contested cases and had nev- in killing of Mrs. Baker? penalty er a death Be- before tried case. correct, A.: That’s yes, sir. experience, McNeely cause of his lack of requested judge appoint the trial an ex- perienced attorney preparing to assist in Q. Coe): (By Now, I’m asking you trying response and the case. In they’re (sic), just worded a like but McNeely’s request, judge appoint- general, all of the written statements are Coe, eventually ed S. who Robert served as they're talking similar in that all about de facto lead counsel at trial. (sic) that the three of them was involved guilt trial, stage At the of Streetman’s determine, you it and as far as it could presented only the State four witnesses: (sic) really any wasn’t conflict between Osborne, Ralph Deрuty the Chief Sheriff Holden, Streetman, any Kirkendoll or Texas; Baker, County, Henry Hardin Nile mean, pretty them? I the statements all husband; Holden; the victim’s Gary gives (sic) information, well the same Parr, Clint a friend of Streetman. The (sic)? don’t it witness, Ralph State’s Deputy first Sheriff (Osborne): A. That’s correct. The four Osborne, testified on direct re- examination kept separate of them \vere at all times garding investigation of the Christine statements, they of the three are Baker murder. testimony Osborne’s fo- similar, yes, sir. finding body cused Baker’s and deter- Q.: mean, you I didn’t find one different mining physical from evidence at the you from the other one to make believe scene that she had been murdered. On lying and the one other one was
cross-examination, defense Robert anything? lying or testimony Coe solicited Os- Deputy from correct. A.: That’s indicating Streetman, borne Holden signed Kirkendoll had each statements response question by In to a defense attor- giving consistent accounts the Baker ney regarding why only Streetman Coe admitting murder and their involvement. murder, being capital tried Os- Coe):
Q. means, (By guess I me That borne testified that Streetman “told your opinion, investiga- your personally lady.” that from shot [had] ing phase penalty capital of Streetman’s murder trial. despite fact firmed both testimony Streetman’s conviction solicited
Coe State, pretrial suppress motion to sentence. See Streetman v. a written (J. 132 (Tex.Crim.App.1985) Teag- S.W.2d by the advisement taken under filed and ue). Coe’s cross-ex- As a result of trial court. originally Streetman’s execution was Osborne, Deputy the State amination place take February scheduled to actually introduce required to never 3, 1986, February Streetman, 1986. On confession into evidence. represented by counsel, now different filed addition, opened attorney Coe had because application for a corpus writ of habeas elicited—the admis- the door for—indeed in state district court. At the same time confession, the sion of Kirkendoll’s written moved to withdraw and recall of Osborne on redirect examination State In his the warrant of execution. ha- into Kirkendoll’s full statement introduced *4 corpus petition, beas Streetman asserted Thus, necessary for it not evidence. was he that received ineffective assistancе of testify he did person, in and Kirkendoll to appellate and counsel. Streetman’s do so. petition corpus princi- state habeas focused testimony, Following Deputy Osborne’s pally during on conduct the guilt Coe’s three additional witnesses. the State called stage of Streetman’s trial. Baker, witness, The second Nile State’s night regarding the events the testified The state district ordered court an evi- Baker, Mr. who his wife murdered. dentiary hearing on appli- Streetman’s writ away from home of that had been much (filed 1986) February to cation be held the evening, actually witness either did not day next February the on 1986. At the burglary murder. The State’s third wit- hearing, outset Streetman’s habeas Holden, ness, participant, Gary was a who arguing for a continuance counsel moved actually although that he had not testified preparation necessary that additional killing, the Streetman had admit- witnessed meaningful hearing. to a in order conduct shooting during Baker a conversation ted attorney argued Specifically, Streetman's following day. final wit- the The State’s subpoena he witnesses that needed time ness, Parr, also Streetman’s friend Clint matters thе to discuss outside record and had admitted dur- testified that Streetman attorney his client. Streetman’s stat- ing day after the mur- conversation the regarding he had been contacted ed Although “having shot der a woman.” earlier, days on only a few Janu- the case attorney each defense Coe cross-examined nevertheless denied the ary 29. The court guilt witness, during he the declined State concluding that counsel had had a motion trial to defense wit- phase of the call prepare. The opportunity to sufficient nesses on Streetman. behalf cited fact that Streetman court the of mur- jury guilty found Streetman corpus signed application the sever- habeas and, punish- hearing evidence on der after earlier, days January 1986. al ment, answers to the returned affirmative attorneys (Coe Both of Streetman’s trial Tex. special pursuant issues submitted McNeely) testified at the eviden- and (Vernon art. 37.071 Code Crim.Proc.Ann. Attorney hearing. testified that tiary Coe 1981).2 August 10, Consequently, on discussing the case with Streetman judge the trial sentenced family he determined that and Streetman’s injection. by appeal, On direct death lethal сhallenging validity the af- no basis existed Appeals Criminal Texas Court (2) probability is that the jury there questions un- whether submitted three criminal acts of vio- would commit defendant der article 37.071 were as follows: continuing that would constitute lence (1) of the defendant Whether conduct society; threat that caused the death of deceased evidence, (3) by whether if raised deliberately with the reason- committed killing the de- the defendant conduct of expectation able the death of the de- response unreasonable ceased was result; or another would ceased by any, provocation, deceased. if confessions. Based on district challenging Streetman’s court. addition to and the state- Streetman’s confessions counsels’ conduct of proceedings, the trial Holden, Kirkendoll ments made Coe corpus petition Streetman’s federal habeas Streetman was certain to be concluded that focused on trial counsels’ failure to ade- guilty murder. Coe found testified quately investigate the admissibility of adopt led him to a trial this conclusion days confessions. Several la- reducing intended to: focus on strategy ter, requesting Streetman filed a motion an punishment emphasizing pun- lesser evidentiary hearing. The federal district equally ishment received a preliminary hearing May 2, held disrupt prosecution guilty accomplices; 1986, to consider the need for a full eviden- by bringing most damaging out the evi- tiary hearing. preliminary hearing, At the form; prejudicial dence in its least estab- Streetman’s habeas counsel asserted that lish and her victim husband were regarding the voluntariness of Street- thereby involved criminal activities less- man’s statements and his trial counsels’ victim; ening jury sympathy for the investigate failure to those confessions emphasize that Streetman had had a trou- developed at the state disadvantaged bled and life and de- assured Attorney serving sympathy. Coe’s co- granted federal district court that contrast, McNeely, in counsel testified that evidentiary hearing, produce he would sev- thought might acquitted. eral witnesses present who would *5 material particular, McNeely testified that his evidence introduced at the state hear- investigation revealed that Streetman’s ing. The federal district court nеvertheless involuntary confessions were were —thus denied Streetman’s motion for an evidentia- inadmissible. ry hearing, application denied the for habe- Following evidentiary hearing, corpus, as denied the motion for certificate state district ap- court denied Streetman’s cause, probable of and denied Streetman’s plication corpus. for a writ of habeas stay motion for a of execution. applied Streetman then to the Texas Court gave Streetman appeal. oral notice of Appeals a stay execution Criminal appeal, sought stay- On Streetman an order corpus. and writ of habeas a Because execution, ing his scheduled before sunrise statement of facts from the state district 8, 1986, May remanding on and an order court could not be transcribed before cause the federal district court for a execution, Streetman’s tempo- scheduled complete evidentiary full and on rary stay of granted. execution was Six later, 17, 1986, ineffective assistance of weeks on counsel claims. March a divided 6, 1986, May Texas Court Criminal On this Court entered an Apрeals denied application granting Streetman’s or- order application without written Streetman’s Judge Teague, der. judge probable had certificate of grant- who cause and Appeals’ ing stay authored the Court of Criminal pending of execution further opinion affirming initial Streetman’s convic- by this order Court. dissented,
tion appeal, concluding on direct that Streetman received as- ineffective II. Simultaneously sistance of counsel. trial application, its denial Streetman contends that his trial attor- Appeals Texas Court Criminal with- neys failing were ineffective in to discover staying drew its Streetman’s execu- order that Streetman’s statements to authorities 3, 1986, April tion. On the state district failing urge were inadmissible and signed execution, a new warrant of suppression of those statements. Accord- ordering Streetman’s execution before sun- Streetman, ing attorney’s his trial fail- 8,May rise adequately investigate ure to the state- 25, 1986, strategy April proceeded prejudicial
On ments led to their trial Streetman assumption application to file for writ of which was based that corpus stay of executiоn in the statements were admissible and that federal attorneys Two his trial have guilty.3 be found would revealed would in- critical to inquiries factual that confessions were inadmissible. (1) claim are: whether assistance effective Attorney McNeely testified at the state to authori- various statements evidentiary hearing that pro- information obtained; and improperly were in fact ties family Streetman and his vided indi- investigation so, (2) reasonable if whether that cated Streetman’s confessions were by trial counsel would uncovered McNeely inadmissible. testified he that inadmissibility of the statements. suppress filed a motion to written the con- inquiry, regard to the first Street- With “distinctly fessions and at remember[ed] produce he is now able to urges man that point judge said some indicating he statements evidence going confessions were to be admit- and which were subse- gave authorities McNeely further ted.” testified that he were inadmissible. quently used at reurge prepared sup- motion Streetman, given he was vali- According to press necessary surprised “as as shortly by Deputy Osborne um anyone” when co-counsel Coe himself receive continued to valium arrest and brought Streetman’s confession before the alleges long cooperated. as he jury. Coe on the other hand testified that influence he under the of valium Streetman failed indicating gave the time he statements reason opinion to name in various extraneous of- [Coe’s] involvement stated, fenses. As heretofore the State that would make inad- [the statements] during the these statements introduced He said well missible. how [Streetman] stage of Streetman’s trial. Street- penalty treated; he was how the officers treated alleges gave his initial man that he further him; family how members of his admitting in a ser- involvement statement present and that [sic] [the only after he and his ies thefts true, no complaint made were] by Hardin physically threatened it. about County Holzapfel Sher- Mike Sheriff *6 alleges spent that he less than Streetman Jimmy al- Captain iff’s Butler. Streetman Coe, attorney trial with did an hour before murdering Bak- leges he confessed to that Coe, nothing say like and had to him. promises only he from er after received Thus, possible it is that Streetman told Deputy were Osborne that authorities attorney MсNeely suggesting really Johnny that Johnson and inadmissible, but at “home be released and Streetman would to inform Coe of the same time refused if he mur- confessed to the for Christmas” whether same facts.4 It is unclear Coe allegedly prom- also Deputy der. Osborne in “compared McNeely notes” nothing said ever with that Streetman ised Streetman against According to strategy. him. The state planning would be used trial district Streetman, family his wit- members of finding point. on this Coe court made no improper heard some of these nessed and strategy he did trial that discuss testified inducements to confess. contrast, McNeely, McNeely. in testi- with busy either too tired fied that Coe was inquiry, regard to the second
With
Attorney Coe
the case.
testified
inquiry to discuss
contends that reasonable
Streetman
dentiary hearing
required,
corpus petition
is
we need not deter-
federal habeas
3. Streetman's
per-
proceedings
alleged
appli-
point
overall
also
that
trial counsel’s
mine at this
in
prejudice
so
that
should
cability
formance was
deficient
of Cronic.
presumed
under the standard enunciated
Cronic,
United States v.
Attorney
that had
Coe further testified
Street-
prin-
This was the
80 L.Ed.2d
suppression
put
on the stand at
man
cipal argument
habe-
raised in Streetman’s state
he
would
testified that
application,
Judge Teague’s
corpus
dissent
penalty.
guilty
In
asked for the death
Appeals deci-
from
Texas Court of Criminal
hearing,
evidentiary
Street-
motion for an
denying
for relief found
sion
Streetman’s claim
alleges
testimony
specifically
that Coe’s
man
persuasive.
disposi-
argument
Given
our
regard
that
true.
argument
evi-
that a federal
tion of Streetman's
sup-
unaware of the motion
death sentence has two components.
by McNeely.
First,
press filed
the defendant must show that
performance
counsel’s
was deficient.
evidence,
foregoing
particu-
Much
requires
This
showing that counsel made
larly
portion alleged by Streetman,
so
errors
serious that counsel was not
evidentiary
at the state
was not introduced
functioning
guaranteed
as the “counsel”
According to
hearing.
Streetman’s habeas
defendant
the Sixth Amendment.
(the
attorney)
attorney, he
habeas
had been
Second, the defendant must show that
matters not contained in
unable
discuss
performance
the deficient
prejudiced the
Streetman or his
the record with
requires
defense. This
showing
addition,
prior to that
until
counsel’s
errors were so
serious as
February
had ex-
deprive
trial,
defendant
a fair
pressed a
to be executed. Street-
desire
trial whose result is
counsel
that he
Unless a
man’s habeas
avers
reliable.
defendant
showings,
makes both
only
contacted
after that date and had
it can-
less
not be said
review the
that the
than week to
record and file a
conviction or death
petition.
sentence
at the time
resulted from a
Thus
of the state
breakdown in
evidentiary hearing,
process
the adversarial
attorney
that renders the
was unaware of much of the
result
evidence now
unreliable.
possession
regarding
the admissibili-
Strickland,
Id. Under
perform-
counsel’s
ty of
confessions
and the reasonable-
only
ance is deficient
if it falls below an
investigation.
ness of
counsel’s
objective standard of reasonableness as in-
Streetman’s habeas counsel further avers
by prevailing
formed
professional stan-
if this
evidentiary
Court orders an
Id.,
dards.
Streetman bears the burden of establish- however, establish that “counsel’s deficient
ing the need for a federal evidentiary hear-
likely
conduct more
than not altered the
ing. In evaluating whether Streetman has
outcome
the case.” Id.
*7
burden,
met that
our initial task is to “de-
Streetman must establish that one or
termine whether
allegations,
if
[his]
more of his various confessions were inad-
proved,
right
would establish the
to habeas
missible
order to
either
show
deficient
Sain,
293,
relief.” Townsend v.
372 U.S.
performance or prejudice. As detailed
745,
307,
754,
83 S.Ct.
(1963).
A convicted promised defendant’s claim that to to supply authorities continue counsel’s exchange cooper- assistance was so defective as valium in for Streetman’s require to of a reversal conviction or ation.
957
States,
shooting
to
Bak
168 Streetman
confessed
v. United
In Bram
State,
183, 187,42
532, 542-43, 18
L.Ed.
er. See
698 S.W.2d
S.Ct.
Streetman v.
U.S.
(1897),
Supreme
stated that
(Tex.Crim.App.1985).
Court
136
The state
568
determining
attorney
voluntariness
prosecuting
admitted as
test
much
during
evidentiary hearing by
a confession
the state
suggesting that without the confession he
was extracted
the confession
is whether
violence,
damag
most
or
or had a
case. The second
any
of threats
weak
by
sort
prom-
any
implied
ing
testimony
by
direct or
of evidence was the
obtained
item
ises,
friend,
slight,
by the exertion
police
Clint Parr. The
however
[or]
any improper
Parr, however,
influence.
only during
one
learned of
alleged
statements now
of Streetman’s
Ross,
31, 97
429 U.S.
also Hutto v.
See
only
improperly
obtained.
(1976).
202, 203,
958
IV.
voluntary
and admissible at
trial.
The Stаte
attorney
relies on
Coe’s testimo-
Alleging
such facts establishes
ny that neither
family
Streetman nor his
power
to conduct
eviden
federal court’s
provided any information to indicate that
tiary hearing.
power
The exercise of that
the confessions were inadmissible. The
however, only “if
mandatory,
is
State concludes that since Streetman’s at-
not
a full
fair
applicant did
receive
torneys
properly rely
could
court,
information
evidentiary hearing in a state
either
provided by Streetman,
attorneys
pro
did
at the time of trial
collateral
not
Sain,
render ineffective
if
ceeding.”
assistance even the
Townsend
312-13,
745, 747,
confessions were in
S.Ct.
L.Ed.2d 770
fact inadmissible.
evidentiary
No
fair”
“full and
hear
Implicit
analysis
in the State’s
is the
ing has occurred if “the material facts
conclusion that
regarding
the facts
wheth
adequately developed
were not
at the state
er
attorneys
Streetman’s trial
hearing.”
conducted a
court
Id. Material facts are
fair,
investigation
reasonable
those facts crucial to a
con
were adequately
rounded
petitioner’s
developed
of a
sideration
claim.6
at
evidentiary
Id.
at the state
759;
83 S.Ct. at
see also Thomas v.
accept
We cannot
that conclusion. At the
Zant,
(11th
697 F.2d
986 n. 11
Cir.
hearing
state evidentiary
Streetman's two
1983). Material facts
been “ade
attorneys,
McNeely,
Coe and
gave con
quately developed”
petitioner al
where the
flicting testimony about what information
undeveloped
leges
evidence sufficient
provided
by
regarding
question
“reliability”
call into
confessions. Little effort was devoted at
petitioner’s
state court’s determination of
hearing
uncovering (1)
precise
what
federal claims.
information each
received from
family;
(2)
Streetman and Streetman’s
difficulty concluding
We have little
exchange
information,
any,
what
if
regarding
oc
that the facts
the voluntariness
attorneys;
(3)
curred between the
Streetman’s various statements were
adequately developed
strategy adopted
whether
evi
the trial
the state
Coe
dentiary hearing.
any testimony
Little if
McNeely.
ever discussed with
Neither
at that
was directed towards the
family
Streetman nor
of his
members
measures
taken
officials to secure
testified at that hеaring regarding the in
in
confessions. Local officials
they provided
formation
to Streetman’s tri
interrogating
volved in
Streetman did not
attorneys.
missing
al
testimony
This
could
testify. Neither did Streetman nor those
prove
in resolving
critical
inconsistencies in
allegedly
members
who
wit
testimony
the habeas
of Streetman’s attor
nessed official misconduct. Streetman’s
neys.
emphasize
We also
that Streetman
produce
habeas counsel avers that he will
had not one
attorneys.
but
two trial
some or
granted
all of these witnesses if
a McNeely
did,
fact,
testified that he
learn
evidentiary hearing.
federal
indicating
facts
that Streetman’s confes
involuntary. Upon
sions were
argues
learning
State
re-
even
facts, McNeely
garding
pretrial
these
filed
sup
voluntariness of Streetman’s
motion,
was,
pression
adequately
ap
confessions were not
a motion which
developed,
parently,
those facts are
never ruled on
the state trial
According
immaterial.
State,
Coe, himself,
reliably judge
state district
before
introduced
found
attorneys
that Streetman’s trial
Streetman’s confessions into
con-
evidence.
If
investigatiоn
accurate,
McNeely’s testimony
ducted
reasonable
de-
is
his fail
termined that Streetman's
ure
confessions
to inform Coe
those facts as well as
*9
Townsend,
Thus,
added).
(emphasis
In
the "crucial fact" not
at 761
disclosed
the undisclosed
by experts testifying
suppression
at the state
necessarily
evidence would not
have entitled the
hearing
injected
Nevertheless,
that
the substance
into
petitioner to relief if true.
it was
prior
“proper-
Townsend
to his confession had
to
fair
crucial
a
consideration of Townsend’s
may trigger
legal
ties which
a
in
constitutional claim.
321,
Id.,
involuntary."
sense
959
suppression
great
Courts must exercise
caution.
pretrial
The
to have the
his failure
purpose
corpus
served
itself
essential
habeas
upon would
filed acted
he had
motion
unjustly pun
is to
no
is
ensure that
man
indepen-
performance,
deficient
constitute
justifiable
If for some
reason
ished.
a
especially
is
so
This
conduct.
dent of Coe’s
petitioner
previously
fully
unable to
con-
role of Streetman’s
given the central
rights
assert his
or was unaware of the
in
case.
the State’s
fessions
facts,
significanсe of relevant
deny
then to
ambiguities in that little testi-
the
Given
inquiry
into
claims
full
would be
regarding the
presented
mony which was
unreasonable,
economy
judicial
considera
suppres-
press for
attorneys’ failure to
tions
The
Court thus nar
aside.
Townsend
confessions, the volume
sion of Streetman’s
neglect by refer
rowly defined inexcusable
the
testimony
presented at
of critical
never
bypass
ence
standard ar
deliberate
hearing, and
corpus
McNee-
state habeas
391,
Noia,
Fay
in
v.
372 U.S.
83
ticulated
testimony regarding his
ly’s uncontradicted
822,
What is clear foregoing from the points facts is terial facts. The State out that neither Streetman nor his present habeas at- Streetman the state eviden torney made a tactical choice to leave tiary personally evi- able to regarding dence present the voluntariness undeveloped some of the evidence. however, Streetman’s confessions undeveloped. Realistically, In- it cannot bе said stead, the failure due to petitioner counsel’s lack filing application that a his initial opportunity prepare. op for habeas relief who has had no real counsel admitted he unprepared portunity has, to consult asked the judge state trial evidentiary hearing, a continu- his silence at an following day ance until the so that he made tactical choice leave certain evi could discuss undeveloped. “matters outside the record” dence Nor is there indi only with Streetman. It was in mo- cation that silence was an had, tion for a dilatory continuance was denied and the tentional tactic. Streetman
961 2254(d),represents his fact, expedite execu- U.S.C. an actually acted to unwarrant- § insisting state district disregard thorough the ed of the state tion court’s possible earliest execution findings court set the competency on the of Streetman’s conclude, therefore, that neither We date. trial counsel. nor Streetman A brief recharacterization of the strategy failing in bypass to guilty of deliberate pursued by Streetman’s habeas counsel and develoр material facts at the adequately testimony the before the state habeas court evidentiary hearing.8
the state
important light
shed
on the “new” material
majority
facts which the
seek to
now
em-
VI.
1983,
phasize.
in
Streetman
tried
material facts were not ade-
Because
capital
conviction
sentence
developed
evidentiary
state
quately
at the
Texas
affirmed
the
of
Court
Criminal
hearing
Streetman’s failure to
and because
3, 1986,
Appeals
January
in 1985. On
in
to
develop the facts
not due
“inex-
so
court,
open
expressed
Streetman
his desire
neglect,”
district court
the federal
cusable
early
to have
execution
set as
the
date
motion
an
denying
in
for
erred
possible
any
and to avoid
further action
hearing. Consequently, we
evidentiary
taken on
execution.
delay
his behalf
Ex-
and REMAND for such hear-
REVERSE
6,
for February
ecution
set
1986. On
permit
development
full
ing in
order
January
prevailed upon
Streetman was
of material facts.
sign
applica-
an affidavit attached to an
AND REMANDED.
REVERSED
for
corpus.
tion
writ of habeas
state
The
application,
per-
which recited in detail thе
JONES,
Judge,
H.
dis-
EDITH
Circuit
strategy,
attorneys’
ceived
in his
flaws
senting:
was not
until the
filed
afternoon
Febru-
majority
ordered a remand to
The
ary
days later.
court
five
The
ordered
evidentiary hearing
for
the district court
an
hearing
following
evidentiary
morn-
competency
peti-
on the constitutional
ing.
family appeared
and his
capital
in his
tioner’s trial counsel
murder
attorney,
Gray.
hearing
with his
Will
majority
case. The
conclude
Street-
delayed
hearing
The
for 40 min-
court
allegations imply that facts material
man’s
Gray
Streetman and
to con-
utes
allow
determining
his counsels’ effectiveness
requested
Gray
fer.
more than once
own,
were,
no
not
through
fault of
hearing
purpose
continuance of the
pro-
brought out in the state court habeas
expert
testify
obtaining
witnesses
ceedings.
respectfully
I
dissent
several
trial counsel’s effectiveness.
the issue of
view,
my
belated
In
reasons.
court,
originally
which
stated that
The trial
not
under the “de-
are
material
accusations
hearing
con-
he did
mind
should
ficiency” prong
Strickland
Wash-
ultimately
day,
refused
do
tinue another
80
ington,
sole reason
appeared that the
so when it
either mer-
L.Ed.2d
expert
would be to obtain
for continuance
evidentiary
federal court
its no additional
testimony.
deliberately by-
hearing
he has
because
hearing
hours and in-
lasted several
system,
the dis-
passed the
detailed,
meticulous ex-
lengthy,
volved
hearing
should conduct a
on the
trict court
strategy employed
the trial
amination on
bypass. Fi-
preliminary issue of deliberate
attorneys.
defense
by Streetman’s
I
that the conduct
an evi-
nally, believe
long.
hearing transcript
pages
is nearly 200
hearing,
pre-
dentiary
unrestrained
admissibility
of Street-
Testimony on
contained in 28
sumption
correctness
case,
State does not
In the instant
bypass
will
some
issue.
the deliberate
issue
While
hearing,
evidentiary
does
require
suggest any
for such
nor
it
its own
hear-
need
circumstances
always necessary.
already
ing,
such a
is not
indicate
additional evidence
Guice,
fact,
Courts
in both Townsend
produced
at such a
would
the record that
bypass
of deliberate
determined
absence
evidentiary hearing on
the benefit of an
without
occupies
insignifi-
a not
man’s confessions
been coerced. He told us 40 different thоu-
transcript.
things
portion
during
sand
cant
this trial.”1
Gray acknowledged
argument
oral
be-
I.
*12
that some of Streetman’s
fore this Court
Stripped
essentials,
to its
Streetman
him,
family members told
the state
before
claims,
majority
and the
find superficially
concluded,
alleged
promises
about
persuasive,
that his trial counsel failed
to induce him to con-
made to Streetman
properly
investigate
to
admissibility
the
presence in
Despite
fess.
their
the court-
his confessions because
room,
Streetman with-
counsel neither called these witness-
held from counsel at the trial level critical
es nor informed the state trial court of
facts concerning the confession.
testimony.
Street-
testify.
their
Streetman did not
man
always
has
held
key
the
to unlocking
findings
The trial court made written
this
It
information.
is not the failure of
law,
fact and conclusions
described accu-
counsel or of
proceedings,
but of
rately
strategy
the
trial
reasonable
Streetman himself that
predic-
creates the
counsel,
recommended that re-
before,
ament
in which he appears
denied,
lief be
forwarded
record to
Court.
Appeаls
the Texas Court of Criminal
on
5,1986.
February
stayed
Execution was
Under these circumstances Streetman’s
Appeals
the Court of Criminal
until March contention that his confessions were in-
17,
During
weeks,
by
1986.
those six
duced
Street-
valium and
promises
threats or
attempted
even
unavailing.
man never
inform the
should be
Effective assistance
Texas
that
courts
his claims were not ade-
depends upon
objective
counsel
rea-
quately developed.
sonableness of counsel’s conduct as well as
prejudice
by
alleged
caused
error.
The
thoroughly
state habeas court was
Washington,
Strickland v.
466 U.S.
apprised of the
basis
defense counsel’s
2052, 2065,
104 S.Ct.
excusable
and their
did not appreciate
States,
United
575 F.2d
fully
Buckelew v.
the relevance of
missing
evi-
(5th Cir.1978);
Zant,
519
Thomas v.
697 dence.” Id. at 507. Guice cannot be rec-
(11th Cir.1983),
986-88
F.2d
vacated
case,
onciled with this
in which petitioner
— U.S. —,
grounds,
on other
S.Ct.
represented
has been
by able counsel at
(1986). Erroneously,
L.Ed.2d
post-trial
trial and in
efforts and in which
believe,
bypassed
majority
I
that re
the state courts thoroughly considered
quirement
holding that
“habeas coun Streetman’s ineffectiveness claim.
preparation
consequent
sel’s lack of
enlightening
An
case in this area is
fully
failure to
articulate his ineffective
Zant,
977, (11th
Thomas v.
697 F.2d
Cir.
argument
assistance of counsel
before the
—
1983),vacated on other grounds,
state district
cause of his
—,
(1986),
only could have relief.4 Streetman
for habeas course, allegations the normal
raised courts, fully in the state them
aired presump- under the review
received federal state fact find- accorded
tion of correctness 2254(d). dilatory ings His U.S.C. § America, UNITED STATES of unfortunately majority led the tactics Plaintiff-Appellee, evidentiary a federal to order findings will be ac- which *15 no corded deference. Karen Ruth GORDON and David R. Woodcock, Defendants-Appellants. ordering mandatory fed- effect of hearing partic- evidentiary in this case eral No. 86-4556. crimi- ularly causes friction with state Appeals, United States Court Streetman waited until justice system. nal Fifth Circuit. stay hour sеek a of execu- the eleventh stays obtained two successive tion and then 9, 1987. March reviewing been while the courts have hearing had a full fair claims. He court, which culminated
the state trial specific findings and conclu-
the issuance of coun- pertaining effectiveness of
sions Court, having eyes This laid
sel.5 never counsel, concludes
Streetman or
out,
consistently reluc
majority point
Fifth Circuit has been
4. As the
"weak
evidentiary hearing
a federal
tant to order
case/strong
has
dismissed
case” tactic
been
petitioner
state court
a habeas
hearing
underwent
argued
lack of
the federal court when
brought
to federal
the claim
Certainly, it is
in the state courts.
exhaustion
1026,
Louisiana, 478 F.2d
See West v.
court.
remedy
appropriate
Streetman back
send
1973),
(5th
vacated on other
Cir.
1031-32
system present his "real”
state court
banc;
(5th Cir.1975)
grounds,
F.2d
en
510
363
1317,
initially.
King,
Joyner v.
786 F.2d
claims
1325,
(5th
Maggio,
F.2d
1328-29
v.
704
Baldwin
— U.S. —,
denied,
(5th Cir.1986), cert.
1320
denied,
1983),
467 U.S.
104 S.Ct.
cert.
Cir.
2669,
(1986). This is