Case Information
*1 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM: [*]
Gаylon George Walbey, Jr., Texas death row prisoner # 999114,
was convicted of capital murder under Texas Penal Code Section
19.03(a)(2) and was sentenced to death for this offense. Walbey v.
State,
*2 Following an evidentiary hearing at which trial counsel and Wills testified, the state habeas trial court rejected most of counsel’s testimony as not credible. Based on these specifiс findings, that court concluded that Walbey’s trial counsel had failed to prepare Dr. Wills to testify and had failed to perform the investigation, including obtaining a medical health exрert, necessary to a rational strategy choice for the punishment phase of the trial. The state habeas trial court ruled that Walbey would not have been sentenced to death had counsel presented the jury with “the wealth of mitigating evidence.” The Texas Court of Criminal Appeals (“TCCA”) rejected this conclusion and denied relief. Ex parte Walbey, No. 41323-01 (Tex. Crim. App. June 2, 1999) (unpublished).
Walbey filed an application for habeas corpus under 28 U.S.C. § 2254 (“§ 2254") in federal district court. Among other issues asserted by Walbey was a claim that his counsel had been ineffective during the punishment phase of the trial for failing to investigate a mitigation defense and in failing to prepare Dr. Wills for cross- examination. Walbey аrgued that the ruling of the TCCA was an unreasonable application of federal law to the facts as found by the state habeas trial court. The district court considered the mаtter and denied Walbey’s § 2254 application. The district court conducted an “independent review of the facts” and found, based on “overwhelming evidence,” that defense counsel’s performance was neither deficient nor prejudicial to Walbey’s defense. We *3 granted Walbey a certificate of appealability (COA) based on his allegation that the district court erred by failing to defer to the findings of fact made by the state habeas trial court.
In addressing a § 2254 application for federal habeas relief
thаt raises claims adjudicated in state court, a federal court must
defer to a state court’s resolution of both pure questions of law
and mixed questions of law and fact unless the state court’s
determination was “contrary to” or an “unreasonable application” of
clearly established federal law as determined by the Supreme Court.
28 U.S.C. § 2254(d); Hill v. Johnsоn,
To determine whether a Texas state habeas trial court’s factual
findings are viable following review by the TCCA, we look to the
action taken by the latter court. In Craker v. Procunier, 756 F.2d
1212, 1213-14 (5th Cir. 1985), we concluded that the state habeas
trial court’s factual findings survived appeal even though the TCCA
reached a legal conсlusion contrary to that of the trial court. Our
determination that the factual findings had survived TCCA review was
based on the observation that the TCCA had not rejected the facts
*4
as found by the trial court but had held instead that relief was
not available under those facts. Craker,
Micheaux,
In the instant case, the TCCA’s order denying Walbey habeas relief stated:
This Court has reviewed the record with respect to the allegations made by [Walbey]. Pursuant to that review, we reject the judge’s conclusions of law as not supported by the record. We further find that applicant has failed to meet his burden to show his counsel was ineffective.
Ex parte Walbey, No. 41323-01. This case does not presеnt the same
situation that was presented in Craker, where we determined that
the TCCA had “held that the facts as found did not entitle Craker
to relief.” Craker,
There is nothing in the language of thе TCCA’s order in this case, however, that would support a similar conclusion. Here, the *5 order of the TCCA is silent as to the state habeas trial court’s findings of fact. The TCCA’s statement rejeсting the trial court’s conclusions of law as not supported by the record fails to inform whether the TCCA accepted or rejected, in whole or in part, the factual findings of thе trial court based on that record.
On the Craker/Micheaux continuum, the situation presented in
the instant case is closer to the Micheaux end, as in that case the
TCCA neither adopted nor incorporated the proposed findings of fact
made by the state habeas trial court. Micheaux,
Our review cannot end here, however. Our having established that the TCCA did not adopt the factual findings of the state habeas trial court presents the question whether the TCCA resolved all disputed factual issues in its opinion denying habeаs relief. We must therefore ascertain whether counsel’s actions were “strategic and reasonable are questions of fact. . . .” United States v. Cockrell, 720 F.2d 1423, 1426 (5th Cir. 1983). Whether the performance of Walbey’s trial counsel was deficient with respect to investigating defense strategies or preparing defense witnesses is inseparable from a factuаl determination whether trial counsel’s testimony before the state habeas trial court was credible.
The opinion of the TCCA, which simply rejected the trial
court’s conclusion of ineffective assistance of counsel as
unsupported by the record, is not sufficiently plain to allow a
federal court to infer that the TCCA made factual findings that
defеnse counsel was credible and that his investigation of the
mitigation defense was adequate. As it contains no specific
factual findings or reasoning to support its ultimate cоnclusion,
the terse opinion of the TCCA here is the functional equivalent of
a denial without written order. And, a federal court may not infer
from a denial without written order that the state appellate court
*7
necessarily resolved all factual issues against the petitioner.
Goodwin v. Johnson,
VACATED and REMANDED with instructions.
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.