UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50373 Summary Calendar __________________
Robert Lee Jones,
Petitioner-Appellee,
versus
Wayne Scott, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellant.
______________________________________________
Appeal from the United States District Court for the Western District of Texas (SA-94-CV-333) ______________________________________________
November 16, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
Petitioner-appellee Robert Jones ("Jones"), a Texas prisoner,
properly exhausted in Texas state courts his state habeas claim
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. that he had been denied the right to an appeal. The state district
court denied relief without making any findings. The Texas Court
of Criminal Appeals similarly denied relief. Jones then filed an
application for federal habeas relief pursuant to 28 U.S.C. § 2241.
The federal district court granted the petition. Respondent-
appellant Wayne Scott ("Respondent") appeals from the district
court's judgment granting Jones habeas relief and ordering that he
be released from prison if not granted an out-of-time appeal within
sixty days. We will affirm.
BACKGROUND
Jones was convicted of forgery by passing on May 20, 1988, and
was sentenced to a term of five years probation. On July 13, 1992,
the state sought to revoke, alleging that Jones had violated the
terms of his probation as a result of his indictment on November
19, 1991 for aggravated assault and his failure to report to his
assigned probation officer. Thomas Morris was appointed to
represent Jones at a November 10, 1992 hearing on the motion to
revoke. Jones stipulated that the allegation of an aggravated
assault indictment was true. After several continuances, the trial
court revoked Jones's probation on April 7, 1993, and sentenced him
to a five-year term of imprisonment.
Jones did not file a direct appeal. Jones filed an
unsuccessful "motion to set aside judgment" in the trial court and
then sought state habeas relief, alleging that he had been denied
the right to appeal. The trial court denied the petition without
2 entering findings and the Texas Court of Criminal Appeals
subsequently denied the petition without a written order.
Jones then filed an application for writ of federal habeas
corpus, alleging that his attorney abandoned him after his
probation was revoked and failed to advise him of his right to
appeal or to file an appeal on his behalf. Jones also asserted
that the state trial court had failed to advise him of his right to
appeal. Respondent answered the petition, arguing that under Tex.
Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1995), Jones
had no right to appeal the revocation of probation. The magistrate
judge rejected Respondent's argument because section 5(b) applies
only to defendants who have received a deferred adjudication. See
Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a), (b) (West Supp.
1995). Because Jones was convicted and sentenced to a term of
probation, the magistrate judge concluded he had a right to appeal
the revocation. See id. § 23(b). Because Respondent offered no
evidence to controvert Jones's allegations that neither the trial
court nor his attorney informed him of his right to appeal and that
his attorney failed to appeal despite Jones's request that he do
so, the magistrate judge recommended that the district court grant
Jones's petition and order him released if Respondent did not grant
an out-of-time appeal within sixty days.
The district court found that Jones's sworn statement that he
had asked counsel to appeal and counsel had failed to do so was
based on personal knowledge and that Respondent failed to
controvert Jones's allegation. The district court accepted the
3 magistrate judge's recommendation.1 We granted Respondent's motion
to stay execution of the writ pending appeal.
DISCUSSION
A. Sufficiency of Jones's Sworn Statement
Respondent initially asserts that the district court erred in
determining that Jones's sworn statement that he was denied his
right to appeal was sufficient to support the grant of habeas
relief. Respondent argues that Jones's conclusory allegation
cannot support habeas relief. See Ross v. Estelle, 694 F.2d 1008,
1011 (5th Cir. 1983). The district court concluded that Jones's
sworn statement was not conclusory because it was based upon
Jones's own personal knowledge, not merely speculation. In Ross,
the petitioner asserted that his counsel was ineffective because a
key alibi witness was never investigated or interviewed. Id. The
petitioner alleged in his pro se brief that the witness would have
placed him at another place when the crime occurred; the court
found that no evidence in the record supported this assertion. Id.
Clearly, Ross involved a petitioner who asserted matters about
which he had no personal knowledge, i.e., what a witness's
testimony would have shown. In contrast, Jones's sworn testimony
was based on personal knowledgeSQhe requested that counsel file an
appeal, which counsel failed to do. Jones made more than a
conclusory allegation, and the district court did not err in
1 The district court found that it would be more appropriate for the state courts to conduct a substantive review of the state court revocation proceeding.
4 finding that Respondent bore the burden to come forward with
controverting evidence. See Koch v. Puckett, 907 F.2d 524, 529-30
(5th Cir. 1990) (concluding petitioner's allegations were
conclusory and insufficient to support habeas relief on the basis
of an alleged collusive agreement between sheriff and petitioner's
attorney because petitioner alleged neither personal knowledge of
a collusive agreement nor specific or concrete sources of the
information).
B. Presumption of Correctness under § 2254(d)
Respondent also contends that the district court erred in
failing to presume correct the implicit credibility choice made by
the state court judge in denying Jones's habeas petition. Under 28
U.S.C. § 2254(d), a state court's findings of fact made after a
hearing on the merits are presumed to be correct unless one of
eight exceptions applies. See Williams v. Collins, 16 F.3d 626,
631 (5th Cir.), cert. denied, U.S. , 115 S. Ct. 42 (1994). A
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50373 Summary Calendar __________________
Robert Lee Jones,
Petitioner-Appellee,
versus
Wayne Scott, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellant.
______________________________________________
Appeal from the United States District Court for the Western District of Texas (SA-94-CV-333) ______________________________________________
November 16, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
Petitioner-appellee Robert Jones ("Jones"), a Texas prisoner,
properly exhausted in Texas state courts his state habeas claim
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. that he had been denied the right to an appeal. The state district
court denied relief without making any findings. The Texas Court
of Criminal Appeals similarly denied relief. Jones then filed an
application for federal habeas relief pursuant to 28 U.S.C. § 2241.
The federal district court granted the petition. Respondent-
appellant Wayne Scott ("Respondent") appeals from the district
court's judgment granting Jones habeas relief and ordering that he
be released from prison if not granted an out-of-time appeal within
sixty days. We will affirm.
BACKGROUND
Jones was convicted of forgery by passing on May 20, 1988, and
was sentenced to a term of five years probation. On July 13, 1992,
the state sought to revoke, alleging that Jones had violated the
terms of his probation as a result of his indictment on November
19, 1991 for aggravated assault and his failure to report to his
assigned probation officer. Thomas Morris was appointed to
represent Jones at a November 10, 1992 hearing on the motion to
revoke. Jones stipulated that the allegation of an aggravated
assault indictment was true. After several continuances, the trial
court revoked Jones's probation on April 7, 1993, and sentenced him
to a five-year term of imprisonment.
Jones did not file a direct appeal. Jones filed an
unsuccessful "motion to set aside judgment" in the trial court and
then sought state habeas relief, alleging that he had been denied
the right to appeal. The trial court denied the petition without
2 entering findings and the Texas Court of Criminal Appeals
subsequently denied the petition without a written order.
Jones then filed an application for writ of federal habeas
corpus, alleging that his attorney abandoned him after his
probation was revoked and failed to advise him of his right to
appeal or to file an appeal on his behalf. Jones also asserted
that the state trial court had failed to advise him of his right to
appeal. Respondent answered the petition, arguing that under Tex.
Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1995), Jones
had no right to appeal the revocation of probation. The magistrate
judge rejected Respondent's argument because section 5(b) applies
only to defendants who have received a deferred adjudication. See
Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a), (b) (West Supp.
1995). Because Jones was convicted and sentenced to a term of
probation, the magistrate judge concluded he had a right to appeal
the revocation. See id. § 23(b). Because Respondent offered no
evidence to controvert Jones's allegations that neither the trial
court nor his attorney informed him of his right to appeal and that
his attorney failed to appeal despite Jones's request that he do
so, the magistrate judge recommended that the district court grant
Jones's petition and order him released if Respondent did not grant
an out-of-time appeal within sixty days.
The district court found that Jones's sworn statement that he
had asked counsel to appeal and counsel had failed to do so was
based on personal knowledge and that Respondent failed to
controvert Jones's allegation. The district court accepted the
3 magistrate judge's recommendation.1 We granted Respondent's motion
to stay execution of the writ pending appeal.
DISCUSSION
A. Sufficiency of Jones's Sworn Statement
Respondent initially asserts that the district court erred in
determining that Jones's sworn statement that he was denied his
right to appeal was sufficient to support the grant of habeas
relief. Respondent argues that Jones's conclusory allegation
cannot support habeas relief. See Ross v. Estelle, 694 F.2d 1008,
1011 (5th Cir. 1983). The district court concluded that Jones's
sworn statement was not conclusory because it was based upon
Jones's own personal knowledge, not merely speculation. In Ross,
the petitioner asserted that his counsel was ineffective because a
key alibi witness was never investigated or interviewed. Id. The
petitioner alleged in his pro se brief that the witness would have
placed him at another place when the crime occurred; the court
found that no evidence in the record supported this assertion. Id.
Clearly, Ross involved a petitioner who asserted matters about
which he had no personal knowledge, i.e., what a witness's
testimony would have shown. In contrast, Jones's sworn testimony
was based on personal knowledgeSQhe requested that counsel file an
appeal, which counsel failed to do. Jones made more than a
conclusory allegation, and the district court did not err in
1 The district court found that it would be more appropriate for the state courts to conduct a substantive review of the state court revocation proceeding.
4 finding that Respondent bore the burden to come forward with
controverting evidence. See Koch v. Puckett, 907 F.2d 524, 529-30
(5th Cir. 1990) (concluding petitioner's allegations were
conclusory and insufficient to support habeas relief on the basis
of an alleged collusive agreement between sheriff and petitioner's
attorney because petitioner alleged neither personal knowledge of
a collusive agreement nor specific or concrete sources of the
information).
B. Presumption of Correctness under § 2254(d)
Respondent also contends that the district court erred in
failing to presume correct the implicit credibility choice made by
the state court judge in denying Jones's habeas petition. Under 28
U.S.C. § 2254(d), a state court's findings of fact made after a
hearing on the merits are presumed to be correct unless one of
eight exceptions applies. See Williams v. Collins, 16 F.3d 626,
631 (5th Cir.), cert. denied, U.S. , 115 S. Ct. 42 (1994). A
determination of ineffective assistance of counsel is a mixed
question of law and fact and, thus, is not accorded the presumption
of correctness. Black v. Collins, 962 F.2d 394, 401 (5th Cir.),
cert. denied, 504 U.S. 992 (1992). "However, any subsidiary
factual findings made by a state court in the course of determining
that effective assistance was rendered is entitled to the § 2254(d)
presumption." Id.
The presumption of correctness is not applicable in the
instant cause because no state court has ever made factual findings
5 with regard to Jones's allegation that he was not informed of his
right to appeal. Under section 2254(d), a determination evidenced
by "a written finding, written opinion, or other reliable and
adequate written indicia, shall be presumed to be correct." Both
the state district court and the Court of Criminal Appeals denied
Jones's petition without any findings.
Respondent nevertheless asserts that the state courts
implicitly found Jones's sworn testimony not credible and that this
court must give deference to that implicit determination. The
cases Respondent cites, however, involve situations where a full
evidentiary hearing on the merits was held and the state court
entered some factual findings. See Self v. Collins, 973 F.2d 1198,
1213-14 (5th Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1613
(1993); Lavernia v. Lynaugh, 845 F.2d 493, 499-500 (5th Cir. 1988);
see also Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir. 1983)
(concluding presumption applicable despite the absence of written
findings where there had been a full evidentiary hearing and
findings were inferrable from the written judgment). In the
instant cause, no state court ever held an evidentiary hearing or
made any factual findings regarding Jones's allegations.
By its very terms, section 2254(d) clearly does not envision
that the presumption will be afforded under the circumstances of
the present case. 28 U.S.C. § 2254(d)(1), (2), (8).2 Because
2 Respondent also alleged that Jones was informed of his right to appeal by the boilerplate language in the written judgment revoking probation, which stated that Jones "was duly admonished according to law." This allegation is directly refuted by the transcript of the revocation hearing, which
6 Jones had a right to appeal the revocation of his probation, this
Court presumes Jones suffered prejudice if he was unable to appeal
because of counsel's ineffective performance. United States v.
Gipson, 985 F.2d 212, 215 (5th Cir. 1993). We therefore conclude
that the district court did not err in granting Jones's habeas
petition.
AFFIRMED.
clearly establishes that Jones was not informed of his right to appeal by the district court. Although Respondent suggests that correspondence between Jones and his attorney indicates that counsel informed Jones of his right to appeal, we need not consider this contention because Respondent failed to raise the issue in district court, and he presented it to this court for the first time in his reply brief. See National Labor Relations Bd. v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1342 (5th Cir. 1993). In any event, the letters do not refute Jones's unchallenged assertion that he requested counsel to appeal.