REVISED - December 12, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30693
ROBERT WILKERSON, Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
Appeal from the United States District Court for the Middle District of Louisiana
December 6, 2000
Before POLITZ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
POLITZ, Circuit Judge:
Robert Wilkerson appeals the denial of his second habeas corpus petition
brought under 28 U.S.C. § 2254. For the reasons assigned, we vacate the decision
of the district court and remand for further proceedings consistent herewith. BACKGROUND
In 1973, while an inmate at Louisiana State Penitentiary at Angola,
Wilkerson and fellow inmate Grady Brewer were convicted of the second-degree
murder of inmate August Kelly, who was stabbed to death in a prison fight. On
appeal, the Louisiana Supreme Court vacated Wilkerson’s conviction, holding that
the trial court abused its discretion in requiring Wilkerson to appear before the jury
handcuffed, shackled, and with his mouth taped.1 On retrial, Wilkerson was
convicted and received a sentence of life imprisonment.
The state’s only evidence that Wilkerson committed the crime was the
eyewitness testimony of inmate William Riley who testified at both trials that he
was standing within four to five feet of the altercation and witnessed Wilkerson
stab Kelly. There was no physical evidence linking Wilkerson to the murder.
Although eight knives were seized from prisoners, the knife used to inflict the fatal
wounds was never discovered. No fingerprints were found; no blood samples were
taken. Wilkerson’s conviction was affirmed on direct appeal. 2
After exhausting his state remedies, Wilkerson filed a federal habeas petition
1 State v. Brewer, 301 So.2d 630 (La. 1974). These restraints were imposed due to an unseemly outburst by Brewer. 2 State v. Wilkerson, 326 So.2d 353 (La. 1976).
2 under 28 U.S.C. § 2254 asserting that: (1) women were excluded from the grand
jury venire in violation of the Constitution; (2) an individual member of the grand
jury should have been excluded on the grounds of improper domicile; (3) he was
denied an adequate opportunity to cross-examine Riley; (4) he was wrongly
handcuffed and shackled at his second trial; and (5) counsel was ineffective for
failing to reargue a previously denied motion to quash the indictment based on the
exclusion of women from the grand jury venire, failing to move to quash the
indictment based on the allegedly unqualified grand juror, and failing to object
when he was handcuffed and shackled at the second trial.3 Bound by precedent,
the panel granted habeas relief on the grand jury composition claim, but requested
the court to reconsider the issue en banc. Wilkerson’s other constitutional
challenges were rejected as without merit.4 On rehearing, the en banc court
reversed the panel’s decision based on Daniel v. Louisiana,5 which held that Taylor
v. Louisiana6 did not apply retroactively to convictions obtained by juries
empaneled prior to Taylor’s effective date. Thus, Taylor’s holding, that
3 Wilkerson v. Whitley, 16 F.3d 64 (5th Cir. 1994). 4 Id. at 66-68. 5 420 U.S. 31 (1975). 6 419 U.S. 522 (1975).
3 Louisiana’s constitutional provision allowing women to be exempt from petit jury
service violated the Constitution, did not affect the validity of Wilkerson’s
conviction. The en banc court reinstated the panel’s opinion in all other respects,
and the Supreme Court denied certiorari.7
In August 1995, Wilkerson filed the instant habeas petition in the district
court in which he raised three issues that were rejected in his prior § 2254 petition:
grand jury composition; shackling; and limitation on cross-examination. Wilkerson
also raised a new ineffective assistance of counsel claim, alleging that counsel was
ineffective for failing to call John Baugh as a defense witness at the second trial.
Baugh was one of the prison guards working on the tier the morning of the murder
and had released the inmates from their cells to the showers. He testified at the first
trial for the prosecution. This ineffective assistance claim was not raised in any
prior habeas petition, although Wilkerson concedes knowledge of the facts relative
to the claim were known to him when those petitions were filed.
The petition was referred to a magistrate judge who recommended that the
writ be denied. Adopting the responsive report and recommendation, the district
court rejected all of Wilkerson’s constitutional claims and denied him a Certificate
7 Wilkerson v. Whitley, 28 F.3d 498 (5th Cir. 1994) (en banc), cert. denied, 513 U.S. 1085, and reh’g denied, 513 U.S. 1199 (1995).
4 of Probable Cause. On appeal to this Court, Wilkerson’s request for a CPC initially
was denied. That order, however, was vacated and a CPC subsequently was
granted.
ANALYSIS
Ordinarily, under Rule 9(b) of the rules governing federal habeas corpus
petitions, a federal court will not entertain a successive or otherwise abusive
petition.8 An exception exists if a petitioner can prove that he is “actually
innocent” of the crime of conviction.9 That is, if a petitioner can establish, through
new evidence not previously available, that “it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence,” 10 a
8 Rule 9(b) provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. 28 U.S.C. foll. § 2254. Wilkerson’s petition is both successive and abusive. As noted, his first three constitutional challenges were reviewed and rejected on the merits by this court and the fourth claim could have been raised in his prior petitions. See Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986) (acknowledging the distinction between the two terms).
9 Schlup v. Delo, 513 U.S. 298 (1995). 10 Id. at 327.
5 federal court may consider otherwise barred constitutional claims in order to avoid
a “fundamental miscarriage of justice.”11 Reconsideration of constitutional
challenges rejected on the merits by a previous federal court is reserved for only
exceptional cases because, as noted in Schlup, a substantial showing of actual
innocence is extremely rare.12 To justify granting the writ a habeas petitioner must
also show that an independent constitutional violation occurred at the trial that
probably resulted in his conviction.13 Wilkerson’s new evidence consists of
the following. On June 16, 1988, William Riley executed an affidavit in which he
recanted his testimony and stated that he did not witness the killing but, rather,
merely related to prison officials what another inmate had told him. Similarly,
inmate Charles Lawrence, who testified at the first trial but not the second,
executed two affidavits in which he recanted his testimony. In the first, dated April
19, 1988, Lawrence avers that his testimony “should not have been considered
credible” because he was coerced into testifying on behalf of the state. He stated
that prison officials threatened to indict him for Kelly’s murder and would revoke
his pending release date if he did not testify. In his affidavit dated July 27, 1995,
11 Id. at 321. 12 Id. at 321-22. 13 Id. at 327; Murray v. Carrier, 477 U.S. 478, 496 (1986).
6 Lawrence repeated the statements from his first affidavit and added that he knew
Wilkerson had no part in the killing because he was standing next to Wilkerson
when the offense was committed. In 1997 Grady Brewer, Wilkerson’s
codefendant, executed an affidavit admitting sole responsibility for Kelly’s death.
At the second trial Brewer testified that he stabbed Kelly in the chest and back, but
he did not say that Wilkerson was not involved.
In reviewing the instant petition the district court did not conduct an
evidentiary hearing to determine the reliability of these affidavits. Like the
magistrate judge, the court assumed that Wilkerson had met the requisite showing
of actual innocence and it then considered his four allegations of constitutional
error. Each was rejected. Accordingly, for present purposes, we now assume the
validity of these affidavits and address each of Wilkerson’s claims. Because this
habeas petition was filed in 1995, prior to the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996, we apply the law as it existed prior to the
AEDPA’s effective date.14 We review the district court’s conclusions of law de
novo, and will uphold its findings of fact unless they are clearly erroneous.15 A
14 Lindh v. Murphy, 521 U.S. 320 (1997); Gochicoa v. Johnson, 118 F.3d 440 (5th Cir. 1997). 15 Fairman v. Anderson, 188 F.3d 635 (5th Cir. 1999).
7 state court’s determination of a factual issue is presumed to be correct and will be
upheld unless, among other things, it is not fairly supported by the record as a
whole.16
Wilkerson contends that the trial court violated his rights under the
Confrontation Clause by unduly restricting defense counsel’s cross-examination of
Riley, the purported eyewitness to the crime. More specifically, defense counsel
was not permitted to question Riley about letters he had written to prison
administrators prior to Wilkerson’s first trial concerning a transfer request and his
decision to testify for the state.17 The trial court limited the scope of counsel’s
questioning to whether Riley had received anything of value in exchange for his
testimony.
Whether the trial court violated Wilkerson’s rights under the sixth and
fourteenth amendments is a mixed question of law and fact that we review de
novo.18 Habeas relief may be granted based on the state court’s erroneous
evidentiary ruling only if that ruling violated Wilkerson’s constitutional rights or
16 28 U.S.C. § 2254(d); Sumner v. Mata, 455 U.S. 591 (1982). 17 Riley testified that he was transferred in either September or October of 1973, after Wilkerson’s first trial. Riley also stated, outside the presence of the jury, that he was transferred in July 1973, before the first trial. 18 Gochicoa, 118 F.3d at 445.
8 rendered his trial fundamentally unfair.19 “Cross-examination is the principal
means by which the believability of a witness and the truth of this testimony are
tested.”20 Although the scope of cross-examination is within the discretion of the
trial court and, as such, it may impose reasonable limits on defense counsel’s
inquiry, “that discretionary authority comes about only after sufficient cross
examination has been granted to satisfy the Sixth Amendment.” 21
The trial court held that the letters and circumstances surrounding Riley’s
transfer had no bearing on his credibility as a witness. We disagree. It is axiomatic
that defense counsel should be permitted to expose to the jury facts relative to a
witness’ possible motivation to testify favorably for the prosecution or his potential
bias for or against any party to the criminal proceeding.22 Such information is
“always relevant as discrediting the witness and affecting the weight of his
testimony.”23 In the instant case, it is undisputed that in the subject letters Riley
19 Johnson v. Puckett, 176 F.3d 809 (5th Cir. 1999). 20 Davis v. Alaska, 415 U.S. 308, 316 (1974). 21 United States v. Landerman, 109 F.3d 1053, 1061 (5th Cir. 1997) (citing United States v. Restivo, 8 F.3d 274 (5th Cir. 1993)). 22 Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis, 415 U.S. at 316-17. 23 Landerman, 109 F.3d at 1062 (quoting Davis, 415 U.S. at 316).
9 requested a transfer, one which he ultimately received. That transfer may not have
been part of a “deal” with the state but, as we have stated previously, “[w]hat tells,
of course, is not the actual existence of a deal but the witness’ belief or disbelief
that a deal exists.”24 Further, the imperative of protecting a defendant’s right to
effective cross-examination is even more critical where, as here, the witness is
crucial to the prosecution’s case.25
Although the defense was able to challenge Riley’s credibility in general,26
we are not persuaded that Wilkerson was afforded an adequate opportunity to
cross-examine him on the issue of his credibility tightly focused on his veracity in
the instant trial.27 While defense counsel was allowed to inquire whether Riley
24 United States v. Hall, 653 F.2d 1002, 1008 (5th Cir. 1981) (quoting United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976)). 25 United States v. Mizell, 88 F.3d 288 (5th Cir. 1996); United States v. Cooks, 52 F.3d 101 (5th Cir. 1995). 26 Defense counsel was able to establish that Riley was dishonorably discharged from the Marines and, through defense witnesses, that he had a reputation at the penitentiary for being untruthful. In addition, the jury obviously was aware that Riley was an inmate at Angola, and he admitted that he was serving time for armed robbery.
27 Davis, 415 U.S. at 316 (“A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.”).
10 actually received anything in exchange for his testimony, “counsel was unable to
make a record from which to argue why [Riley] might have been biased or
otherwise lacked that degree of impartiality expected of a witness at trial.”28 Even
more critical, because of the limited extent of cross-examination permitted, the jury
may well have inferred that defense counsel merely was “engaged in a speculative
and baseless line of attack” on Riley’s credibility.29
The state insists that inquiry into the letters and subsequent transfer would
have unduly prejudiced the defense because the jury would have learned that
Wilkerson previously was convicted of Kelly’s murder, and could have inferred
that Riley was seeking a transfer to get away from Wilkerson. We reject this
contention for two reasons. First, the jury already was aware that Wilkerson had
gone to trial for Kelly’s murder and that the verdict had been reversed on appeal.
During voir dire, when questioned about whether he had heard anything about the
case, one potential juror responded that he understood that the case had been to the
state Court of Appeal and had been referred back for retrial. This statement was
made in open court in the presence of the other potential and empaneled jurors.
Second, on cross-examination Riley admitted that in October 1973, around the time
28 Davis, 415 U.S. at 318. 29 Id.
11 of Wilkerson’s first trial, he told his family that he feared for his life because one
of the prison guards told another inmate to “get him.” Thus, the jury could have
inferred that Riley was afraid, not of Wilkerson, but of this other inmate and prison
guard. Regardless, it was within the exclusive province of the jury to make this
determination.30 Clearly, the jury was denied information essential to its
assessment of Riley’s believability and, in turn, of the strength of the state’s case
against the defendant. We must conclude that the trial court deprived Wilkerson
of his sixth amendment right to confront fully the witnesses against him.
Having reached this conclusion, we must determine whether the error was
harmless. Resolution of this inquiry turns on whether the constitutional violation
“had substantial and injurious effect or influence in determining the jury’s
verdict.”31 Under this standard, a petitioner may obtain habeas relief only if there
30 Riley’s admission that he feared he would be killed by someone on the tier, other than Wilkerson, when coupled with the numerous letters he wrote to prison administration requesting a transfer, is even stronger evidence that inquiry into these matters should have been permitted. Indeed, Riley had “considerable incentive... to ‘slant, unconsciously or otherwise, his testimony in favor of or against a party.’” United States v. Cooks, 52 F.3d at 104 (quoting United States v. Abel, 469 U.S. 45, 52 (1984)). 31 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that harmless error standard announced in Kotteakos v. United States, 328 U.S. 750 (1946), applied to habeas review of constitutional claims). See also California v. Roy, 519 U.S. 2 (1996), and O’Neal v. McAninch, 513 U.S. 432 (1995).
12 is “more than a mere reasonable possibility that [the error] contributed to the
verdict.”32 As emphasized above, the prosecution’s case hinged on Riley’s
supposed eyewitness account of Kelly’s murder. There was no other evidence,
physical or otherwise, that connected Wilkerson to the crime. Had the jury
believed that Riley was testifying to curry favor with the state, or that he expected
some real or perceived benefit in return, the state’s case would have been seriously
undermined. Accordingly, it is apparent that there is more than a reasonable
possibility that the verdict may have been different had defense counsel been
permitted to inquire fully into these matters. We therefore must conclude that this
constitutional error, in this setting, would warrant the grant of habeas relief. 33
Wilkerson next contends that he was denied a fair trial because the indicting
grand jury systematically excluded women, and because he and the defense
witnesses were forced to appear before the jury handcuffed and shackled.
Wilkerson is not entitled to habeas relief on these issues for the reasons as set forth
in this court’s prior opinions.34
Finally, Wilkerson complains that defense counsel was ineffective for failing
32 Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (emphasis omitted). 33 Schlup, 513 U.S. at 327. 34 Wilkerson v. Whitley, 28 F.3d. 498 (en banc); 16 F.3d 64 (5th Cir. 1994).
13 to call prison guard Baugh as a defense witness in the second trial. 35 Wilkerson
contends that if Baugh had testified substantially as he did in the first trial, the
defense would have shown that: (1) Baugh could not identify Wilkerson as having
been involved in the murder; (2) Riley had a motive to testify for the prosecution
because he was the only inmate on the tier who was not charged with Kelly’s
murder; and (3) Baugh’s account of the events and, specifically, of Wilkerson’s and
Brewer’s behavior, was inconsistent with Riley’s testimony.
To prevail on an ineffective assistance of counsel claim, the defendant must
prove that counsel’s performance was both deficient and that the deficiencies were
so prejudicial that, but for the errors, there is a reasonable probability that the result
would have been different.36 Counsel is entitled to a presumption that his
performance was adequate and “complaints of uncalled witnesses are not favored,
35 As stated earlier, Wilkerson did not raise this claim of ineffective assistance in any of his previous state or federal petitions, although he certainly could have. The magistrate and district court concluded, however, that Wilkerson had exhausted his state remedies with respect to this claim because it was merely a variation on the previous ineffective assistance claims that had been raised and rejected. Regardless, even if Wilkerson has failed to exhaust his state remedies, because exhaustion is not jurisdictional, under pre-AEDPA law we retain the discretion to reach the merits of the petition “to avoid unnecessary delay in granting relief that is plainly warranted.” Granberry v. Greer, 481 U.S. 129, 135 (1987); Graham v. Johnson, 94 F.3d 958 (5th Cir. 1996). 36 Strickland v. Washington, 466 U.S. 668 (1984).
14 because the presentation of testimonial evidence is a matter of trial strategy.” 37
At Wilkerson’s first trial, Baugh testified that he released eleven inmates
from their cells to go to the showers, including Kelly, Wilkerson, Brewer, and
Riley. The inmates congregated at the back of the tier for a meeting and Baugh
overheard inmate Abraham Thompson arguing with Wilkerson. He also heard
Wilkerson tell Thompson that he “didn’t know anything about it” and that
Thompson should ask Kelly. Thompson then started talking to Kelly. A few
minutes later, Baugh noticed that Brewer was acting “like he wanted to fight with
somebody,” but then he “quitened [sic] down.” A fight began shortly thereafter.
There was a “big crowd... in the corner” and it looked like three to five unidentified
inmates were fighting. The inmates initially ignored Baugh’s instructions to stop
fighting, but they eventually returned to their cells, leaving Kelly dying on the
floor. When asked about the whereabouts of Riley and Lawrence, Baugh replied
that all of the inmates were at the end of the tier where the fight occurred. He also
testified that he did not see anyone using a weapon. Our review of the record
persuades that defense counsel was not ineffective for failing to call Baugh as a
defense witness in the second trial.
37 United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983) (internal quotations and citations omitted).
15 For these reasons, we VACATE the decision of the district court and
REMAND for further proceedings consistent herewith including, but not
necessarily limited to, a determination of the reliability of certain affidavits that
heretofore has been assumed.
16 EMILIO M. GARZA, Circuit Judge, specially concurring:
A Louisiana jury found Robert Wilkerson guilty of murdering fellow inmate
August Kelly during a prison melee in 1973. The prosecution’s key witness,
inmate William Riley, testified that he saw Wilkerson stab Kelly, but he has since
altered his testimony. I agree with the majority that we cannot hear Wilkerson’s
abusive and repetitive federal habeas corpus petition until an evidentiary hearing
has shown him “actually innocent.” I, however, do not join the majority’s Sixth
Amendment analysis because I believe it is premature.
The majority correctly notes that Wilkerson must show that he is, more likely
than not, “actually innocent” to be able to present his third habeas petition. See
Schlup v. Delo, 513 U.S. 298 (1995). The claim of actual innocence does not itself
provide a basis for relief. It merely serves as “a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim considered
on the merits.” Id. at 315 (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The district court must hold an evidentiary hearing to assess the newly
introduced affidavits because there are reasons to doubt their reliability. First, as
a general matter, an affidavit, which is usually prepared by an attorney, states only
what an affiant will purportedly testify about. It cannot replace a live hearing
where a court can judge an affiant’s reliability. As Schlup warned, “new statements
-17- may, of course, be unreliable.” Id. at 331. Second, Riley submitted his affidavit
fifteen years after the murder had occurred. Courts treat last-minute affidavits
with “a degree of skepticism” because “[i]t seems that, when a prisoner's life is at
stake, he often can find someone new to vouch for him.” Herrera, 506 U.S. at 423.
Third, we should question Riley’s credibility, given that he now admits to perjuring
himself at trial. “[R]ecanting affidavits and witnesses are viewed with extreme
suspicion by the courts.” United States v. Adi, 759 F.2d 404, 408 (5th Cir. 1985).
Thus, by holding an evidentiary hearing into “actual innocence,” we ensure that
Wilkerson does not receive a free pass through the Schlup v. Delo “gateway.”
While I agree with the majority on the importance of an evidentiary hearing,
I do not join its Sixth Amendment analysis. If the district court finds that
Wilkerson has failed to meet the “actually innocent” standard, then it will render
the Sixth Amendment problem moot. I believe the court should not prematurely
and unnecessarily address this very difficult issue.
The majority writes that the state violated Wilkerson’s right to confrontation
by limiting the cross-examination into Riley’s prison transfer. I question, but do
not decide, whether the state indeed violated Wilkerson’s Sixth Amendment right.
I bring up the following critique only to show that we should not try to resolve this
thorny (and potentially moot) issue at this point.
-18- First, it is not at all clear from the record if Riley’s letters to the prison
administration shed much light on his alleged bias.38 Wilkerson argues that Riley
had an incentive to fabricate testimony to curry favor with prison officials and
receive a transfer from a maximum to a medium security prison. A few facts put
a different gloss on Riley’s transfer request. The Louisiana Supreme Court has
emphasized that Riley, “fearing for his life [from Wilkerson], requested to be
moved.” Louisiana v. Wilkerson, 326 So.2d 353, 357 (La. 1976). As the district
attorney told the state trial judge in a colloquy, the state of Louisiana, as a safety
measure, usually transfers an inmate who will testify against a fellow inmate.
Furthermore, it is not obvious from the record if Riley requested to be transferred
only to medium security prisons. He might have requested a transfer to a different,
but similarly inhospitable, maximum security prison))just so that he could stay
away from Wilkerson.39
38 Riley’s letters are not in the record, so we must rely on the characterizations of them described in the trial transcript and the judicial opinions. 39 Wilkerson’s attorney noted in a sidebar conversation that Riley, in his letters, “asked in one place to be transferred to DeQuincy and in another place that he be transferred to Camp H just a medium security area.” It is unclear from the record if DeQuincy is a maximum or medium security prison, but the attorney’s contrast between DeQuincy and Camp H suggests that DeQuincy is a maximum security penitentiary. If that is the case, it undermines Wilkerson’s argument that Riley had an incentive to lie in hopes of being transferred to a medium security prison.
-19- Second, the trial court’s interest in preventing mistrial possibly outweighed
Wilkerson’s competing interest in cross-examining Riley about the letter. See
Davis, 415 U.S. at 1111 (recognizing that an important state interest can sometimes
trump the right to an unfettered cross-examination). The state trial judge limited
the cross-examination into Riley’s transfer because he worried that this line of
questioning would broach Wilkerson’s first trial, where Riley had also testified.
He warned Wilkerson’s attorney during a colloquy about the transfer: “[Y]ou are
bordering [] very close to a mistrial by asking him about the previous trial. The
man [Riley] was careful enough in his testimony not to disclose anything about it
but I want to caution you.” Apparently, the state trial judge feared that Wilkerson’s
attorney would elicit testimony about the previous trial, and lay the seeds of a
mistrial should Wilkerson be found guilty. The judge’s fear of a manufactured
mistrial may not have been misplaced: after his conviction, Wilkerson moved for
a mistrial because a prospective juror during voir dire had mentioned that he knew
this case was “back for retrial.”40 See Louisiana v. Wilkerson, 326 So.2d at 355
40 The majority argues that this fear of a mistrial was unwarranted because a prospective juror had already informed the jury of the prior trial. But the Louisiana Supreme Court dismissed the significance of the prospective juror’s statement, saying “it is extremely unlikely that the comment drew the attention” of the jurors. Louisiana v. Wilkerson, 326 So.2d at 355.
-20- (rejecting the motion for mistrial).
Third, despite limiting testimony regarding the prison transfer, the state court
nevertheless might have allowed constitutionally sufficient probing into Riley’s
potential bias. See United States v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996)
(holding that limits on cross-examination did not violate the Sixth Amendment
because the “jury was given adequate information to appraise the bias and motives
of the witness.”) The court allowed Wilkerson’s attorney, Leslie Ligon, to cross-
examine Riley about potential deals with the state. Ligon, for instance, asked Riley
whether he received anything in exchange for his testimony. Ligon also cross-
examined Riley about receiving preferential treatment:
Q: Were you charged with this murder?
A: No, sir.
Q: How many other people were charged with this murder?
A: Six or seven I guess, I’m not sure.
Q: Is it or is it not true that you were the only person that was out of his
cell that was not charged with this murder?
A: I wouldn’t know...
Q: But you were not charged?
-21- The court also allowed Ligon to attack other aspects of Riley’s credibility: he
pointed out that Ligon was a convicted armed robber, was dishonorably discharged
by the Marines, took medication for psychological problems, and visited a
psychiatrist at the penitentiary.
Finally, while res judicata does not attach to the denial of habeas relief, see
Schlup, 513 U.S. at 317, I note that a Fifth Circuit panel rejected Wilkerson’s prior
habeas petition, which raised this same Sixth Amendment claim. See Wilkerson v.
Whitley, 16 F.3d 64 (5th Cir. 1994). The Fifth Circuit en banc then affirmed the
panel’s decision. See Wilkerson v. Whitley, 28 F.3d 498 (5th Cir. 1994) (en banc
opinion).
-22-