Clarke v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m. 99-40780
_______________
MATTHEW THOMAS CLARKE,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
(4:97-CV-231)
_________________________
October 4, 2000
Before JOLLY, JONES, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Matthew Clarke appeals the denial of a pe-
tition for writ of habeas corpus. Finding no
error, we affirm.
I.
Clarke was twice convicted of sexual as-
sault. See Clarke v. State, 813 S.W.2d 654
(Tex. App.SSFort Worth 1991), aff’d, 839
S.W.2d 92 (Tex. Crim. App. 1992), cert. de-
nied, 507 U.S. 996 (1993). In two state
habeas petitions stemming from those
convictions, he alleges that his first counsel,
Robert Scofield (who did not ultimately
represent him at trial), failed to inform him of
* Pursuant to 5TH CIR. 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determined that this opinion should not be
published and is not precedent except under the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 5TH CIR. R.
47.5.4.

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a plea bargain offer, which he would have
accepted. Clarke introduced a disciplinary
petition from the State Bar of Texas finding
Scofield guilty of numerous violations in five
different cases, including Clarke’s. Scofield
was disbarred, and the judgment reflected that
he was guilty of each allegation contained in
the disciplinary petition, even though the
particular violation in Clarke’s case was not
specifically addressed.
The state habeas court, after reviewing the
first application and considering affidavits from
Clark’s mother and aunt and from the
prosecutors, concluded that no plea offer was
made and denied Clarke’s application based on
these findings. The state habeas court re-
viewing the second petition did not address
this issue. The Texas Court of Criminal Ap-
peals denied both petitions without written
order.
Clarke sought relief in federal district court
under 28 U.S.C. § 2254. That court denied
relief on the basis of the recommendation of
the magistrate judge, who reasoned as follows:
[T]he state court found that no offer had
ever been made based upon the
affidavits of the prosecutor[s] involved.
Petitioner has no direct evidence that a
plea offer was ever made. The closest
petitioner comes is a purported letter
from an attorney who was not trial
counsel that states a plea may be
possible although no firm offer has been
made. This claim is properly denied on
the findings of the trial court.
Findings of the state habeas court are gen-
erally entitled to a presumption of correctness.
The district court determined that the plea bar-
gain issue might ordinarily require an
evidentiary hearing if there were no findings to
which that presumption could attach, but here,
the finding, by one of the state habeas courts,
that no plea offer was made suffices to invoke
the presumption of correctness. The district
court granted a COA on whether a plea offer
was made that Clarke’s attorney did not
convey to him.
II.
We consider three issues on appeal:
(1) whether the doctrine of collateral estoppel
barred the state habeas court from conducting
the evidentiary hearing; (2) whether a federal
court should apply a deferential standard of
review to a state court’s factfinding in a state
habeas court proceeding that challenges a con-
viction different from the conviction
challenged in the federal proceeding; and
(3) whether, if the state findings are entitled to
a presumption of correctness, the defendant
may appeal those findings, even though they
were already appealed in the first proceeding.
Because an ineffectiveness of counsel claim is
a mixed question of fact and law, we review
the federal district court’s decision de novo,
but findings of fact meeting the statutory cri-
teria are entitled to a presumption of
correctness. See Crane v. Johnson, 178 F.3d
309 (5th Cir.), cert. denied, 120 S. Ct. 369
(1999).
III.
Clarke argues that the federal district court
erred in considering the findings of the Court
of Criminal Appeals, because the decision of
the trial court that disbarred Scofield
collaterally estopped the court from revisiting
the issue of whether the state had offered a
plea bargain. Because the decision to apply
collateral estoppel is an issue of law, we
review it de novo. “Collateral estoppel
provides that ‘when an issue of ultimate fact
has once been determined by a valid and final

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judgment, the issue cannot again be litigated
between the same parties in any future
lawsuit.’” Neal v. Cain, 141 F.3d 207, 210
(5th Cir. 1998) (quoting Ashe v. Swenson, 397
U.S. 436, 443 (1970)).
We apply the Texas law of issue preclusion
so that we properly may give the state court
judgment the full faith and credit to which it is
entitled by statute. See Gober v. Terra +
Corp., 100 F.3d 1195, 1201 (5th Cir. 1996).
Under Texas law, to assert collateral estoppel
a party must establish that “(1) the facts
sought to be litigated in the second action
were fully and fairly litigated in the first action;
(2) those facts were essential to the judgment
in the first action; and (3) the parties were cast
as adversaries in the first action” or “the party
against whom the doctrine is asserted was a
party or in privity with a party in the first
action.” Sysco Food Servs., Inc. v. Trapnell,
890 S.W.2d 796, 801 (Tex. 1994).
Clarke correctly states that a finding of fact
in an administrative or civil proceeding may be
used collaterally to estop relitigation of that
fact in a criminal proceeding. See State v.
Aguilar, 947 S.W.2d 257, 259 (Tex. Crim.
App. 1997).1 Clarke, however, has failed to
demonstrate that the trial court’s disbarment
proceedings meet the above criteria. Thus, the
federal habeas court did not err in revisiting
this issue.
First, the issue must be fully and fairly lit-
igated. As a matter of Texas law, if the court
“enters a default judgment after conducting a
hearing or trial at which the plaintiff meets his
evidentiary burden,” an issue is considered ful-
ly and fairly litigated. Pancake v. Reliance
Ins. Co. (In re Pancake), 106 F.3d 1242, 1244
(5th Cir. 1997) (citing In re Garner, 56 F.3d
677 (5th Cir. 1997), overruled on other
grounds, Kawaauhau v. Geiger, 523 U.S. 57,
61-62 (1998)). In Pancake, the court found
that the presentation of “the evidence and ar-
guments of counsel” was not enough to prove
that the issue in question had been fully and
fairly presented. Id.
Unlike the situation in Garner, where the
defendant answered the complaint, then
disappeared during a trial in which the plaintiff
carried his burden of proof, the record in
Pancake did not conclusively indicate that a
hearing had been conducted on a summary
judgment motion, despite the statement in the
final judgment that the court had “heard” the
arguments. See Pancake, 106 F.3d at 1244.
The disbarment court similarly stated that it
had “heard the arguments on behalf of each
party” but that “[r]espondent had filed no
response to the Motion for Summary
Judgment.” Thus, the question of whether the
issue was fully and fairly litigated is somewhat
ambiguous.
We need not reach this issue, however,
because the allegation that Scofield failed to
convey a plea offer to Clarke was not
necessary to the judgment. The disbarment
court found Scofield guilty of ethical violations
in five different cases, including Clarke’s, but
that court did not specifically discuss the issue
of Clarke’s plea offer. Consequently, the al-
1 Aguilar presents a slightly different test for a
fact finding in an administrative proceeding to be
used collaterally to estop the relitigation of an issue
in a criminal proceeding. Aguilar holds that (1) the
fact must be fully and fairly litigated; (2) the fact
issue must be the same; and (3) the fact finder must
act in a judicial capacity. Aguilar, 947 S.W.2d at
259. Here, the state bar proceeding might be
arguably administrative, but the fact that a trial
court actually decided the issue makes the Sysco
test the appropriate one.

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legations in the other four cases could have de-
termined the outcome.
Finally, the parties in the two actions are
neither the same nor in privity. The state bar
association in the disbarment suit and the di-
rector of the prison system in Clarke’s habeas
petition both represent the state, but the state
is not a monolith. See, e.g., Public Util.
Comm’n v. Cofer, 754 S.W.2d 121, 125 (Tex.
1988). Thus, the state bar and the prison sys-
tem are not the same party merely because
both are state agencies.
In addition, the parties are not in privity.
“[P]rivity is not established by the mere fact
that persons may happen to be interested in the
same question or in proving the same set of
facts.” Benson v. Wanda Petroleum, 468
S.W.2d 361, 363 (Tex. 1971). For privity to
exist, one party must “derive its claims through
a party to the other action.” State Farm Fire
& Cas. Co. v. Fullerton, 118 F.3d 374, 377
(5th Cir. 1997). Here, the prison derived none
of its claims or defenses through the state bar
association. Therefore, the factual findings in
the disbarment proceedings against Scofield
did not collaterally estop the state court from
revisiting the existence of a plea offer when it
reviewed Clarke’s habeas petitions.
IV.
The Antiterrorism and Effective Death Pen-
alty Act (“AEDPA”) prevents a prisoner from
obtaining relief with respect to any claim ad-
judicated on the merits in state court unless the
claim (1) resulted in a decision contrary to
clearly established federal law, as determined
by the Supreme Court, or (2) resulted in a de-
cision based on an unreasonable determination
of the facts in light of the evidence presented
in the State court proceeding. 28 U.S.C.
§ 2254(d). A “determination of a factual issue
made by a State court shall be presumed to be
correct,” and “[t]he applicant shall have the
burden of rebutting the presumption of
correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
Clarke contends that the district court erred
in granting the presumption of correctness to
state court factfindings made in a separate
habeas petition. He claims that this reliance
eviscerates the statutorily required check on
the reasonableness of the state court’s
findings.
For the deferential review to apply, the
state court must adjudicate the petitioner’s
claims on the merits, which means that the
court must dispose of the case on substantive
rather than procedural grounds. See Miller v.
Johnson, 200 F.3d 274, 281 (5th Cir. 2000),
cert. denied, 2000 U.S. LEXIS 5513 (Oct. 2,
2000) (No. 99-9891); Nobles v. Johnson, 127
F.3d 409, 416 (5th Cir. 1997). The state court
record on the habeas petition in which the
court conducted an evidentiary hearing was
adjudicated on the merits, but the second ha-
beas court proceeding apparently used the re-
sults of the first proceeding as a basis for de-
nying the writ. The magistrate judge who rec-
ommended that this second petition be denied
made specific reference to the factual finding
that the state had never offered Clarke a plea
bargain, thus incorporating the findings of the
first proceeding to the second by reference.
The state court almost certainly applied the
findings from one proceeding to resolve the
other, because the court’s reference
demonstrated that it knew of the other petition
and proceeding, and the Court of Criminal
Appeals denied both habeas petitions on the
same day, in orders signed by the same judge.
The district court concluded that the statutory

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deference to state court factual findings
applied to both petitions. We agree.
In the interest of judicial efficiency, courts
often consolidate hearings on successive pe-
titions and encourage prisoners to consolidate
their issues into a single petition. See, e.g.,
Montgomery v. Meloy, 90 F.3d 1200 (7th Cir.
1996); Gilmore v. Armontrout, 861 F.2d 1061
(8th Cir. 1989). By allowing the same state
habeas court factfinding to support the denial
of two habeas petitions based on the same
factual issue, the federal district court
essentially treated the two petitions as though
they had been consolidated. If the trier of fact
properly conducted the hearing, an additional
hearing with the same facts and witnesses to
review the issue for the second petition will
neither yield new information nor change the
result. Cf. Wong Doo v. United States, 265
U.S. 239 (1924).
This situation is distinct from the general
bar against res judicata in the habeas context.
Even though res judicata cannot prevent an
issue from being raised on habeas even when
a previous habeas petition decided the issue,
see, e.g., McClesky v. Zant, 499 U.S. 467,
479 (1991); Salinger v. Loisel, 265 U.S. 224,
230-31 (1924), the policy behind that rule
does not apply here. The traditional bar
against res judicata developed so that the
determination of an issue at trial would not
preclude the prisoner from challenging that
issue on habeas. As this doctrine developed,
the Court also affirmed that res judicata and
collateral estoppel should not be used to limit
the number of times a prisoner might attempt
to obtain habeas relief. See Hardwick v.
Doolittle, 558 F.2d 292, 295 (5th Cir. 1977).
Here, allowing the habeas court to consolidate
two simultaneous petitions neither prevents
Clarke from raising an issue nor affects the
number of times he can raise it.
Moreover, habeas courts “need give no
more than summary consideration to repetitive
petitions.” Id. (citing Salinger, 265 U.S. at
231-32). Although the petition in question is
not technically repetitive (because it challenges
incarceration from a different conviction), the
factual issue providing the basis for the
petition is not only repetitive but identical.
Thus, a consolidation of the evidentiary
process for both is consistent with this rule.
Perhaps a more explicit consolidation would
have aided the reviewing court in
understanding the record, but the district court
did not err in ruling in essence that the habeas
court could consolidate the two petitions in
the interest of efficiency.
V.
Clarke claims that even if the district court
may attach a presumption of correctness to the
findings made in a state habeas proceeding in
conjunction with another habeas petition, it
was inappropriate to do so here, because the
state habeas court did not hold a live hearing
on the issue or otherwise give him an
opportunity to present his case. Thus, he
argues, these findings are not entitled to a
presumption of correctness under §
2254(e)(1).2 “When there is a factual dispute,
that, if resolved in the petitioner’s favor,
would entitle him to relief and the state has not
afforded a full and fair evidentiary hearing, a
federal habeas corpus petitioner is entitled to
discovery and an evidentiary hearing.” Perillo
2 Clarke also challenges the factual accuracy of
the findings, but credibility choices made by state
trial courts may not be reweighed by the federal
court. See Marshall v. Lonberger, 459 U.S. 422
(1983).

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v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996)
(internal citations omitted). But, “[a] full and
fair hearing does not necessarily mean a live
hearing. In the proper circumstances, we have
afforded the presumption of correctness to
‘paper hearings.’” Id. at 446.
In the paper hearing, the state court
reviewed affidavits of Clarke’s mother and
aunt and of the prosecutors. For a paper
hearing to be sufficient, the petitioner must be
afforded a full opportunity to present the
relevant facts. See Brown v. Johnson, 224
F.3d ___, 2000 U.S. App. LEXIS 21073,
at *21 (5th Cir. 2000). Clarke contends he
had no opportunity to rebut the prosecution’s
affidavits that the state had never made a plea
offer.
Consistently, however, we have upheld the
validity of paper hearings and have granted
them the presumption of correctness. See
Sawyers v. Collins, 986 F.2d 1493, 1504
& n.19 (5th Cir. 1993); Baldree v. Johnson,
99 F.3d 659, 663 (5th Cir. 1996). These hear-
ings must give the petitioner an opportunity to
present his side, but the court need not hear a
rebuttal per se if the facts are adequately de-
veloped in the record and affidavits. See Car-
ter v. Johnson, 131 F.3d 452, 460 (5th Cir.
1997); see also Hill v. Johnson, 210 F.3d 481,
489 (5th Cir. 2000), petition for cert. filed
(Aug. 28, 2000) (No. 00-5947). Thus, the dis-
trict court did not err in giving the fact findings
of the state habeas court the presumption of
correctness under § 2254(d).
AFFIRMED.

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