Orman v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-30739
_______________
CHIENO ORMAN,
Petitioner-Appellee,
VERSUS
BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
October 11, 2000
Before SMITH and DENNIS, Circuit
Judges, and HARMON,* District Judge.
JERRY E. SMITH, Circuit Judge:
Chieno Orman was granted a writ of habeas
corpus regarding his conviction of second-de-
gree murder and resulting life sentence without
possibility of parole. The district court held
that the state had breached its duty under Bra-
dy v. Maryland, 373 U.S. 83, 87 (1963), to
disclose exculpatory evidence and that Or-
man’s guilty plea violated Alford v. North Car-
olina, 400 U.S. 25, 38 & n.10 (1970), and
FED. R. CRIM. P. 11(f), which require courts to
ensure that there is a factual basis for entering
a conviction whenever a guilty plea is accom-
panied by a claim of innocence.
On appeal, the state argues that Orman was
* District Judge of the Southern District of
Texas, sitting by designation.

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barred from seeking habeas relief because he
failed to exhaust his state remedies and that
the plea violated neither Brady nor Alford.
We conclude that, although Orman satisfied
the exhaustion requirement, the plea was val-
idly entered.
First, we reiterate our ruling in Matthew v.
Johnson, 201 F.3d 353, 361-62 (5th Cir.
2000), petition for cert. filed (Apr. 25, 2000)
(No. 99-9224), that Brady requires a prosecu-
tor to disclose exculpatory evidence for pur-
poses of ensuring a fair trial, a concern that is
absent when a defendant waives trial and
pleads guilty. Because the Supreme Court has
yet to extend Brady to guilty pleas (let alone
extend it retroactively), the district court erred
in requiring the Louisiana courts to do so.
Second, the Louisiana Supreme Court did
not act unreasonably when it found that Orman
never proclaimed his innocence and therefore
that no factual basis for the plea was necessary
under Alford. We therefore reverse and re-
mand for any necessary further proceedings re-
specting Orman’s other grounds for habeas re-
lief yet to be addressed by the district court.
I.
A.
On the evening of the alleged murder, Or-
man, his close friend, William Reynolds, and
Reynolds’ girlfriend, Dee Dee Davis, went out
drinking. Orman also ingested LSD.
According to two statements made by Da-
vis, the three subsequently journeyed to the
residence of Orman’s grandfather, Pete McIn-
tyre. Leaving Reynolds passed out in Orman’s
truck, Orman and Davis entered the residence
to get the keys to McIntyre’s truck, confirmed
that the truck would start, and returned to the
residence.
Orman went back outside, and, shortly
thereafter, Davis claims, she heard a gunshot.
Orman then returned to the residence and told
her he had shot Reynolds. Davis did not see
the incident.
On his return to the residence, Orman
grabbed Davis by the neck, held the gun beside
her head, and discharged it but did not hit her.
He then made Davis take her clothes off. Af-
ter attempting to rape her, he ordered her to
dress and get into his truck so he could take
her home.
According to Davis, Reynolds, whose body
had remained in Orman’s truck, was still alive
at that time, although he had been shot in the
left temple and blood dripped from the wound.
When Orman slowed down for a hole in the
road, Davis jumped out of the truck and ran
into the woods. Investigators found footprints
going into the woods at the place Davis had
identified as her escape point.
Following her escape from Orman, Davis
walked to a nearby residence and told the oc-
cupants what had happened. The residents no-
tified the sheriff’s department.
Near a bridge that was, according to Davis,
in the direction Orman had been traveling at
the time of her escape, investigators later
found a black baseball cap, bodily fluids, vom-
it, and Reynolds’s body. Similar fluids and
vomit were fo und in Orman’s truck. An au-
topsy showed that Reynolds had died of a
single gunshot wound to the left temple.
According to an investigator, Orman then
returned to the McIntyre residence, got his
grandfather’s truck, and picked up his girl-
friend, Tina Wood. According to her state-
ment, Orman told her that he had shot Rey-
nolds and t hat he planned to turn himself in.

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Before he had the chance to do so, he was
apprehended.
In his petition for habeas relief, Orman al-
leges, inter alia, that the state failed to dis-
close exculpatory evidence. Specifically, he
contends that the state disclosed to his counsel
only that there was a possible conflict between
two of Davis’s statements. The state court
conducted an in camera review of the state-
ments and provided Orman’s counsel with re-
dacted copies. Orman claims, however, that
the state failed to disclose a statement by Todd
DeMars, a teacher at the high school Davis
attended.
According to that statement, Davis had
seemed depressed four days prior to the mur-
der. When DeMars asked what was wrong,
she said she was about to be kicked out of her
house. When he asked if there was anything
he could do, she replied, “Can you kill my boy-
friend?”
Witnesses besides Davis maintained that, on
the evening in question, Orman was heavily
intoxicated with alcohol, acid, or both. More-
over, during his jailhouse interview, Orman
stated that he could not remember shooting
Reynolds but did advise officers that there was
a gun under the seat of his truck, which the
officers subsequently recovered.
B.
Orman pleaded guilty to second-degree
murder. He did not directly appeal.
Nearly three years later, he sought habeas
relief in state court. After the trial court de-
nied relief, an intermediate appellate court re-
manded to give the state the opportunity to es-
tablish a significant factual basis for Orman’s
guilty plea. On remand, the state offered a
transcript of the preliminary examination, a co-
py of the police report, a copy of the patholo-
gist’s report, and a death certificate. The trial
court found a significant factual basis for the
plea and thereby affirmed the conviction.
On appeal a second time, the intermediate
appellate court again set aside the guilty plea
for lack of a factual basis. Finally, the state su-
preme court reversed and reinstated Orman’s
conviction.
In 1998, Orman filed the instant federal
habeas petition. On the magistrate’s recom-
mendation, the district court held, first, that
the state had failed to disclose exculpatory ev-
idence in violation of Brady, and second, that
a factual basis to support the plea was required
under Alford and that such a basis was lacking.
The court granted conditional habeas relief for
sixty days to give the state the opportunity to
rearraign Orman, and stayed its order pending
this appeal.
II.
A habeas petitioner has the burden to prove
that he is entitled to relief.1 In addition, Or-
man’s petition for federal habeas relief is gov-
erned by 28 U.S.C. § 2254(d) as amended by
the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”),2 under which federal
1 See Williams v. Taylor, 120 S. Ct. 1495,
1518 (2000); Engle v. Isaac, 456 U.S. 107, 134-35
(1982).
2 That provision reads as follows:
An application for a writ of habeas cor-
pus on behalf of a person in custody pursu-
ant to the judgment of a State court shall not
be granted with respect to any claim that
was adjudicated on the merits in State court
proceedings unless the adjudication of the
(continued...)

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courts may grant the writ on a finding of mere
error by a state court, but only if a state court
“arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question
of law or if the state court decides a case dif-
ferently than [the Supreme Court] has on a set
of materially indistinguishable facts.” Wil-
liams, 120 S. Ct. at 1523.
Barring that, the writ is available only if the
state court “unreasonably applies [clearly es-
tablished federal law, as determined by the Su-
preme Court] to the facts of the prisoner’s
case,” id., or makes “an unreasonable determi-
nation of the facts in light of the evidence pre-
sented in the State court proceeding.”3 It
follows from this that mere disagreement with
the state court is not enough. The standard is
one of objective reasonableness.4
In addition, absent special circumstances, a
federal habeas petitioner must exhaust his state
remedies by pressing his claims in state court
before he may seek federal habeas relief.5 Or-
man did not directly appeal the entry of his
guilty plea and resulting conviction. He did,
however, pursue a claim for state habeas relief
before filing this federal habeas suit. Federal
habeas relief requires no more.6 Orman there-
2(...continued)
claimSS
(1) resulted in a decision that was con-
trary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was
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).
3 28 U.S.C. § 2254(d)(2). See also 28 U.S.C.
§ 2254(e)(1) (“In a proceeding instituted by an
application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a
State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.”).
4 The Supreme Court recently rejected the use
of the “all reasonable jurists” standard adopted in
some circuits, including this court. See Williams,
120 S. Ct. at 1521-22 (“Stated simply, a federal
habeas court making the ‘unreasonable application’
inquiry should ask whether the state court’s appli-
cation of clearly established federal law was objec-
tively unreasonable. The federal habeas court
should not transform the inquiry into a subjective
one by resting its determination instead on the sim-
ple fact that at least one of the Nation’s jurists has
applied the relevant federal law in the same manner
the state court did in the habeas petitioner’s case.
The ‘all reasonable jurists’ standard would tend to
mislead federal habeas corpus courts by focusing
their attention on a subjective inquiry rather than
on an objective one.”).
5 See 28 U.S.C. § 2254(b)(1) (“An application
for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the
applicant has exhausted the remedies available in
the courts of the State”).
6 See Carter v. Estelle, 677 F.2d 427, 443 (5th
Cir. 1982) (“The basic compromise which under-
lies all of exhaustion doctrine requires that the state
courts be given the first opportunity to pass upon
the petitioner’s federal claims. Exhaustion normal-
ly requires only that the federal claim have been
fairly presented to the highest court of the State,
(continued...)

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fore was entitled to bring this petition for ha-
beas relief.
III.
Orman claims that the state failed to dis-
close two pieces of exculpatory evidence to
the defense in violation of his constitutional
right to due process.7 The duty articulated in
Brady, however, was expressly premised on a
defendant’s right to a fair trial, a concern that
does not animate the case sub judice.8
We do not review Orman’s Brady claim de
novo but, instead, examine the case under the
deferential lens required by AEDPA. As we
have said, AEDPA requires deference unless
the state court ruling is contrary to clearly es-
tablished federal law as determined by the Su-
preme Court. But “[t]he Supreme Court has
not as yet ruled on whether a prosecutor’s fail-
ure to disclose material exculpatory informa-
tion prior to entry of a guilty plea violates the
U.S. Constitution.” Matthew, 201 F.3d at
360. Furthermore, any new constitutional rule
announced by the Supreme Court would not
apply retroactively unless the new rule satisfied
the requirements of Teague v. Lane, 489 U.S.
288 (1989).9
As we recently held in Matthew, which was
issued after the district court granted habeas
relief in the instant case,
[t]he Brady rule’s focus on protecting
the integrity of trials suggests that where
no trial is to occur, there may be no con-
stitutional violation. . . . Because a
Brady violation is defined in terms of the
potential effects of undisclosed informa-
tion on a judge’s or jury’s assessment of
guilt, it follows that the failure of a pro-
secutor to disclose exculpatory informa-
tion to an individual waiving his right to
trial is not a constitutional violation.
Matthew, 201 F.3d at 361-62.
There being no reason in 1993, when Or-
man pleaded guilty, that “a state court would
have felt compelled to decide that a prosecu-
tor’s failure to disclose exculpatory informa-
tion before entry of a guilty or nolo conten-
dere plea was a Brady violation, or otherwise
a violation of the Due Process Clause,” id. at
364, the state’s failure to disclose exculpatory
materials before Orman’s guilty plea could not
constitute grounds for the district court to
grant habeas relief here. After all, in the ab-
sence of contrary, clearly established federal
law as determined by the Supreme Court, it
was patently reasonable for the Louisiana
6(...continued)
either on direct review of the conviction or in a
post-conviction attack.”) (citations and quotations
omitted).
7 See Brady, 373 U.S. at 87 (stating that “the
suppression by the prosecution of evidence favor-
able to an accused upon request violates due pro-
cess where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad
faith of the prosecution”).
8 See Matthew, 201 F.3d at 360 (“The prosecu-
tor’s duty to disclose material exculpatory informa-
tion is based in the Due Process Clause of the
Fourteenth Amendment, and exists to ensure that
the accused receives a fair trial, i.e., that an impar-
tial party’s assessment of the defendant’s guilt is
based on all the available evidence.”).
9 See Teague, 489 U.S. at 310 (“Unless they
fall within an exception to the general rule, new
constitutional rules of criminal procedure will not
be applicable to those cases which have become
final before the new rules are announced.”).

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courts to decide not to extend Brady to guilty
pleas. Therefore, Orman’s Brady objections
are insufficient as a matter of law to warrant
habeas relief.
IV.
A plea of guilty is consistent with due pro-
cess only if entered into knowingly, volun-
tarily, and intelligently. Where the defendant
proclaims his innocence but pleas guilty any-
way, due process is satisfied only if the state
can demonstrate a “factual basis for the plea.”
Alford, 400 U.S. 25, 38 & n.10 (1970).10
On habeas review, the district court found
Orman’s plea wanting under Alford. The state
claims error, arguing that Orman did not pro-
claim his innocence before the trial court and
that, in any case, an adequate factual basis for
the plea was provided on remand from the
intermediate Louisiana appellate court.
In light of the fact that this issue was fully
litigated in the state courts, the federal district
court was authorized to grant federal habeas
relief under AEDPA only if it was objectively
unreasonable for the state courts to have de-
nied Orman his requested relief. Because,
however, it was reasonable for the Louisiana
courts to conclude that Orman had failed to
proclaim his innocence in state court, we
reverse.
At the plea hearing, the following exchange
took place:
THE COURT: Are you pleading guilty
because you actually did the things
charged?
COUNSEL FOR ORMAN: Your Hon-
or, uh, for the record we’re entering this
plea under North Carolina v. Alford.
It’s an Alford plea. We are entering that
type plea because number one, the de-
fendant still has amnesia about certain
aspects of the homicide he’s pleading
guilty to. Number two, because the evi-
dence against him is great, and thirdly,
because of the possibility of the death
sentence or two life sentences plus 40
years being imposed if he is convicted
on all charges.
Under Alford, “when a defendant pleads
guilty while proclaiming his innocence, the
court commits constitutional error by accept-
ing the plea without ascertaining that there is
a factual basis for it.” Banks v. McGougan,
717 F.2d 186, 188 (5th Cir. 1983). But, “ab-
sent statements inconsistent with guilt, state
courts are not constitutionally required to es-
tablish a factual basis for the plea of guilt.” Id.
Furthermore, it is not incumbent upon the
sentencing court to ascertain whether the de-
fendant believes in his innocence. Instead, it is
the defendant’s duty to assert innocence and
thereby bring to the court’s attention the need
to ensure a factual basis for the guilty plea not-
withstanding his claim of innocence. “[T]he
due process clause imposes no constitutional
duty on state trial judges to ascertain a factual
basis prior to accepting a guilty plea unless . . .
the state judge is put on notice that there may
be some need for such an inquiry (as, for ex-
ample, when the accused asserts his inno- 10 See also FED. R. CRIM. P. 11(f) (“Notwith-
standing the acceptance of a plea of guilty, the
court should not enter a judgment upon such plea
without making such inquiry as shall satisfy it that
there is a factual basis for the plea.”).

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cence).” Id.11
Orman never claimed innocence. To be
sure, the fact that counsel claimed that Orman
suffered from amnesia indicates that Orman
was not admitting guilt. But inability to admit
guilt is a far cry from an assertion of inno-
cence. A claim of amnesia, unlike a claim of
innocence, is patently not a “statement[] incon-
sistent with guilt.” Banks, 717 F.2d at 188.
Counsel did specifically refer to the plea as
an “Alford plea.” One plausible inference from
that reference is that Orman intended to pro-
claim his innocence. That inference is not re-
quired, however. Indeed, the citation to Al-
ford is tempered by the fact that counsel also
explicitly conceded that “the evidence against
him is great.”
In sum, it was not unreasonable for the
Louisiana Supreme Court to reject Orman’s al-
legation that he proclaimed his innocence
when he pleaded guilty. The district court
therefore erred in granting habeas relief pursu-
ant to Alford.
REVERSED and REMANDED.
11 See also Smith v. McCotter, 786 F.2d 697,
702 (5th Cir. 1986) (“State courts are under no
constitutional duty to establish a factual basis for
the guilty plea prior to its acceptance, unless the
judge has specific notice that such an inquiry is
needed.”).

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