Walbey, et al v. Dretke

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 29, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41114
GAYLON GEORGE WALBEY, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(3:99-CV-496)
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Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Gaylon 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, 926 S.W.2d 307, 308 (Tex. Crim. App. 1996). The conviction
and sentence were affirmed on direct appeal. Id. at 308-14. Walbey
sought relief by writ of habeas corpus in state court asserting,
among other things, that trial counsel was ineffective in failing
to investigate and present mitigation evidence and in failing to
prepare a psychologist, Dr. Wills, to testify.

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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 specific
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 expert,
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(unpublished).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 argued 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 matter
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

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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
that 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. Johnson, 210 F.3d 481, 484-85 (5th Cir.
2000). Walbey insists that the district court erred in denying
federal habeas relief because the opinion of the TCCA rejecting the
relief granted by the state habeas trial court and denying relief
on his claim of ineffective assistance of counsel was, in the light
of the factual findings made by the lower state court, an
unreasonable application of clearly established federal law under
Wiggins v. Smith, 123 S. Ct. 2527 (2003).
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 conclusion 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

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as found by the trial court but had held instead that relief was
not available under those facts. Craker, 756 F.2d at 1213-14. In
contrast, we held in Micheaux v. Collins, 944 F.2d 231, 232 (5th
Cir. 1991) (en banc), that the state habeas trial court’s factual
findings did not survive review by the TCCA, which had denied the
petitioner’s habeas petition without written order. See Micheaux
v. Collins, 911 F.2d 1083, 1085 (5th Cir. 1990). We reasoned:
Not only were the “proposed findings” not adopted
nor incorporated in the action of the Texas Court of
Criminal Appeals, they are directly inconsistent with
that court’s peremptory denial of relief. We conclude
that those proposed findings did not survive scrutiny by
the Texas Court of Criminal Appeals, the final
decisionmaker in Texas habeas cases.
Micheaux, 944 F.2d at 232; see also Singleton v. Johnson, 178 F.3d
381, 384-85 (5th Cir. 1999).
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 present 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, 756 F.2d at 1214.
There is nothing in the language of the TCCA’s order in this
case, however, that would support a similar conclusion. Here, the

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order of the TCCA is silent as to the state habeas trial court’s
findings of fact. The TCCA’s statement rejecting 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 the 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, 944 F.2d at 232.
In addition, the facts found by the state habeas trial court in
this case are directly inconsistent with the TCCA’s denial of
habeas relief. Id. We agree with Walbey that it would be an
unreasonable application of federal law to deny relief under
Wiggins in the light of the state habeas trial court’s findings
that Walbey’s trial counsel had failed to investigate the
mitigation defense and that, if presented, the amount of mitigation
evidence available would have influenced the verdict of the jury.
See Wiggins, 123 S. Ct. at 2536-44. Nevertheless, as the TCCA did
not adopt the factual findings of the habeas trial court, and as
those factual findings are directly inconsistent with the TCCA’s
denial of relief, this case is legally indistinguishable
from Micheaux and Singleton. Accordingly, we conclude that the
state habeas trial court’s factual findings did not survive
appellate review, so that the district court did not err when it

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failed to defer to those findings in denying habeas relief to
Walbey.
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 habeas 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 factual 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
defense 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 conclusion,
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

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necessarily resolved all factual issues against the petitioner.
Goodwin v. Johnson, 132 F.3d 162, 182, 184 n.17 (5th Cir. 1998).
As the state habeas trial court’s proposed factual findings
did not survive appellate review, and as the opinion of the TCCA
did not resolve the factual dispute regarding trial counsel’s
credibility and his investigation of the mitigation defense, we
must remand to the district court for it to conduct a de novo
evidentiary hearing into Walbey’s claims that counsel was
ineffective for those asserted failures at the punishment phase of
his trial. See Singleton, 178 F.3d at 385. Accordingly, the
judgement of the district court denying Walbey’s habeas application
under § 2254 is vacated, and the case is remanded to that court
with instructions to conduct a de novo evidentiary hearing
consistent with this opinion.
VACATED and REMANDED with instructions.

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