Smith v. MS Dept of Corr

* 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this opinion should not be published and is not precedent except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
November 10, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60618
Summary Calendar
JESSIE CLIFTON SMITH,
Petitioner-Appellant,
versus
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-1539-WSU
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court previously granted Jessie Clifton Smith,
Mississippi prisoner # 08031, a certificate of appealability on
the issues whether the district court abused its discretion by
failing to hold an evidentiary hearing to resolve conflicting
affidavits concerning Smith’s claims that (1) he was deprived of
his right to an impartial jury and (2) counsel was ineffective
for failing to strike jurors Monzella Tickles, La Shunda Bonds,
and Shirley Wells.

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No. 04-60618
-2-
Prior to the enactment of the AEDPA, this court held that
while a habeas petition may be decided on the basis of affidavit
testimony, “contested facts ordinarily may not be decided on
affidavits alone unless there is other evidence in the record
supporting them.” Jordan v. Estelle, 594 F.2d 144, 144-45 (5th
Cir. 1979) (internal citations omitted). Jordan held that where
there is nothing in the record to support the affidavit
testimony, it is error to deny habeas relief without an
evidentiary hearing where the petitioner’s allegations, if true,
would entitle him to habeas relief. See id. at 146. Moreover, a
petitioner who presents a facially adequate claim of ineffective
assistance of counsel is entitled to some form of evidentiary
hearing in order to fully and fairly adjudicate his claims. See
Brown v. Johnson, 224 F.3d 461, 466-67 (5th Cir. 2000).
However, this court recognized in McDonald v. Johnson, 139
F.3d 1056, 1060 (5th Cir. 2000), that although a petitioner may
not be precluded from obtaining a federal evidentiary hearing to
resolve conflicting affidavit testimony, he is not necessarily
entitled to one. This court held that if a district court has
sufficient facts before it to make an informed decision such that
an evidentiary hearing would not further develop material facts
relevant to the constitutional claim, a petitioner is not
entitled to a hearing. See id.
In the instant case, there is an absence of evidentiary
support for either Smith’s or counsel’s affidavit testimony.

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No. 04-60618
-3-
Given the absence of any indication that the district court’s
credibility determination was supported by evidence in the record
either corroborating counsel’s affidavit testimony or refuting
Smith’s, the district court improperly relied on the conflicting
affidavit testimony alone to resolve the constitutional issues .
See Jordan, 594 F.2d at 144-45.
Based on the foregoing, we VACATE the district court’s
dismissal and REMAND the case for further findings of fact
relevant to (1) whether Smith was deprived of his right to an
impartial jury and (2) whether counsel was ineffective for
failing to strike jurors Tickles, Bonds, and Wells.
VACATED AND REMANDED.

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