     Case: 09-30961     Document: 00511198155          Page: 1    Date Filed: 08/09/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 9, 2010
                                     No. 09-30961
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

FREDDIE LEE TAYLOR,

                                                   Petitioner-Appellant

v.

TIMOTHY WILKINSON, WARDEN, WINN CORRECTIONAL CENTER,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 1:08-CV-1913


Before KING, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Freddie Lee Taylor, Louisiana state prisoner # 100971, requests a
certificate of appealability (“COA”) to appeal the dismissal of his 28 U.S.C.
§ 2254 application, challenging his conviction for attempted manslaughter and
possession of a firearm by a convicted felon.             Taylor alleged in his § 2254
application that (1) an erroneous reasonable doubt jury instruction deprived him
of a fair trial, (2) the erroneous admission of other crimes evidence deprived him
of a fair trial, (3) the state withheld exculpatory evidence in violation of Brady

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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v. Maryland, 373 U.S. 83 (1963), (4) an involuntary statement by a witness was
admitted into evidence at trial, and (5) his counsel rendered ineffective
assistance.
      The district court dismissed Taylor’s § 2254 application after determining
that Taylor failed to exhaust state court remedies, specifically determining that
the evidence before the court revealed that none of Taylor’s habeas claims were
presented in Taylor’s initial state post-conviction application filed in the Eighth
Judicial District Court. The district court also concluded, having examined
Taylor’s petition to the Louisiana Supreme Court, that even if Taylor properly
presented his claims on state habeas, all except the Brady claim were waived
because only the Brady claim involved federal law. The district court, in the
alternative, also denied the Brady claim on the merits.
      In addition to his COA application, Taylor has filed in this court a request
for expansion of the record, seeking to supplement the record with a copy of his
state post-conviction application filed in the Eighth Judicial District Court in
July 2005. Taylor’s motion to supplement the record is GRANTED.
      A COA will be granted if the applicant makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
the applicant must demonstrate “that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the district court’s denial of federal
habeas relief is based on procedural grounds without analysis of the underlying
constitutional claims, “a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.” Id.
      The district court, in dismissing Taylor’s § 2254 application for failure to
exhaust state remedies, did not have before it a copy of the complete state court
record and specifically did not have a copy of Taylor’s July 2005 state application

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for post-conviction relief, which Taylor has provided to this court. A review of
the claims raised in Taylor’s state post-conviction application reveals that the
issue whether Taylor exhausted state court remedies merits further
investigation. Although the district court’s conclusion that only the Brady claim
was based on federal law may ultimately resolve the case, see Yohey v. Collins,
985 F.2d 222, 226 (5th Cir. 1993), the district court needs to determine whether
that conclusion is still valid in light of the expanded record. Taylor has shown
that reasonable jurists would debate the district court’s determination, made
without the benefit of a complete state court record, that Taylor had failed to
exhaust his § 2254 claims in state court. See Slack, 529 U.S. at 484.
      In order for a COA to issue, Taylor must show not only that reasonable
jurists could debate whether the district court was correct in its procedural
ruling, but also that reasonable jurists could find it debatable that the petition
states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c);
Slack, 529 at 484. The district court declined to address the merits of all but
Taylor’s Brady claim, which it denied on the merits in the alternative. Thus, we
are faced with a situation in which we are to evaluate whether Taylor’s petition
states a valid claim of the denial of a constitutional right when the district court
reached the merits of only one of several claims.
      As we explained in Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004),
“[p]erforming the merits-based portion of the COA inquiry [where a district court
has dismissed a habeas petition on procedural grounds] does not necessarily
work in the same way as it would if the district court had passed on the merits
of [the] petition.” When the district court’s judgment is on procedural grounds,
the district court “may or may not have received briefing from the parties or had
access to the underlying state records pertinent to the merits.” Id. Ultimately,
“[i]f those materials are unclear or incomplete, then COA should be granted, and
the appellate panel, if it decides the procedural issue favorably to the petitioner,
may have to remand the case for further proceedings.” Id.

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      In this case, the district court did not order respondent to submit briefing
addressing any of Taylor’s claims nor did the court order respondent to add to
the record any portions of the state court papers, including transcripts. Given
the limited record, it is impossible to evaluate whether reasonable jurists would
find it debatable that the issues raised in the petition on which the district
court’s ruling was solely procedural state valid claims of the denial of a
constitutional right. See id.
      The district court did, however, address the merits of the Brady claim.
Accordingly, we are more readily able to evaluate whether reasonable jurists
would find that the petition states a valid claim of the denial of a constitutional
right premised on Brady. The district court construed Taylor’s Brady claim as
arguing that the State withheld, in violation of Brady, evidence consisting of
surveillance tape(s). The district court, apparently without access to the tape(s)
or to the trial transcript, acknowledged that the surveillance tape(s) as described
appeared to contain exculpatory evidence.           The court held, based on
hand-written excerpts of the trial testimony that Taylor provided, that the
evidence was not suppressed because a witness testified at trial and described
the surveillance tape(s), providing exculpatory evidence. The court made no
findings as to whether the tape was ever disclosed to the defense, the
circumstances of the disclosure, or whether the defense knew in time to
effectively use the evidence at trial. See Powell v. Quarterman, 536 F.3d 325,
335 (5th Cir. 2008). Because the court determined that the evidence was not
suppressed without access to the trial transcript or a more complete record,
reasonable jurists would debate the district court’s denial of Taylor’s Brady
claim. Because the problem with the merits determination is tied up with the
deficient record, the Houser rational for issuing COA, vacating, and remanding
applies to the Brady claim as well. See Houser, 395 F.3d at 562.
      In conclusion, Taylor’s motion to supplement the record is GRANTED. For
the aforementioned reasons, COA is also GRANTED.               IT IS FURTHER

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ORDERED that the judgment is VACATED, and this case is REMANDED to the
district court for further proceedings consistent with this opinion. See Houser,
395 F.3d at 562; Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998)
(stating that this court may grant COA, vacate judgment, and remand without
requiring further briefing in appropriate case). We express no opinion on the
ultimate resolution of Taylor’s habeas petition.




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