            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 98-20248
                                          Summary Calendar
                                          _______________

                               JAMES EDWARD HAGGERTY,
                                                              Petitioner-Appellant,
                                               VERSUS

                                  GARY L. JOHNSON,
                      Director, Texas Department of Criminal Justice,
                                   Institutional Division,
                                                              Respondent-Appellee.
                                    _________________________

                            Appeal from the United States District Court
                                for the Southern District of Texas
                                         (H-96-CV-3939)
                                 _________________________

                                           December 6, 1999

Before SMITH, BARKSDALE, and                          a firearm.
  STEWART, Circuit Judges.
                                                          A preliminary revocation hearing was held
PER CURIAM:*                                          in August 1995. The main evidence was
                                                      affidavits of two officers of the San Augustine
   James Haggerty appeals the denial of his           Police Department, establishing that a .22
petition for writ of habeas corpus. We reverse        caliber pistol, among other items, was stolen
and remand.                                           during a burglary at the Whitton Building in
                                                      San Augustine, Texas.
                        I.
    Haggerty is serving a sentence on his 1990           Chief Deputy Larry Saurage swore that he
conviction of burglary of a building and was          had been informed by a confidential informant
released on parole in November 1993. State            that Haggerty was the burglar; that the stolen
officials alleged that in July 1995, he violated      pistol was in Laura Coleman’s possession; that
rules 2 and 5 of the conditions of his parole by      Coleman was questioned and stated that
committing a burglary, unlawfully possessing          Haggerty and Ricky Borders came to her
a firearm as a convicted felon, and possessing        house and wanted to sell a pistol, which she
                                                      purchased after she was told the gun belonged
                                                      to Borders; that Coleman turned the pistol
                                                      over to Saurage; and that the pistol was
   *
      Pursuant to 5TH CIR. R. 47.5, the court has     identified later as the one taken during the
determined that this opinion should not be            burglary. Officer Lynn Lyons, meanwhile,
published and is not precedent except under the       swore that she had been contacted by a
limited circumstances set forth in 5TH CIR. R.        confidential informant who was in possession
47.5.4.
of a .22 caliber pistol that the informant                  The hearing officer found the evidence
thought to have been stolen and that she had             insufficient to support the burglary allegation
obtained from Haggerty, Borders, and an                  but found that Haggerty had possessed a pistol
unidentified white male who waited in a                  in violation of rules 2 and 5. The Board of
vehicle, and that the pistol was identified as the       Pardons and Paroles revoked Haggerty's
one stolen during the burglary.                          parole.

   At the revocation hearing, Coleman and                    Haggerty moved to reopen the revocation
Lyons were called as witnesses; Borders had              proceedings, po inting to the lack of evidence
been subpoenaed but failed to appear.                    that the pistol was found in his possession. He
Because Saurage was out of town, the state               noted that Coleman testified that she bought
submitted his affidavit in lieu of live testimony,       the pistol from Borders and that Haggerty had
and the hearing officer found good cause to              nothing to do with the sale; that Borders’s
disallow cross-examination and confrontation             testimony was important and that no
of Saurage. Admitted into evidence were the              explanation was given for Borders’s failure to
preliminary hearing report; an indictment                appear; and that Saurage’s affidavit
charging Haggerty with burglary of a building;           contradicted Coleman’s testimony about what
Saurage’s affidavit; and the subpoena served             Borders said and about what Coleman told
on Saurage.                                              Saurage. Haggerty argued that the state had
                                                         failed to prove that he knew the pistol was
   In his affidavit, Saurage averred that                stolen, and his parole could not be revoked
Coleman stated that she had purchased the                based merely on his presence during the sale.
pistol from Haggerty and Borders and that                In November 1995, the Board of Pardons and
Borders told him that on the night of the                Paroles granted Haggerty’s motion to reopen
burglary he met Haggerty, who had the gun in             to take Saurage’s live testimony, noting that
his possession. Borders said that they sold the          the findings were not supported by a
gun to Coleman for crack cocaine and told                preponderance of the evidence or were
Coleman that the pistol belonged to Borders.             contrary to law, that the police officer was not
                                                         present at the hearing, and that there were no
    Lyons testified that he had been contacted           indicia of reliability to support his affidavit.
by Saurage to meet a man regarding a stolen
firearm, that Saurage had retrieved a stolen                 At the re-opened revocation hearing,
weapon from a confidential informant, and that           Saurage testified, live, to the following: A
it was identified by the victim as the pistol            confidential informant told him that a stolen
stolen during the burglary. Coleman testified            gun had been sold to Coleman; Coleman told
that Haggerty and Borders had come to her                him that she purchased the gun from Haggerty
apartment to sell a gun and that she bought the          and Borders; Borders told him that Haggerty
gun from Borders for $20, that when she                  was in possession of the gun, that Borders and
learned the gun was stolen, she turned it over           Haggerty went together to Coleman’s
to police, and that she told Saurage that                apartment, told Coleman the gun was
Borders had sold her the gun and that,                   Borders’s, and sold the gun to Coleman for
although Haggerty had accompanied Borders                crack cocaine; and that Coleman runs a crack
during the sale, Haggerty was not involved in            house and is a known crack dealer. Haggerty
the sale of the gun.                                     testified that Coleman had no reason to lie at
                                                         the prior revocation hearing, that he was not
    Haggerty testified that a third man, “Gary,”         involved in the possession of the firearm, and
tried to sell the pistol to him and that Borders         that he did not believe that Borders told
told Gary that he knew a place to get rid of the         Saurage that Haggerty was involved in the sale
pistol. Haggerty accompanied Borders to                  of the gun, because Haggerty had spoken with
Coleman’s apartment and witnessed Borders                Borders approximately one month after the
selling the gun to Coleman. He testified that            first revocation hearing, and Borders had
he never possessed the gun and denied any                denied giving Saurage such a statement.
involvement in its sale.

                                                     2
    The hearing officer again concluded that          statements bore sufficient indicia of reliability,
Haggerty had violated rules 2 and 5 by                and whether the error in denying
unlawfully possessing the pistol. In May 1996,        confrontation, if any, was harmless.
the Board of Pardons and Paroles revoked
Haggerty’s parole. In June 1996, Haggerty
filed a second motion to reopen, asserting that
there was no evidence or affidavit to support
Saurage’s testimony about what Borders had
said, that Borders was subpoenaed to testify
but failed to appear without explanation, that
Saurage’s hearsay testimony was contradicted
by Coleman’s testimony under oath, and that
the hearing officer improperly credited
Saurage’s testimony over Coleman’s.

                      II.
   In November 1996, after properly
exhausting state habeas opportunities,
Haggerty, proceeding pro se and in forma
pauperis, filed a 28 U.S.C. § 2254 petition in
federal court, attaching a copy of his state
habeas application as his allegations and
moving to strike Saurage’s affidavit,
essentially challenging its substance.

    The court granted the state’s motion for
summary judgment, determining in pertinent
part that the hearing officer had good cause to
allow Borders’s hearsay statements to be
introduced through the testimony of Saurage
and Coleman, despite the hearing officer’s
failure to make an explicit good-cause finding,
and concluded that Haggerty's due process
rights had not been violated by the use of
Saurage’s and Coleman’s’s hearsay statements
or “by the use of Borders’ hearsay statements
because Haggerty, represented by counsel, did
not object or otherwise assert his right to
confront and cross-examine Borders,” and
because the record showed that statements by
Borders would have been “cumulative and
repetitive of other evidence, primarily
Coleman’s live testimony.”

   The court therefore dismissed Haggerty's
§ 2254 petition with prejudice and denied him
a certificate of appealability (“COA”). This
court granted a COA on the questions of
whether Haggerty adequately asserted his right
to confront and cross-examine Borders,
whether good cause existed to disallow such
confrontation and cross-examination of
Borders, whether Borders’s hearsay

                                                  3
                      III.                              whether good cause existed), that Borders’s
   Because Haggerty filed his § 2254 petition           statements implicating Haggerty in possessing
after the effective date of the Antiterrorism           the gun had a high degree of trustworthiness,
and Effective Death Penalty Act (“AEDPA”),              because, through his statements, Borders
AEDPA applies to his appeal.1 Although                  implicated himself in the crime of selling the
AEDPA created a standard of review for state            pistol to obtain drugs, and that there was no
court decisions rendered on the merits, see             error, because the statements were properly
28 U.S.C. § 2254(d), the § 2254(d) standard             admitted.
is not applicable to federal constitutional
claims that were not adjudicated on the merits                                  V.
in state court, and we review such claims                  The Due Process Clause requires that,
de novo.2                                               before parole is revoked, a preliminary hearing
                                                        be held “to determine whether there is
   Although Haggerty raised the issue, the              probable cause or reasonable ground to believe
state habeas court did not address whether he           that the arrested parolee has committed acts
was denied the right to confront and cross-             that would constitute a violation of parole
examine Borders. Because the state habeas               conditions.” See Morrissey v. Brewer, 408
court made no findings or conclusions on this           U.S. 471, 485 (1972). The parolee then is
issue, our review is de novo. See Nobles, 127           entitled to a final revocation hearing, at which
F.3d at 416. We also review a summary                   he has “an opportunity to be heard and to
judgment de novo, using the same standard               show, if he can, that he did not violate the
applicable in the district court. See Matagorda         conditions, or, if he did, that circumstances in
County v. Law, 19 F.3d 215, 217 (5th Cir.               mitigation suggest that the violation does not
1994).                                                  warrant revocation.”3

                      IV.                                   The minimum procedural due process
    Haggerty argues that he adequately                  requirements for the final revocation hearing
asserted his right to confront and cross-               include (1) written notice of the alleged
examine Borders, that good cause did not exist          violations of parole; (2) the disclosure to the
to disallow his confrontation and cross-                parolee of evidence against him; (3) the
examination of Borders, that Borders’s                  opportunity to be heard in person and to
hearsay statements lacked a sufficient indicia          present witnesses and documentary evidence;
of reliability, and that Saurage’s account of           (4) the qualified right to confront and cross-
what Borders told him contradicted Coleman’s            examine adverse witnesses unless the hearing
live testimony that Haggerty had nothing to do          officer specifically finds good cause for not
with the sale or possession of the gun.                 allowing confrontation; (5) a neutral and
Haggerty asserts that it was the state’s                detached hearing body; and (6) a written
obligation to produce all witnesses it had on           statement by the factfinders as to the evidence
whose testimony it was going to rely to obtain          relied on and reasons for revoking parole. See
a revocation, and that the error in denying             Morrissey, 408 U.S. at 489; McBride,
confrontation was not harmless error.                   118 F.3d at 437. The finding of a parole
                                                        violation should be based on verified facts and
   The state argues that Haggerty did not               be “informed by an accurate knowledge of the
object to the hearsay testimony (obviating the          parolee’s behavior.” Morrissey, 408 U.S.
need for the hearing officer to determine               at 484. A revocation hearing, however, is not
                                                        a criminal prosecution; “the process should be
                                                        flexible enough to consider evidence including
       1
      See Lindh v. Murphy, 521 U.S. 320, 336            letters, affidavits, and other material that
(1997); Green v. Johnson, 116 F.3d 1115, 1120           would not be admissible in an adversary
(5th Cir. 1997).
   2                                                       3
      Nobles v. Johnson, 127 F.3d 409, 416 (5th              Morrissey, 408 U.S. at 487-88; see McBride
Cir. 1997), cert. denied, 118 S. Ct. 1845 (1998).       v. Johnson, 118 F.3d 432, 437 (5th Cir. 1997).

                                                    4
criminal trial.” Id. at 489.
                                                               In Farrish, 836 F.2d at 979, this court
   Despite this lowered standard, hearsay                   upheld a monetary judgment in favor of a
testimony remains problematic, because it                   parolee against the Mississippi Commissioner
“prevents the parolee from confronting and                  of Corrections for the denial of due process at
cross-examining the declarant,” and “unrel iable            a revocation hearing. The only evidence that
hearsay undermines the accuracy of the fact-                he had committed the alleged parole violation
finding process.” Farrish v. Mississippi State              was an informant’s statement introduced
Parole Bd., 836 F.2d 969, 978 (5th Cir. 1988).              through a police officer’s testimony. Id. at
“[C]ourts considering the admissibility of                  978. Farrish had requested the informant’s
hearsay in revocation proceedings have                      presence at the hearing. Id. at 970. We
adopted an approach which balances the                      determined that the statements were inherently
parolee’s interest in confronting a particular              unreliable because, if believed, they “shifted a
witness against the government’s good cause                 potential conviction for drug dealing from [the
for denying it, particularly focusing on the                informant] to Farrish.” Id. at 978. We held
‘indicia of reliability’ of a given hearsay                 that this was “a classic example of when the
statement.” Id. Hence, in carving out a good-               use of hearsay impermissibly violates a right to
cause exception to the general rule that                    confront and cross-examine the declarant.” Id.
hearsay cannot be employed even in a parole
hearing, the courts have hewn narrowly,                        In McBride, 118 F.3d at 439-40, we held
finding good cause only when strong “indicia                that the petitioner’s right to confront and
of reliability” of the hearsay exist SSwhich                cross-examine an adverse witness was violated
indicia they have found primarily in cases in               when his parole was revoked on the sole basis
which field tests or other objective measures               of hearsay testimony. McBride was charged
are being reported by hearsay.4                             with committing an aggravated assault while
                                                            on parole, but ultimately a jury acquitted him.
                                                            Id. at 433-34. Based on the purported
   4
     See United States v. Grandlund, 77 F.3d 811,           aggravated assault, the parole board charged
811 (5th Cir. 1996), clarifying United States v.            that McBride had violated his parole by failing
Grandlund (“Grandlund I”), 71 F.3d 507, 510                 to obey state law. Id. at 434. The alleged
(5th Cir. 1995); see also United States v. Kindred,         victim did not testify at the revocation hearing.
918 F.2d 485, 486 (5th Cir. 1990) (urinalysis);             Id. A police officer testified concerning what
United States v. Bell, 785 F.2d 640 (8th Cir. 1986)         the victim had told him about the assault, and
(same); United States v. Penn, 721 F.2d 762 (11th           parole was revoked based on the officer’s
Cir. 1983) (same). In Penn, the court noted that            hearsay testimony and over objection. Id.
   [t]he difficulty and expense of procuring live
   witnesses would not suffice as an excuse for                The facts of these cases virtually mirror
   admitting hearsay testimony in a criminal                those here. The district court did not apply the
   trial, but the Court tenders this as an                  precedent to this case, however, because it
   example of a situation in which hearsay                  concluded that Haggerty had waived his due
   could be admissible in a probation                       process rights by failing to object to Saurage’s
   revocation proceeding. Likewise, the Court               hearsay statements or to assert his right to
   recommends the conventional substitutes for              confront and cross-examine Borders.
   hearsay: affidavits, depositions and
   documentary evidence. These conventional                                  VI.
   substitutes tend to bear the “indicia of                                   A.
   reliability” upon which the Court has
   focused in the related context of determining               The state argues that the right of
   whether a given hearsay statement should be
   admissible in a criminal trial.
                                                            (...continued)
Id. at 765. Of course, this does not assist the state       appears not in the affidavit or other testimony of
here, because the hearsay on which it depends               the witness, but only in the unsubstantiated second-
                            (continued...)                  hand report of an involved law officer.

                                                        5
confrontation and cross-examination is an              make a statement to Saurage.           These,
affirmative right that must be invoked by the          collectively, must be understood appropriately
parolee, and asserts that there is no                  to have raised Haggerty’s objection to the
“indication” that Haggerty objected to                 testimony.
Saurage’s hearsay testimony about what
Borders said or to the violation of his right to
confront and cross-examine Borders. The
state concedes that Haggerty’s lack of
objection regarding Borders’s statements
could be explained by Borders’s failure to
appear at the hearing, despite a subpoena. The
state notes, however, that Haggerty did not
request, in his motion to reopen, that Borders
be subpoenaed to attend the new hearing, and
asserts that Haggerty waived any objection by
failing to object to the hearsay nature of
Borders’s information that came in through
Saurage’s testimony at the reopened hearing.


   This argument is unavailing. In McBride,
118 F.3d at 438-39, we explained that while
that defendant’s “invocation of his Sixth
Amendment rights was not as clear as it could
have been[,] we do not believe that preserving
the Sixth Amendment right to confront and
cross-examine adverse witnesses requires
parolees to invoke their right in only one way.”

    Haggerty made robust, if somewhat
indirect, objections to the use of Saurage’s
hearsay testimony. In his motion to reopen
filed after the original revocation hearing,
Haggerty argued that Borders’s testimony was
“very important” to the question of whether he
and Borders or just Borders sold the pistol to
Coleman. He noted that Borders had been
subpoenaed but did not appear and that no
explanation for his absence was offered. He
argued that Borders’s statement that he and
Borders met on the night of the burglary; that
he had the gun with him; and that they then
sold it to Coleman could not be true, because
the record showed that the sale of the pistol
did not occur until after the burglary.

    In his motion to reopen the reopened
hearing, Haggerty asserted that Saurage’s
testimony about Borders’s statement was false
and unsupported by any written statement or
affidavit. He noted again that Borders had
been subpoenaed but failed to appear, and he
asserted that Borders told him that he did not

                                                   6
                       B.                                    cocaine, and that Borders had told Coleman
    Even assuming, arguendo, that Haggerty                   that the gun belonged to him. Based on
failed to assert his confrontation right or to               Saurage’s testimony, the hearing officer
object to the admission of Borders’s hearsay,                questioned the credibility of Coleman’s
the district court’s failure explicitly to find              testimony that she had purchased the gun for
good cause for not allowing confrontation is                 $20.
reviewable for plain error.5 Under FED. R.
CRIM. P. 52(b), we can correct forfeited errors                  Coleman testified that Haggerty and
when the appellant shows the existence of an                 Borders came to her apartment and wanted to
error, that it was clear or obvious, and that it             sell a pistolSSbut also that Borders said the
affected his substantial rights, see United                  gun was his. She testified that she purchased
States v. Calverley, 37 F.3d 160, 162-64 (5th                the gun from Borders for $20 and that
Cir. 1994) (en banc), and when the error                     Haggerty had nothing to do with the sale.
seriously affects the fairness, integrity, or
public reputation of judicial proceedings, see                  Haggerty testified that a third man
United States v. Olano, 507 U.S. 725, 735-36                 possessed the gun and that he merely
(1993).                                                      accompanied Borders to Coleman’s apartment
                                                             during the sale, but had nothing to do with the
    A parolee’s right to confront an adverse                 possession or sale of the pistol. Haggerty’s
witness may be disallowed on a finding of                    testimony is consistent with the police report,
good cause. Grandlund I, 71 F.3d at 510. In                  which indicated that a confidential informant
determining whether good cause exists, the                   told Lyons that she had possession of a pistol
parole board must weigh the defendant’s                      she had obtained from Haggerty, Borders, and
interest in confronting the witness against the              an unidentified white male who waited in a
state’s interest in denying confrontation. See               vehicle.
id. “A critical consideration is the indicia of
reliability of the challenged evidence.” Id.                    The court concluded that there was good
The failure to make a specific finding of good               cause to allow the hearsay statements of
cause “may require reversal in most instances,               Borders through Saurage’s and Coleman’s
but may be found to be harmless error where                  testimony, that the hearing officer determined
good cause exists, its basis is found in the                 that the statements were reliable, and that
record, and its finding is implicit in the                   Haggerty was allowed to testify about what
[hearing officer’s] rulings.” Id. (internal                  Borders told him. The court also noted that
footnotes and citations omitted).                            Borders’s statements were “cumulative and
                                                             repetitive of other evidence, primarily
    The revocation of Haggerty’s parole was                  Coleman’s live testimony.”           Saurage’s
based, in pertinent part, on Saurage’s                       testimony about what Borders said was not
testimony that Borders told him that Haggerty                cumulative or repetitive of Coleman’s
possessed the gun, that they had decided to                  testimony, except to the extent that each
sell the gun to Coleman in exchange for crack                testified that Borders and Haggerty went to
                                                             Coleman’s apartment and that Borders said the
                                                             gun was his.
    5
      See Crawford v. Falcon Drilling Co., Inc.,                 The hearing officer found that there were
131 F.3d 1120, 1123 (5th Cir. 1997); Cf. United              sufficient indicia of reliability to support the
States v. Alaniz-Alaniz, 38 F.3d 788, 791-92 (5th            alleged parole violations based on Saurage’s
Cir. 1994) (assuming that the district court’s               testimony that Borders said that Haggerty was
failure to conduct the good-cause balancing test
and use of hearsay testimony, admitted without               in possession of the gun, that they went
objection at a federal prisoner’s revocation hearing,        together to Coleman’s apartment, and that
was plain error, but concluding that Alaniz had              they sold the gun to Coleman for crack
failed to demonstrate that the district court violated       cocaine; Coleman’s statement to police that
his substantial rights by relying on the testimony).         she purchased the gun from Borders and
                                                             Haggerty; and her testimony that Haggerty

                                                         7
was present during the sale of the gun. There          why its interest in denying confrontation of
is, however, no indication that Borders’s              Borders outweighed Haggerty’s right of
statement that Haggerty was in possession of           confrontation. Borders had been subpoenaed
the gun was reliable.                                  to appear at the first revocation hearing but
                                                       failed to do so, and there was no explanation
   Although Haggerty was allowed to testify            for that failure. There is no indication that
as to his version of events and to cross-              Borders was subpoenaed to appear at the
examine Saurage, he was not allowed to                 reopened hearing, nor allegation that Haggerty
confront BordersSSthe only source of the               procured Borders’s absence.
evidence that Haggerty possessed the gun.
Even the hearing officer’s finding that Saurage            In Belk v. Purkett, 15 F.3d 803, 813 (8th
was more credible than Haggerty or Coleman             Cir. 1994), the court rejected as irrelevant the
does not satisfy the good-cause balancing test.        state’s argument that the parolee had failed to
                                                       request the presence of adverse witnesses at
                                                       the revocation hearing.          “For the final
   Saurage’s credibility was not the issue. It         revocation hearing . . ., it is incumbent upon
may be that Borders told Saurage that                  the state authorities to produce the witnesses
Haggerty had possession of the gun, but                upon whose testimony said authorities rely to
Haggerty did not have the opportunity to               strip a parolee of his liberty. Only when the
confront Borders about that statement, which           hearing officer specifically finds good cause
was the only evidence that Haggerty possessed          for disallowing confrontation is the state
the pistol and was admitted for the truth of the       relieved of its burden.” Id. We agree.
matter asserted.
                                                           The record does not support a finding of
   Haggerty specifically denied possessing the         good cause, nor is such a finding implicit in the
pistol. There was no live testimony or                 hearing officer’s rulings. Accordingly, even
admissions that corroborated Borders’s                 assuming that Haggerty did not properly
statement that Haggerty did so. The only               object, the hearing officer’s failure to make a
element of Borders’s statement that was                specific finding of good cause to disallow
corroborated was that he and Haggerty went             confrontation of Borders and to weigh
to Coleman’s apartment, Borders told her the           Haggerty’s interests against the state’s interest
gun was his, and Borders sold the gun to her.          is reversible error.
Borders’s statement that he and Haggerty
were going to sell the pistol directly                    Concluding that the state violated
contradicts Coleman’s and Haggerty’s live              Haggerty’s Sixth Amendment right to confront
testimony.                                             and cross-examine Borders during his parole
                                                       revocation hearing, we REVERSE the denial
    This uncorroborated hearsaySSwhich, even           of habeas relief and REMAND so the district
if spoken by Borders, would have been said in          court can return this matter to the parole board
suspect circumstances, in which it cannot be           for a sufficient parole revocation hearing.
reliably asserted that Borders would have been
speaking truthfullySSstrays rather far from the
core situation in which the good-cause
exception is appropriateSStestimony about
verifiable, objective drug testing, and far too
from any suggested usage of affidavit or other
testimony given under oath by the witness
directly to the court. In essence, the hearsay
testimonySSBorders’s statement that Haggerty
possessed the pistolSSbears little or no indicia
of reliability.

   Moreover, the state advances no reason

                                                   8
