            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m. 99-40780
                                         _______________



                                 MATTHEW THOMAS CLARKE,

                                                             Petitioner-Appellant,

                                              VERSUS

                                        GARY L. JOHNSON,
                      DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                  INSTITUTIONAL DIVISION,

                                                             Defendant-Appellee.

                                   _________________________

                            Appeal from the United States District Court
                                 for the Eastern District of Texas
                                          (4:97-CV-231)
                                 _________________________
                                         October 4, 2000


Before JOLLY, JONES, and SMITH,                      tition for writ of habeas corpus. Finding no
  Circuit Judges.                                    error, we affirm.

JERRY E. SMITH, Circuit Judge:*                                              I.
                                                        Clarke was twice convicted of sexual as-
   Matthew Clarke appeals the denial of a pe-        sault. See Clarke v. State, 813 S.W.2d 654
                                                     (Tex. App.SSFort Worth 1991), aff’d, 839
                                                     S.W.2d 92 (Tex. Crim. App. 1992), cert. de-
   *
                                                     nied, 507 U.S. 996 (1993). In two state
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                     habeas petitions stemming from those
determined that this opinion should not be
                                                     convictions, he alleges that his first counsel,
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.       Robert Scofield (who did not ultimately
47.5.4.                                              represent him at trial), failed to inform him of
a plea bargain offer, which he would have                evidentiary hearing if there were no findings to
accepted. Clarke introduced a disciplinary               which that presumption could attach, but here,
petition from the State Bar of Texas finding             the finding, by one of the state habeas courts,
Scofield guilty of numerous violations in five           that no plea offer was made suffices to invoke
different cases, including Clarke’s. Scofield            the presumption of correctness. The district
was disbarred, and the judgment reflected that           court granted a COA on whether a plea offer
he was guilty of each allegation contained in            was made that Clarke’s attorney did not
the disciplinary petition, even though the               convey to him.
particular violation in Clarke’s case was not
specifically addressed.                                                          II.
                                                             We consider three issues on appeal:
    The state habeas court, after reviewing the          (1) whether the doctrine of collateral estoppel
first application and considering affidavits from        barred the state habeas court from conducting
Clark’s mother and aunt and from the                     the evidentiary hearing; (2) whether a federal
prosecutors, concluded that no plea offer was            court should apply a deferential standard of
made and denied Clarke’s application based on            review to a state court’s factfinding in a state
these findings. The state habeas court re-               habeas court proceeding that challenges a con-
viewing the second petition did not address              viction different from the conviction
this issue. The Texas Court of Criminal Ap-              challenged in the federal proceeding; and
peals denied both petitions without written              (3) whether, if the state findings are entitled to
order.                                                   a presumption of correctness, the defendant
                                                         may appeal those findings, even though they
    Clarke sought relief in federal district court       were already appealed in the first proceeding.
under 28 U.S.C. § 2254. That court denied                Because an ineffectiveness of counsel claim is
relief on the basis of the recommendation of             a mixed question of fact and law, we review
the magistrate judge, who reasoned as follows:           the federal district court’s decision de novo,
                                                         but findings of fact meeting the statutory cri-
   [T]he state court found that no offer had             teria are entitled to a presumption of
   ever been made based upon the                         correctness. See Crane v. Johnson, 178 F.3d
   affidavits of the prosecutor[s] involved.             309 (5th Cir.), cert. denied, 120 S. Ct. 369
   Petitioner has no direct evidence that a              (1999).
   plea offer was ever made. The closest                                        III.
   petitioner comes is a purported letter                    Clarke argues that the federal district court
   from an attorney who was not trial                    erred in considering the findings of the Court
   counsel that states a plea may be                     of Criminal Appeals, because the decision of
   possible although no firm offer has been              the trial court that disbarred Scofield
   made. This claim is properly denied on                collaterally estopped the court from revisiting
   the findings of the trial court.                      the issue of whether the state had offered a
                                                         plea bargain. Because the decision to apply
   Findings of the state habeas court are gen-           collateral estoppel is an issue of law, we
erally entitled to a presumption of correctness.         review it de novo. “Collateral estoppel
The district court determined that the plea bar-         provides that ‘when an issue of ultimate fact
gain issue might ordinarily require an                   has once been determined by a valid and final


                                                     2
judgment, the issue cannot again be litigated                 this issue.
between the same parties in any future
lawsuit.’” Neal v. Cain, 141 F.3d 207, 210                        First, the issue must be fully and fairly lit-
(5th Cir. 1998) (quoting Ashe v. Swenson, 397                 igated. As a matter of Texas law, if the court
U.S. 436, 443 (1970)).                                        “enters a default judgment after conducting a
                                                              hearing or trial at which the plaintiff meets his
    We apply the Texas law of issue preclusion                evidentiary burden,” an issue is considered ful-
so that we properly may give the state court                  ly and fairly litigated. Pancake v. Reliance
judgment the full faith and credit to which it is             Ins. Co. (In re Pancake), 106 F.3d 1242, 1244
entitled by statute. See Gober v. Terra +                     (5th Cir. 1997) (citing In re Garner, 56 F.3d
Corp., 100 F.3d 1195, 1201 (5th Cir. 1996).                   677 (5th Cir. 1997), overruled on other
Under Texas law, to assert collateral estoppel                grounds, Kawaauhau v. Geiger, 523 U.S. 57,
a party must establish that “(1) the facts                    61-62 (1998)). In Pancake, the court found
sought to be litigated in the second action                   that the presentation of “the evidence and ar-
were fully and fairly litigated in the first action;          guments of counsel” was not enough to prove
(2) those facts were essential to the judgment                that the issue in question had been fully and
in the first action; and (3) the parties were cast            fairly presented. Id.
as adversaries in the first action” or “the party
against whom the doctrine is asserted was a                      Unlike the situation in Garner, where the
party or in privity with a party in the first                 defendant answered the complaint, then
action.” Sysco Food Servs., Inc. v. Trapnell,                 disappeared during a trial in which the plaintiff
890 S.W.2d 796, 801 (Tex. 1994).                              carried his burden of proof, the record in
                                                              Pancake did not conclusively indicate that a
    Clarke correctly states that a finding of fact            hearing had been conducted on a summary
in an administrative or civil proceeding may be               judgment motion, despite the statement in the
used collaterally to estop relitigation of that               final judgment that the court had “heard” the
fact in a criminal proceeding. See State v.                   arguments. See Pancake, 106 F.3d at 1244.
Aguilar, 947 S.W.2d 257, 259 (Tex. Crim.                      The disbarment court similarly stated that it
App. 1997).1 Clarke, however, has failed to                   had “heard the arguments on behalf of each
demonstrate that the trial court’s disbarment                 party” but that “[r]espondent had filed no
proceedings meet the above criteria. Thus, the                response to the Motion for Summary
federal habeas court did not err in revisiting                Judgment.” Thus, the question of whether the
                                                              issue was fully and fairly litigated is somewhat
   1
                                                              ambiguous.
      Aguilar presents a slightly different test for a
fact finding in an administrative proceeding to be                We need not reach this issue, however,
used collaterally to estop the relitigation of an issue
                                                              because the allegation that Scofield failed to
in a criminal proceeding. Aguilar holds that (1) the
fact must be fully and fairly litigated; (2) the fact
                                                              convey a plea offer to Clarke was not
issue must be the same; and (3) the fact finder must          necessary to the judgment. The disbarment
act in a judicial capacity. Aguilar, 947 S.W.2d at            court found Scofield guilty of ethical violations
259. Here, the state bar proceeding might be                  in five different cases, including Clarke’s, but
arguably administrative, but the fact that a trial            that court did not specifically discuss the issue
court actually decided the issue makes the Sysco              of Clarke’s plea offer. Consequently, the al-
test the appropriate one.

                                                          3
legations in the other four cases could have de-        made by a State court shall be presumed to be
termined the outcome.                                   correct,” and “[t]he applicant shall have the
                                                        burden of rebutting the presumption of
   Finally, the parties in the two actions are          correctness by clear and convincing evidence.”
neither the same nor in privity. The state bar          28 U.S.C. § 2254(e)(1).
association in the disbarment suit and the di-
rector of the prison system in Clarke’s habeas             Clarke contends that the district court erred
petition both represent the state, but the state        in granting the presumption of correctness to
is not a monolith. See, e.g., Public Util.              state court factfindings made in a separate
Comm’n v. Cofer, 754 S.W.2d 121, 125 (Tex.              habeas petition. He claims that this reliance
1988). Thus, the state bar and the prison sys-          eviscerates the statutorily required check on
tem are not the same party merely because               the reasonableness of the state court’s
both are state agencies.                                findings.

   In addition, the parties are not in privity.             For the deferential review to apply, the
“[P]rivity is not established by the mere fact          state court must adjudicate the petitioner’s
that persons may happen to be interested in the         claims on the merits, which means that the
same question or in proving the same set of             court must dispose of the case on substantive
facts.” Benson v. Wanda Petroleum, 468                  rather than procedural grounds. See Miller v.
S.W.2d 361, 363 (Tex. 1971). For privity to             Johnson, 200 F.3d 274, 281 (5th Cir. 2000),
exist, one party must “derive its claims through        cert. denied, 2000 U.S. LEXIS 5513 (Oct. 2,
a party to the other action.” State Farm Fire           2000) (No. 99-9891); Nobles v. Johnson, 127
& Cas. Co. v. Fullerton, 118 F.3d 374, 377              F.3d 409, 416 (5th Cir. 1997). The state court
(5th Cir. 1997). Here, the prison derived none          record on the habeas petition in which the
of its claims or defenses through the state bar         court conducted an evidentiary hearing was
association. Therefore, the factual findings in         adjudicated on the merits, but the second ha-
the disbarment proceedings against Scofield             beas court proceeding apparently used the re-
did not collaterally estop the state court from         sults of the first proceeding as a basis for de-
revisiting the existence of a plea offer when it        nying the writ. The magistrate judge who rec-
reviewed Clarke’s habeas petitions.                     ommended that this second petition be denied
                                                        made specific reference to the factual finding
                       IV.                              that the state had never offered Clarke a plea
   The Antiterrorism and Effective Death Pen-           bargain, thus incorporating the findings of the
alty Act (“AEDPA”) prevents a prisoner from             first proceeding to the second by reference.
obtaining relief with respect to any claim ad-
judicated on the merits in state court unless the          The state court almost certainly applied the
claim (1) resulted in a decision contrary to            findings from one proceeding to resolve the
clearly established federal law, as determined          other, because the court’s reference
by the Supreme Court, or (2) resulted in a de-          demonstrated that it knew of the other petition
cision based on an unreasonable determination           and proceeding, and the Court of Criminal
of the facts in light of the evidence presented         Appeals denied both habeas petitions on the
in the State court proceeding. 28 U.S.C.                same day, in orders signed by the same judge.
§ 2254(d). A “determination of a factual issue          The district court concluded that the statutory


                                                    4
deference to state court factual findings                number of times he can raise it.
applied to both petitions. We agree.
                                                            Moreover, habeas courts “need give no
    In the interest of judicial efficiency, courts       more than summary consideration to repetitive
often consolidate hearings on successive pe-             petitions.” Id. (citing Salinger, 265 U.S. at
titions and encourage prisoners to consolidate           231-32). Although the petition in question is
their issues into a single petition. See, e.g.,          not technically repetitive (because it challenges
Montgomery v. Meloy, 90 F.3d 1200 (7th Cir.              incarceration from a different conviction), the
1996); Gilmore v. Armontrout, 861 F.2d 1061              factual issue providing the basis for the
(8th Cir. 1989). By allowing the same state              petition is not only repetitive but identical.
habeas court factfinding to support the denial
of two habeas petitions based on the same                   Thus, a consolidation of the evidentiary
factual issue, the federal district court                process for both is consistent with this rule.
essentially treated the two petitions as though          Perhaps a more explicit consolidation would
they had been consolidated. If the trier of fact         have aided the reviewing court in
properly conducted the hearing, an additional            understanding the record, but the district court
hearing with the same facts and witnesses to             did not err in ruling in essence that the habeas
review the issue for the second petition will            court could consolidate the two petitions in
neither yield new information nor change the             the interest of efficiency.
result. Cf. Wong Doo v. United States, 265
U.S. 239 (1924).                                                                V.
                                                            Clarke claims that even if the district court
   This situation is distinct from the general           may attach a presumption of correctness to the
bar against res judicata in the habeas context.          findings made in a state habeas proceeding in
Even though res judicata cannot prevent an               conjunction with another habeas petition, it
issue from being raised on habeas even when              was inappropriate to do so here, because the
a previous habeas petition decided the issue,            state habeas court did not hold a live hearing
see, e.g., McClesky v. Zant, 499 U.S. 467,               on the issue or otherwise give him an
479 (1991); Salinger v. Loisel, 265 U.S. 224,            opportunity to present his case. Thus, he
230-31 (1924), the policy behind that rule               argues, these findings are not entitled to a
does not apply here. The traditional bar                 presumption of correctness under §
against res judicata developed so that the               2254(e)(1).2 “When there is a factual dispute,
determination of an issue at trial would not             that, if resolved in the petitioner’s favor,
preclude the prisoner from challenging that              would entitle him to relief and the state has not
issue on habeas. As this doctrine developed,             afforded a full and fair evidentiary hearing, a
the Court also affirmed that res judicata and            federal habeas corpus petitioner is entitled to
collateral estoppel should not be used to limit          discovery and an evidentiary hearing.” Perillo
the number of times a prisoner might attempt
to obtain habeas relief. See Hardwick v.
Doolittle, 558 F.2d 292, 295 (5th Cir. 1977).               2
                                                               Clarke also challenges the factual accuracy of
Here, allowing the habeas court to consolidate           the findings, but credibility choices made by state
two simultaneous petitions neither prevents              trial courts may not be reweighed by the federal
Clarke from raising an issue nor affects the             court. See Marshall v. Lonberger, 459 U.S. 422
                                                         (1983).

                                                     5
v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996)
(internal citations omitted). But, “[a] full and
fair hearing does not necessarily mean a live
hearing. In the proper circumstances, we have
afforded the presumption of correctness to
‘paper hearings.’” Id. at 446.

    In the paper hearing, the state court
reviewed affidavits of Clarke’s mother and
aunt and of the prosecutors. For a paper
hearing to be sufficient, the petitioner must be
afforded a full opportunity to present the
relevant facts. See Brown v. Johnson, 224
F.3d ___, 2000 U.S. App. LEXIS 21073,
at *21 (5th Cir. 2000). Clarke contends he
had no opportunity to rebut the prosecution’s
affidavits that the state had never made a plea
offer.

    Consistently, however, we have upheld the
validity of paper hearings and have granted
them the presumption of correctness. See
Sawyers v. Collins, 986 F.2d 1493, 1504
& n.19 (5th Cir. 1993); Baldree v. Johnson,
99 F.3d 659, 663 (5th Cir. 1996). These hear-
ings must give the petitioner an opportunity to
present his side, but the court need not hear a
rebuttal per se if the facts are adequately de-
veloped in the record and affidavits. See Car-
ter v. Johnson, 131 F.3d 452, 460 (5th Cir.
1997); see also Hill v. Johnson, 210 F.3d 481,
489 (5th Cir. 2000), petition for cert. filed
(Aug. 28, 2000) (No. 00-5947). Thus, the dis-
trict court did not err in giving the fact findings
of the state habeas court the presumption of
correctness under § 2254(d).

   AFFIRMED.




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