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

                                                                            FILED
                                                                         November 6, 2007

                                       No. 05-20208                   Charles R. Fulbruge III
                                                                              Clerk

FREDERICK LEE KNOTTS

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:03-CV-5302


Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
       Before this Court is an appeal of the district court’s denial of Frederick
Knotts’s (“Knotts”) petition for a writ of habeas corpus brought pursuant to 28
U.S.C. § 2254. We affirm, although on different grounds than those articulated
by the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                    No. 05-20208

                      I. FACTS AND PROCEEDINGS
      A grand jury in the 339th District Court of Harris County, Texas indicted
Knotts for delivery of more than one gram, but less than four grams, of cocaine.
Knotts entered a plea of not guilty and was tried before a jury. The Texas
Fourteenth Court of Appeals adequately summarized the facts that were
presented to the jury as follows:
            On September 11, 1999, Houston Police Officer David Bearden
      [(“Bearden”)] was working as an undercover narcotics officer. While
      Bearden was driving along a city street looking for street dealers, he
      saw a man, Tealzie Randall [(“Randall”)], standing near the curb.
      Bearden pulled up to the curb and asked Randall where he could
      buy some “weed.” Randall got in Bearden’s pickup truck and the
      conversation quickly diverted from marijuana to cocaine.
             Bearden told Randall that he would purchase $50 of cocaine
      if he could get it “wholesale.” Bearden was directed to drive to a
      nearby house. Randall got out of Bearden’s car and went to the
      door, but returned after learning the occupant did not have enough
      cocaine on hand to complete the transaction. Bearden was then
      directed by Randall to drive to another location where they came
      upon appellant [Knotts] sitting in an automobile. Bearden gave
      Randall the money. Randall approached appellant and spoke to him
      a short while. Randall returned to Bearden with the money and
      said appellant wanted to move to another location to complete the
      sale.
             Bearden drove, as instructed, to the parking lot of a nearby
      convenience store. Appellant followed in his car and parked nearby.
      Randall exited Bearden’s truck with the money and walked over to
      appellant’s vehicle. Bearden watched as Randall got in appellant’s
      vehicle; the two men appeared to make an exchange. Randall then
      exited appellant’s car and returned to Bearden’s truck with four
      “rocks” of crack cocaine. As Bearden was inspecting the contraband,
      appellant got out of his vehicle, walked up to Bearden’s window,
      identified himself as “Fred,” and assured Bearden the cocaine was
      “good.” Appellant also gave Bearden his pager number and told him
      to call when he needed more cocaine.
Knotts v. State, 61 S.W.3d 112, 113–14 (Tex. App. 2001). A chemist with the
Houston Police Department Crime Lab testified that the cocaine weighed 1.1

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grams, and Bearden testified that the cocaine weighed approximately 1.22
grams.
       At trial, Knotts called Randall as his only witness.1 After Randall took the
witness stand, however, the following exchange occurred outside of the presence
of the jury:
       THE COURT: Are you the same Mr. Randall who the officers have
       alleged was present the night that this actually was supposed to
       have occurred?
       [RANDALL]: That’s right.
       THE COURT: All right. After listening to Mr.—the officer’s
       testimony—and not saying whether I believe or disbelieve it—but
       I think you’re placing yourself in the position—I don’t know what
       your testimony is going to be. But you might be subject to
       being—the district attorney filing on you for committing perjury if
       you testify to something different than what the officer testified to,
       and I’m not saying whether that’s right or wrong. Just giving you
       your rights. You do not have to testify. But I’ve got a lawyer
       standing by here who would be glad to talk to you about your rights.
       You want to talk to him about it before you testify?
       [RANDALL]: Which one?
       THE COURT: Sir? No, this lawyer here represents the defendant.
       He can’t represent you. That might be a conflict of interest. You
       understand what I’m telling you? They may be filing on you for a
       criminal offense if you testify to something different from what the
       State thinks occurred.
       [PROSECUTOR]: May I?
       THE COURT: I want to be sure he understands what I’m telling
       him first.
       [RANDALL]: Yeah, I understand.



       1
         For his role in the instant offense, Randall was charged with and pled guilty to
delivery of cocaine. As part of his guilty plea, Randall entered into an “along with” stipulation,
where he confessed to committing the offense with Knotts. Nevertheless, an affidavit from
Knotts’s counsel stated that Randall was supposed to testify that Knotts was not involved in
the instant drug transaction.

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                            No. 05-20208

THE COURT: Do you want to waive your Fifth Amendment right
and go ahead and testify? I’ve got a lawyer standing here that can
talk to you about that if you want to talk to a lawyer about it.
[RANDALL]: Well, I’m just going to tell what—
THE COURT: Sir?
[RANDALL]: I was just going to tell what happened.
THE COURT: Well, I’m not interested in what happened. I’m
interested in protecting your rights. And if you say something
different than the police say happened, they most likely are going to
file on you for perjury. You’ll be indicted. If you think you can fight
that—I mean, I’m not saying who’s right or who’s wrong. I just
want to be sure—I want you to know you place yourself in a position
where you could have criminal charges result from it by testifying.
You do not have to testify if you’ve exercised your Fifth Amendment
privilege. If you want to testify, you can waive that. You can
certainly tell whatever you want to say. I just want to be sure you
understand that.
[RANDALL]: Okay.
THE COURT: Do you want to testify?
[RANDALL]: Right.
THE COURT: All right. You want to give up your Fifth
Amendment right and testify?
[RANDALL]: Right. Right.
THE COURT: All right.
[PROSECUTOR]: Judge, when he and I spoke this morning, he did
not seem to comprehend what an along with stipulation is. And I
think that—I’m not sure how he can give up his Fifth Amendment
right without someone explaining––
THE COURT: I’ve tried to explain to him if he testifies something
contrary to what he’s done before, he may be filed on for sure. And
I’ve got a lawyer. He says he still wants to testify, and that’s all I
can do.
Do you understand that? Mr. Randall, you understand?
[RANDALL]: I don’t understand what you’re saying. If I testify,
that they’ll—

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                             No. 05-20208

THE COURT: As I understand, from listening to the prosecutor and
having listened to the police, that you have signed some statements
indicating an along with stipulation. If you would now get on the
stand and deny that, they could file on you for perjury.
[RANDALL]: But I talked to my lawyer. He saw the papers that I
had signed.
THE COURT: I’m going to––I’m just telling you what can happen
if you testify, and that’s why you might want to talk to an
independent lawyer about your rights if you want to. And I’ve got
one standing by to talk to you if you want to talk to that person.
You can give up that right though and testify.
[PROSECUTOR]: And if you would explain he’s on probation out of
this court, if he is filed on for a new offense, they will also be filing
a motion to revoke his probation.
[APPELLANT’S COUNSEL]: Judge, I think all of this—I mean,
that’s all trying to explain to this guy; but it’s untruthful
testimony—
THE COURT: Okay. I know—and I’m not saying what’s truthful
and what’s not truthful. I don’t think—Mr. Justin, would you talk
to him and explain to him?
MR. JUSTIN [appointed counsel]:        Can I take him out in the
witness room?
THE COURT: Sure. Go in the witness room and talk to him.
(Brief recess.)
THE COURT: All right. Bring Mr. Randall back to the stand.
THE COURT: You are Mr. Tealzie Randall; is that right?
[RANDALL]: Right.
THE COURT: Mr. Randall, you talked to a lawyer now. You may
testify if you want to testify, or you may claim your Fifth
Amendment right if you do not want to testify. What do you want
to do?
[RANDALL]: I believe I’m going to have to take the Fifth.
THE COURT: You want to take the Fifth Amendment?
[RANDALL]: Right.

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                                 No. 05-20208

      THE COURT: You do not want to testify then?
      [RANDALL]: No, because they—if I testify, they said they'll
      revoke my probation.
      THE COURT: Well, I can’t go into that. You want to invoke your
      Fifth Amendment privilege or not? That’s all I want to know.
      [RANDALL]: Right.
      THE COURT: All right.
Knotts, 61 S.W.3d at 114–16. Randall thus did not testify, and on May 16, 2000,
the jury convicted Knotts for delivery of cocaine and sentenced him to life in
prison as a habitual offender.
      On direct appeal, Knotts argued, in part, that he was denied due process
of law when Randall refused to testify because of the intimidating warnings and
threats of the trial court and prosecution. The Texas Fourteenth Court of
Appeals agreed with Knotts that a constitutional error resulted from the trial
court’s admonition and prosecution’s threat to Randall, but held that they were
harmless and thus affirmed his conviction on October 25, 2001. The Texas Court
of Criminal Appeals refused Knotts’s petition for discretionary review on
April 10, 2002. Knotts then filed a state application for a writ of habeas corpus
on June 30, 2003, but the Texas Court of Criminal Appeals denied it without a
written order, based on the findings of the trial court, on November 5, 2003.
      On November 13, 2003, Knotts, proceeding pro se, filed a federal petition
for a writ of habeas corpus, which presented six claims for review, including his
witness intimidation argument. On February 11, 2005, the district court,
however, granted the Director of the Texas Department of Criminal Justice’s
(“the Director”) motion for summary judgment, dismissed Knotts’s petition, and
denied Knotts’s request for a certificate of appealability (“COA”). On June 13,
2005, Knotts filed a motion for a COA in this Court, and on July 10, 2005, this
Court granted a COA on the following issue: “[W]hether the district court


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properly concluded that the state appellate court’s application of harmless error
analysis to Knotts’s witness intimidation claim did not constitute an
unreasonable application of clearly established federal law as determined by the
Supreme Court.”
                        II. STANDARD OF REVIEW
      On a federal habeas appeal, “we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (internal quotations omitted). “If
the issue is a mixed question of law and fact, such as the assessment of harmless
error, we review the district court’s determination de novo.” Id.
      Knotts filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) and thus the
deferential AEDPA standard of review applies to his claim. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997); Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.
2000). Under AEDPA, this Court evaluates the merits determination of the
state habeas court to determine if it either “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). The reference to “clearly established Federal law, as determined by
the Supreme Court of the United States” in § 2254(d)(1) “refers to the holdings,
as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant
state-court decision.” Yarborough v. Alvarado, 541 U.S. 652, 660–61 (2004)
(internal quotations omitted). Reviewing courts are to “look for the governing
legal principle or principles set forth by the Supreme Court” at that time. Id. at
661 (internal quotations omitted). A decision is contrary to established federal

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law when it “reaches a legal conclusion in direct conflict with a prior decision of
the Supreme Court or if it reaches a different conclusion than the Supreme
Court based on materially indistinguishable facts.” Miniel v. Cockrell, 339 F.3d
331, 337 (5th Cir. 2003). This Court notes that a state court’s decision will not
be disturbed where it is premised on an erroneous or incorrect, but not
unreasonable, application of federal law. Williams v. Taylor, 529 U.S. 362, 410
(2000).
                              III. DISCUSSION
      The Fifth, Sixth, and Fourteenth Amendments of the United States
Constitution concomitantly provide a criminal defendant with the constitutional
right to present a defense by compelling the attendance and presenting the
testimony of his own witnesses. Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987);
Washington v. Texas, 388 U.S. 14, 18–19 (1967). This right guarantees that a
defendant may “present witnesses to establish his defense without fear of
retaliation against the witness by the government” or any other improper
governmental interference. United States v. Bieganowski, 313 F.3d 264, 291 (5th
Cir. 2002) (internal quotations omitted). The Supreme Court has stated that
this particular “right is a fundamental element of due process of law.”
Washington, 388 U.S. at 19. The government, therefore, cannot substantially
interfere with a defense witness’s decision to testify without violating the
defendant’s due process rights. Webb v. Texas, 409 U.S. 95, 98 (1972) (per
curiam); Bieganowski, 313 F.3d at 291. However, in order to demonstrate such
a substantial interference and thus a due process violation, the defendant must
show a causal connection between the governmental action and the witness’s
decision not to testify. See Bieganowski, 313 F.3d at 291–92; United States v.
Thompson, 130 F.3d 676, 687 (5th Cir. 1997).
      In the instant case, the state appellate court applied Webb and held that
“the tenor and persistence of the warnings [given to Randall by the trial judge]

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were [constitutionally] improper.” Knotts, 61 S.W.3d at 117. The court also
found constitutional error in the substance of the trial court’s warnings, which
defined perjury as any statement that contradicted the government’s version of
events, and in the prosecution’s threat to revoke Randall’s parole if he testified.
Id. The court held that the intimidating statements made to Randall, Knotts’s
sole witness at trial, constituted a substantial interference with Knotts’s right
to present witnesses in his defense. Id. at 118. Nevertheless, the court found
this error to be harmless because “despite the coercive nature of the
admonitions, the witness persisted in waiving his Fifth Amendment privilege.
Only after the witness consulted with appointed counsel did he decide not to
testify.” Id. The state habeas court found no error with the state appellate
court’s application of harmless error in this instance.
       In his federal habeas petition, Knotts argues that the state court failed to
apply clearly established federal law as established by the Supreme Court when
it engaged in harmless error analysis for his witness intimidation claim. The
Director, on the other hand, argues that the state court’s application of harmless
error analysis was not an unreasonable application of clearly established federal
law.   The district court agreed with the Director, granted his motion for
summary judgment, and dismissed Knotts’s petition. This Court, however,
granted Knotts’s motion for a COA on one issue: “whether the district court
properly concluded that the state appellate court’s application of harmless error
analysis to Knotts’s witness intimidation claim did not constitute an
unreasonable application of clearly established federal law as determined by the
Supreme Court.”
       Based upon our review of the record and the applicable law, we conclude
that the district court erred when it held that the state appellate court
reasonably applied harmless error analysis to Knotts’s witness intimidation
claim. In our view, the state court’s analysis of harmless error was itself error.

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As previously stated, the state court found a due process violation, but held that
it was harmless because Randall refused to testify based on the advice of
independent counsel, not the trial court’s perjury admonitions or the
prosecution’s threats. Instead of considering whether the improper admonitions
and threats caused Randall not to testify in its harmless error analysis, the state
court should have considered whether the purported due process violation
(prevention of Randall’s testimony) influenced the jury’s verdict, as that is the
question posed by the Supreme Court. See, e.g., Fry v. Pliler, 127 S. Ct. 2321,
2328 (2007) (holding that “in § 2254 proceedings a court must assess the
prejudicial impact of constitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard”); Brecht v. Abrahamson, 507 U.S.
619, 623 (1993) (stating that the reviewing court must consider whether the
constitutional violation “had a substantial and injurious effect or influence in
determining the jury’s verdict” (internal quotations omitted)); United States v.
Weddell, 800 F.2d 1404, 1411 (5th Cir. 1986) (holding that the district court, in
a case involving governmental interference with a defense witness, must
evaluate “how [the witness]’s testimony would have affected the jury’s
assessment of the evidence” in considering harmless error). The state court,
however, did not do so and its consideration of causation as part of its harmless
error analysis was an unreasonable application of clearly established federal law
as determined by the Supreme Court.
      Notwithstanding, because the state court expressly found that
governmental action did not cause Randall not to testify, we conclude that
Knotts’s constitutional right to due process was not violated under Webb. The
Supreme Court has provided that “it surely is not a requirement that federal
courts actually defer to a state-court application of the federal law that is, in the
independent judgment of the federal court, in error.” Williams, 529 U.S. at 387.
Given the state court’s finding that Randall’s failure to testify was not the result

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of the trial court’s or prosecution’s actions, we are not precluded from holding
that the trial court and prosecution did not violate Knotts’s right to due process.
In Webb, the Supreme Court concluded “that the judge’s threatening remarks,
directed only at the single witness for the defense, effectively drove that witness
off the stand, and thus deprived the petitioner of due process . . . .” 409 U.S. at
98. The Supreme Court linked the due process violation to the fact that the
threatening remarks caused the witness not to testify. Following this holding,
this Court has repeatedly held that a defendant must demonstrate a causal
connection between the governmental action and the witness’s choice not to
testify. See Bieganowski, 313 F.3d at 291–92; Thompson, 130 F.3d at 687;
United States v. Viera, 839 F.2d 1113, 1115 (5th Cir. 1988). Consequently, the
state court should have simply held that there was no due process violation,
which would have obviated any harmless error analysis. See United States v.
Saunders, 943 F.2d 388, 393 (4th Cir. 1991) (“Because [the defendant] has not
demonstrated a due process violation, we need not reach the harmless error
analysis.”). In light of the state court’s finding that Randall’s failure to testify
was attributable solely to Randall’s legitimate invocation of his Fifth
Amendment right based on the advice of independent counsel––and not
governmental action––there can be no showing that Knotts’s constitutional right
to due process was actually violated. Therefore, the district court’s ultimate
denial of Knotts’s petition for habeas relief was proper.
                              IV. CONCLUSION
      The district court’s denial of Knotts’s petition for a writ of habeas corpus
is AFFIRMED.




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