                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                          REVISED OCTOBER 1, 2004
                      UNITED STATES COURT OF APPEALS              August 25, 2004
                               FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk
                               No. 01-40058


                            DELMA BANKS, JR.,

                                   Petitioner-Appellee-Cross-Appellant,

                                   versus

     DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                  CORRECTIONAL INSTITUTIONS DIVISION,

                                   Respondent-Appellant-Cross-Appellee.


             Appeals from the United States District Court
                   for the Eastern District of Texas
                             (5:96-CV-353)


        ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:

       In 1980, Delma Banks, Jr. was convicted in Texas state court

of capital murder and sentenced to death.       After pursuing his state

remedies, Banks filed for federal habeas relief in 1996 (before the

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA)).     Among the numerous issues raised, he claimed:         for two

of    the   State’s   witnesses,   the   prosecution   withheld    material

exculpatory impeachment evidence, in violation of Brady v. Maryland,

373 U.S. 83 (1963).       The district court denied relief for Banks’

conviction, but granted it for the sentence.           Because it had not
been properly pleaded, the district court refused to rule on Banks’

Brady claim based on the prosecution’s suppression of a pre-trial

interview transcript for witness Charles Cook; that transcript had

not been produced until the federal habeas proceeding and had been

admitted in evidence at the subsequent evidentiary hearing.

     On appeal, in a 78-page opinion addressing numerous issues, we

vacated the habeas relief for the sentence and denied a certificate

of appealability (COA) for the guilt phase concerning, inter alia:

whether Banks’ Cook-transcript Brady claim was properly pleaded; or

whether, in the alternative, it had been tried by consent of the

parties pursuant to Federal Rule of Civil Procedure 15(b) (amendment

of pleadings to conform to evidence “[w]hen issues not raised by the

pleadings are tried by express or implied consent of the parties”).

Banks v. Cockrell, No. 01-40058 (5th Cir. 2002)(unpublished).

     The Supreme Court held:      Banks was entitled to habeas relief

for the sentence; and, for the Cook-transcript Brady claim, a COA

“should have issued” “[a]t least as to the application of Rule

15(b)” to the district court evidentiary hearing.            Banks v. Dretke,

124 S. Ct. 1256, 1280 (2004).

     Because   the   Supreme   Court       granted   that   COA,   we   address:

whether Rule 15(b) applies to issues raised in a pre-AEDPA district

court evidentiary hearing; and, if it does, how the Rule applies

here.   Because the Rule applies and the district court has not




                                       2
addressed its application to the Cook-transcript Brady claim, we

REMAND to district court.

                                        I.

     The    Supreme    Court’s       remand     concerns     only   the    discrete

procedural issue of whether Rule 15(b) applies to claims tried by

consent in pre-AEDPA federal habeas proceedings. (The Court stated:

“Banks’    case    provides    no    occasion     to   consider     Rule    15(b)’s

application under the AEDPA regime”.             Id. at 1280 n.20.)        The facts

and procedural history for Banks’ underlying state conviction and

post-conviction proceedings have been exhaustively addressed both

by this court and the Supreme Court.              See Banks, 124 S. Ct. 1256;

Banks, No. 01-40058.          Accordingly, we recite only the facts and

fairly complex procedural history relevant to the Supreme Court’s

COA-grant at hand.

     In    1980,   Banks   was      convicted    for   the   murder   of    Richard

Whitehead in Texas state court and sentenced to death.                     Officers

investigating Richard Whitehead’s death had turned their attention

to Banks when they learned that Richard Whitehead had been seen with

him on 11 April 1980 near Nash, Texas; Richard Whitehead’s body was

found on 14 April.         On 23 April, after receiving a tip from a

confidential informant that Banks was traveling to Dallas, Texas,

to meet an individual and obtain a weapon, officers followed Banks

to Dallas, where he visited a residence.                   As Banks was leaving

Dallas, officers stopped his vehicle and found a handgun; officers


                                         3
then returned to the residence Banks had visited and interviewed

Charles Cook there.     While at the residence, officers recovered a

second handgun; Cook told the officers that Banks had left that

second handgun with him days earlier.       Tests identified the second

handgun as the Whitehead murder weapon.

      Prior to trial, Banks’ attorney sought information concerning

the identity of the informant who had told officers that Banks would

be traveling to Dallas, but the prosecution claimed the information

was privileged.   The prosecution eventually advised Banks’ counsel

that “[the State] will, without necessity of motions provide you

with all discovery to which you are entitled”.

      During the guilt phase of Banks’ trial, witnesses testified to

seeing Banks and Richard Whitehead together in a green Mustang on

11   April   (shortly   before   Richard   Whitehead’s   death).   Cook

testified: Banks arrived in Dallas in a green Mustang at about 8:15

a.m. on 12 April and stayed until 14 April; and, during this period,

Banks admitted to having “kill[ed] the white boy for the hell of it

and take[n] his car and come to Dallas”.     Banks, 124 S. Ct. at 1264.

Cook testified further that Banks then abandoned the Mustang and

left Dallas by bus.     On cross-examination, Cook stated three times

that he had not talked with anyone about his testimony.             (As

discussed infra, it was discovered in the course of this habeas

proceeding, however, that Cook had at least one “pretrial practice




                                    4
session”, at which officers and prosecutors coached him about his

trial testimony.)   Cook did not testify at the penalty phase.

     At the guilt phase, another of the State’s key witnesses,

Robert Farr, corroborated Cook’s account. Farr also testified

against Banks at the penalty phase.     (It was revealed during this

federal habeas proceeding that Farr had been the confidential

informant who told officers about Banks’ intention to go to Dallas

and that Farr had been paid for that information.)

     After pursuing available state remedies, Banks filed        the

instant federal habeas application in March 1996, asserting, inter

alia, a Brady claim based on the prosecution’s failure to produce

exculpatory evidence, including “information that pointed to another

suspect in the murder, information that linked prosecution star

witness Charles Cook to Robert Farr ... and information that would

have revealed Robert Farr as a police informant and Mr. Banks’

arrest as a ‘set-up’”.    (Emphasis added.)     Banks also claimed:

“prosecutors’ actions in concealing from the jury Cook’s enormous

incentive to testify in a manner favorable to the State require that

this Court reverse Mr. Banks’ conviction and sentence”; and “[t]he

prosecution’s failure to disclose that Cook stood to profit so

enormously by his testimony, narrowly evading a possible life term

in prison, requires the reversal of Mr. Banks’ conviction and

sentence”.   (Emphasis added.)       It appears that Cook’s alleged

“incentive to testify in a manner favorable to the prosecution” is

                                 5
the “deal”-with-the-prosecution referred to by the Supreme Court,

as quoted infra.   E.g., Banks, 124 S. Ct. at 1269.

     The magistrate judge ordered an evidentiary hearing to address,

inter alia, Banks’ claims that the State had withheld “crucial

exculpatory and impeaching evidence” concerning Cook and Farr.

Banks v. Johnson, No. 5:96-CV-353, at 1 (E.D. Texas 5 March 1999).

Prior to that hearing, the magistrate judge ordered the prosecution

to produce its files from Banks’ trial.   Discovered in those files

was a 74-page transcript of a pre-trial interview of Cook, conducted

by law enforcement officials and prosecutors in September 1980,

shortly before trial.

     The Cook transcript revealed

          the   State’s   representatives   had   closely
          rehearsed Cook’s testimony. In particular, the
          officials told Cook how to reconcile his
          testimony with affidavits to which he had
          earlier subscribed recounting Banks’s visit to
          Dallas.    (“Your [April 1980 statement is
          obviously screwed up.”); (“[T]he way this
          statement should read is that ... ”); (“[L]et
          me tell you how this is going to work.”);
          (“That’s not in your [earlier] statement”).
          Although the transcript did not bear on Banks’s
          claim that the prosecution had a deal with
          Cook, it provided compelling evidence that
          Cook’s testimony had been tutored by Banks’s
          prosecutors.

Banks, 124 S. Ct. at 1269 (citations omitted; emphasis added).

Again, the Supreme Court’s discussion of the alleged “deal” between

Cook and the prosecution appears to be in reference to Banks’ claim




                                 6
in his federal habeas petition that Cook had an incentive to testify

favorably for the prosecution.

       The     Cook-interview    transcript     was    listed    in   Banks’

identification of exhibits to be introduced at the district court

evidentiary hearing. At that hearing, Banks’ counsel introduced the

transcript      in   evidence   without    objection   and   questioned    the

assistant district attorney at the time of trial about whether, at

trial, the prosecution should have allowed Cook to testify that,

pre-trial, he had not talked to anyone about his testimony (the

transcript proved otherwise). Banks’ post-evidentiary-hearing brief

on an unrelated issue noted that discovery “dislodged” the Cook-

interview transcript and claimed the transcript demonstrated that

key trial testimony was coached and inaccurate.

       Banks’ proposed findings of fact and conclusions of law for the

magistrate judge (for the report and recommendation to the district

judge) referenced the Cook transcript several times.            Inter alia,

Banks:       asserted that, by suppressing the transcript, prosecutors

breached their promise of full disclosure; described the withholding

of the transcript; proposed the court find the transcript was in

possession of the prosecution pre-trial, but not produced to counsel

until habeas discovery in 1999; and suggested the court conclude

that   Banks’     trial   was   rendered   fundamentally     unfair   by   the

transcript’s suppression.




                                      7
     The magistrate judge recommended granting habeas relief on

Banks’ Brady claim concerning Farr, but denying relief on the Brady

claim concerning Cook’s alleged deal with the prosecution.      The

report and recommendation did not mention, however, the suppression

of the Cook-interview transcript.

     Banks objected to the report and recommendation because, inter

alia, it failed to mention the transcript’s non-production; because

of its suppression, Banks claimed he was entitled to relief from his

conviction.   The district court adopted the magistrate judge’s

recommendation and granted habeas relief for the penalty phase of

Banks’ trial, but denied relief for the guilt phase.   In doing so,

the district court overruled some of Banks’ objections to the

magistrate judge’s report and recommendation; however, the district

court did not address Banks’ objection to the magistrate judge’s

failure to address the suppression of the Cook-interview transcript.

     Banks moved to amend the judgment on the basis that the

suppression of the Cook-interview transcript was material, but the

issue had not been addressed by either the magistrate judge or

district judge.   In response to that motion, the State contended,

for the first time, that a Brady claim based on the suppression of

the Cook transcript was not before the court because it was not

properly pleaded under Rule 15(a)(amendments generally).      Banks

replied that the Brady claim in his petition, which alleged the

State withheld impeachment evidence regarding Cook, was sufficient

                                 8
to state such a claim and the Cook-interview transcript was merely

evidence supporting it.         (Banks’ petition had mentioned Cook’s

testimony    after   claiming   the   prosecution   failed   to   turn    over

material exculpatory evidence, in violation of Brady.)                   Banks

further contended that “the issue of whether trial prosecutors

suppressed material impeachment evidence concerning Charles Cook

[was] tried at the [district court] Evidentiary Hearing” (emphasis

added); but, he did not specifically rely on Rule 15(b)(amendment

of pleadings to conform to the evidence “[w]hen issues not raised

by the pleadings are tried by express or implied consent of the

parties”).     The district court denied the motion to amend the

judgment, holding: Banks raised the Cook-transcript Brady claim for

the first time in the findings of fact and conclusions of law

proposed for the magistrate judge; and this was not proper pleading

under Rules 15(a) or (d)(supplemental pleading).

     In his COA-request in district court, Banks claimed, inter

alia, that, pursuant to the governing standard for whether to grant

a COA, jurists of reason could debate whether the district court

correctly held the Cook-transcript Brady claim was not properly

before the district court.      Banks contended the claim was properly

pleaded; and, for the first time, he relied alternatively on Rule

15(b). The district court denied a COA on the Cook-transcript Brady

claim:   it ruled the claim was not properly raised in the first

instance; but, although it noted Banks’ reliance on Rule 15(b), it

                                      9
did not address whether the Cook-transcript Brady claim had been

tried by express or implied consent of the parties.

     The State appealed the habeas relief granted for the sentence;

Banks cross-appealed, requesting a COA on, inter alia: “Whether the

court below erred when it refused to review the merits of the due

process claim concerning the suppression of a lengthy pretrial

statement of the state’s key witness [Cook] because Banks did not

formally amend the petition after disclosure of the statement”.         In

his appellate brief, in support of that COA-request, Banks again

contended:   his Cook-transcript Brady claim was properly pleaded in

the first instance; and, in the alternative, a claim based on the

transcript was tried by consent of the parties and, therefore, was

properly pleaded under Rule 15(b). The State responded, inter alia,

that, “although there was a federal evidentiary hearing, there was

certainly    never   any   ‘trial’        regarding   the   instant   Brady

allegations”.    It also claimed, inter alia, that an evidentiary

hearing did not waive exhaustion or procedural default defenses.

     For this COA-request, we held the district court had correctly

determined that Banks did not properly plead the Cook-transcript

Brady claim because: after discovering the transcript, Banks should

have sought leave to amend his petition; and issues first raised in

objections to a magistrate judge’s report and recommendation are not

properly before the district court. Banks, No. 01-40058, at 52; see

United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).

                                     10
Concerning the alternative Rule 15(b) basis offered in support of

the COA-request, we stated: “Banks has not pointed to any authority

supporting his contention that, for Rule 15 purposes, an evidentiary

hearing equates with a trial”. Banks, No. 01-40058, at 52 (emphasis

added).   Accordingly, we denied a COA, holding it was not debatable

among jurists of reason whether the district court was correct in

denying Banks’ motion to amend the judgment, the denial of which is

reviewed for abuse of discretion.     Id.

     Before the Supreme Court, however, the State changed its

position concerning Rule 15(b) and “concede[d] ... that the question

whether Rule 15(b) extends to habeas proceedings is one ‘jurists of

reason would find ... debatable’”.    Banks, 124 S. Ct. at 1279.   The

Court reversed our COA-denial for the Cook-transcript Brady claim:

“We see no reason why an evidentiary hearing should not qualify [as

a trial for Rule 15(b) purposes] so long as the [State] gave ‘any

sort of consent’ and had a full and fair ‘opportunity to present

evidence bearing on th[e] claim’s resolution’”. Id. at 1280 (citing

Withrow v. Williams, 507 U.S. 680, 696 (1993)).       The Court held

that, “at least as to the application of Rule 15(b)”, a COA “should

have issued”.   Id.

                                II.

     The Supreme Court’s COA-holding prompts several procedural

questions:   the scope of its COA-grant; whether Rule 15(b) applies

to pre-AEDPA federal habeas evidentiary hearings; and, if it does,

                                 11
how it applies here.   To assist with resolution of these issues, we

obtained supplemental briefing from the parties.

                                  A.

     Because Banks’ federal petition was filed pre-AEDPA, that Act

is not applicable to his claims.   Id. at 1270 n.9 (citing Lindh v.

Murphy, 521 U.S. 320, 336-37 (1997)).   He was required, however, to

obtain a COA, pursuant to AEDPA, in order to appeal a denied claim.

See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997); 28 U.S.C.

§ 2253(c)(1)(A).

     Banks contends the Supreme Court’s COA-grant encompasses both

whether his Cook-transcript Brady claim was properly pleaded in the

first instance and whether, in the alternative, that claim was tried

by consent of the parties.    Although Banks has consistently urged

(district court, here, and Supreme Court) that his Cook-transcript

Brady claim was properly pleaded, the Supreme Court’s COA-grant does

not encompass that issue.    Concerning the COA, the Court’s opinion

almost exclusively addressed Rule 15(b)’s application to pre-AEDPA

federal habeas evidentiary hearings and, as quoted in part above,

held:

          To obtain a certificate of appealability, a
          prisoner must “demonstrat[e] that jurists of
          reason could disagree with the district court’s
          resolution of his constitutional claims or that
          jurists could conclude the issues presented are
          adequate to deserve encouragement to proceed
          further.” Miller-El v. Cockrell, 537 U.S. 322,
          327 (2003). At least as to the application of
          Rule 15(b), this case surely fits that

                                  12
          description. A certificate of appealability,
          therefore, should have issued.

Banks, 124 S. Ct. at 1280 (emphasis added).

     We denied a COA on whether Banks’ Cook-transcript Brady claim

was properly pleaded in the first instance; because the Supreme

Court did not hold to the contrary, our decision on that issue

remains the law of the case.     Accordingly, the remand from the

Supreme Court is limited to whether Rule 15(b) applies to pre-AEDPA

federal habeas evidentiary hearings and, if it does, its effect

here.

                                B.

     Rule 15 governs amendments to, and supplemental, pleadings.

Pursuant to the Supreme Court’s COA-grant, we decide de novo whether

Rule 15(b) applies to pre-AEDPA federal habeas proceedings.    See,

e.g., Mann v. Scott, 41 F.3d 968, 974 (5th Cir. 1992) (noting our

plenary review for questions of federal law in habeas proceedings).

     Concerning amendments to the pleadings to conform to the

evidence, Rule 15(b) states:

          When issues not raised by the pleadings are
          tried by express or implied consent of the
          parties, they shall be treated in all respects
          as if they had been raised in the pleadings.
          Such amendment of the pleadings as may be
          necessary to cause them to conform to the
          evidence and to raise these issues may be made
          upon motion of any party at any time, even
          after judgment; but failure so to amend does
          not affect the result of the trial of these
          issues.



                                13
FED. R. CIV. P. 15(b)(emphasis added).             As quoted above, that part of

the Supreme Court’s opinion granting the COA has provided guidance

on     whether   Rule      15(b)   applies    to     pre-AEDPA    federal   habeas

evidentiary hearings:         “We see no reason why an evidentiary hearing

should not [equate with a trial for Rule 15(b) purposes] so long as

the [State] gave ‘any sort of consent’ and had a full and fair

‘opportunity       to   present      evidence       bearing      on   the   claim’s

resolution’”.      Banks, 124 S. Ct. at 1280 (quoting Withrow, 507 U.S.

at 696).

       In so stating, the Court noted it had twice referenced Rule

15(b)’s application in federal habeas proceedings:                    Withrow, 507

U.S. at 696 (assuming, without analysis, that Rule 15(b) applied);

Harris v. Nelson, 394 U.S. 286, 294 n.5 (1969)(noting use of Rule

15(b) in habeas proceedings is noncontroversial). The Court doubted

that     Rule    15(b)’s     application     “would     undermine     the   State’s

exhaustion and procedural default defenses” under the pre-AEDPA

scheme.     Banks, 124 S. Ct. at 1280.             (As partly discussed above,

although our prior opinion noted that the State raised these

defenses against application of Rule 15(b), our COA-denial did not

require addressing that point.          See Banks, No. 01-40058, at 52.) I

addition, the State concedes that, although the Supreme Court has

not expressly held Rule 15(b) applies to pre-AEDPA federal habeas

evidentiary hearings, our court has applied that Rule in such

proceedings.      For example, Mosley v. Dutton, 367 F.2d 913, 916 (5th

                                        14
Cir. 1966), considered issues that had been tried by the parties’

consent in a habeas proceeding as if raised in the pleadings

(citing Rule 15(b)).      See also Streeter v. Hopper, 618 F.2d 1178,

1180    (5th   Cir.   1980)(reviewing   grant   of   habeas    relief   and

considering one of the issues litigated by parties’ consent) (citing

Rule 15(b)).    We have also noted the potential application of Rule

15(b) to pre-AEDPA habeas proceedings in instances where the Rule

was ultimately not invoked to amend the petition.             See James v.

Whitley, 926 F.2d 1433, 1435 n.3 (5th Cir. 1991)(noting claims may

have been tried by consent of parties at federal habeas evidentiary

hearing pursuant to Rule 15(b), but not reaching issue); Robinson

v. Wade, 686 F.2d 298, 304 n.11 (5th Cir. 1982)(holding “Federal

Rules of Civil Procedure govern amendments of petitions for habeas

corpus”, and noting certain exceptions, including Rule 15(b), to the

requirement that claims in habeas proceedings can be added only by

amendment).

       In Banks’ pre-AEDPA federal habeas evidentiary hearing, the

Cook-transcript was in evidence; it had not been produced by the

State until during this habeas proceeding. Moreover, the State does

not claim an exhaustion or procedural bar defense to the Cook-

transcript Brady claim.      Accordingly, on this record, Rule 15(b)

applies to the Cook-transcript Brady claim as addressed in Banks’

evidentiary hearing.

                                   C.

                                   15
     The State contends that, although Rule 15(b) may generally

apply to issues tried by consent in a habeas evidentiary hearing,

it does not apply here because, in district court, Banks contended

only that the Cook-transcript Brady claim was tried by express

consent of the parties and did not rely on implied consent.       In

support, the State cites Banks’ COA-request in district court (the

first time Banks cited Rule 15(b)); that request quoted the text of

Rule 15(b) regarding trial by express or implied consent and then

stated: “This issue of the state’s suppression of impeachment

material concerning Charles Cook was ‘expressly tried’at the ...

evidentiary hearing”.    (Emphasis added.)       That COA-request in

district court also notes:    the Cook transcript was admitted in

evidence without objection; and Banks’ counsel questioned the

prosecutor and other witnesses extensively about its content.

     Banks’ COA-request to this court claimed:    “The district court

erred in failing to adjudicate [Banks’ claim that] the prosecution’s

suppression of Charles Cook’s lengthy pretrial statement withheld

material impeachment evidence and violated due process”.         For

support, Banks cited, inter alia, Rule 15(b) and contended the State

was on notice he was asserting a Cook-transcript Brady claim.

                                1.

     The State contends that, because Banks did not explicitly raise

“implied consent” in district court, the implied consent issue at

hand cannot be considered for the first time on appeal. See Johnson


                                16
v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999)(holding contention not

raised by habeas petitioner in district court cannot be considered

for the first time on appeal from that court’s denial of habeas

relief); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997)(“A

district court must deny the COA before a petitioner can request one

from this court.”)       We disagree that Banks’ COA-request in district

court relied exclusively on the express consent portion of Rule

15(b).

      First, Banks quoted the language of Rule 15(b) which addresses

both express and implied consent.            Second, although the COA-request

in district court claimed the issue of the State’s suppression of

the Cook transcript was “expressly tried”, we do not understand that

to mean Banks was referring to express consent.                 Banks did not

contend the State had expressly consented to trial of the Cook-

transcript Brady claim; instead, he stated the claim had been

“expressly tried”.       At issue is whether the trial of the claim was

based on the State’s implied consent.           Moreover, Banks’ reliance on

the admission of the transcript in evidence without objection and

the   questioning   of    the   trial   prosecutor     about   the   transcript

supports implied, rather         than express, consent.          Accordingly,

because Banks relied in district court on the Cook-transcript Brady

claim’s being tried by implied consent, we consider this issue. (In

any event, even if, arguendo, Banks had not relied on implied



                                        17
consent in district court, the Supreme Court’s COA-grant addressed

implied consent and cured Banks’ alleged default.)

                                2.

     We decline, however, to decide in the first instance whether

that Brady claim was tried by implied consent of the parties.   The

State concedes that, if the issue of implied consent is properly

before us, we should remand because the district court never

addressed it.

     Although on 6 June 2004 we denied Banks’ motion to remand to

district court for factfinding on this issue, we did so in order to

obtain supplemental briefing to consider further this and other

questions relevant to the Supreme Court’s remand.    In the light of

that briefing and related factors commending the district court’s

considering the consent question in the first instance, we conclude

that remand to the district court is required in order for it   (1)

to determine whether Banks’ Cook-transcript Brady claim was tried

by implied consent of the parties; and (2) if it was, to decide that

claim.

                               III.

     For the foregoing reasons, this matter is REMANDED to district

court for further proceedings consistent with this opinion.

                                                        REMANDED




                                18
