                      REVISED, June 24, 1998

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 96-31049


                      KENNETH WAYNE MAGOUIRK,

                                            Petitioner - Appellant,


                                VERSUS


     MICHAEL PHILLIPS, Warden Winn Correctional Center; and
     RICHARD P. IEYOUB, Attorney General, State of Louisiana,

                                            Respondents - Appellees.




          Appeal from the United States District Court
              For the Western District of Louisiana
                            June 18, 1998


Before WISDOM, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

     Kenneth Wayne Magouirk appeals from the district court’s order

dismissing his 28 U.S.C. § 2254 petition for habeas corpus relief.

Magouirk raised five claims for federal review.        The district

court, acting on the recommendation of a Magistrate Judge who

raised Magouirk’s procedural default of three claims sua sponte,

applied Magouirk’s default to bar federal litigation of those three

claims.   Magouirk maintains that the Magistrate Judge and the

federal district court were without authority to raise procedural

default sua sponte.      We hold that a federal district court has
discretion to raise and apply a habeas petitioner’s procedural

default sua sponte.     We therefore affirm the district court’s

holding   that   Magouirk’s    procedural    default   barred   federal

litigation of three of his five claims.

     Magouirk also appeals the district court’s determination that

he is not entitled to relief with respect to his two remaining

claims.   Finding no basis for meaningful review of Magouirk’s

remaining claims in the record, we vacate the district court’s

dismissal of those claims and remand to the district court with

instructions to supplement the record, and if necessary, to conduct

an evidentiary hearing on the merits of Magouirk’s two remaining

claims. Accordingly, the judgment is affirmed in part, reversed in

part, and remanded with instructions for further proceedings.



                               BACKGROUND

                                   I.
                              Introduction

     Louisiana convicted Magouirk of manslaughter for the death of

Katherine Thomas in 1987.       Thomas was abducted from her mobile

home, killed and thrown into the Ouachita River.         See generally

State v. Magouirk, 539 So. 2d 50, 52-54 (La. Ct. App. 1989)

(describing offense), writ denied, 566 So. 2d 983 (La. 1990).

Police attention was drawn to Magouirk after they received a tip

that Magouirk had a fetish for women’s underwear, and that Magouirk

had some of Thomas’ underwear in his possession.       Id. at 53.   Near




                                   2
the spot of Magouirk’s arrest, police found a bag of women’s

clothing, which included items belonging to Thomas and at least two

other women, Karen Cloyd and Kaye Rothwell.       Id. at 54, 59-60.


                                  II.
                        “Other Crimes” Evidence

      Prior to trial, the state provided notice that it wanted to

introduce evidence relating to five other burglaries in which

women’s underwear was stolen.       Specifically, the state wanted to

use evidence of an earlier burglary from Thomas, and similar

burglaries from four other women.       See id. at 58.   The trial court

excluded evidence of the prior Thomas burglary, and two other

burglaries, but allowed evidence relating to burglaries of Karen

Cloyd and Kaye Rothwell.    Id.   Evidence from the Cloyd and Rothwell

burglaries was allowed because Cloyd’s clothing and Rothwell’s

clothing were found in the bag with Thomas’ clothing.        Id. at 58-

60.   Thus, evidence relating to the Cloyd and Rothwell burglaries

was demonstrably related to the Thomas homicide, and tended to

establish that Thomas was killed in the course of one of Magouirk’s

signature burglaries.     Id.

      Both Magouirk and the state challenged the trial court’s

evidentiary ruling, seeking discretionary writs for interlocutory

review. Id. at 58 n.1.          Those writs were denied by both the

Louisiana Court of Appeal and the Louisiana Supreme Court.         Id.;

see also State v. Magouirk, 503 So. 2d 481 (La. 1987) (denying

state’s application for writ of certiorari); State v. Magouirk, 503




                                    3
So. 2d 476 (La. 1987) (denying Magouirk’s application for writ of

certiorari).



                                    III.
                           Magouirk’s Confession

     In July 1986, about one year before trial, Magouirk allegedly

confessed to his jailhouse roommate, Alfred Durbyn, that he was

responsible for Thomas’ murder.        Durbyn reported the confession to

his lawyer, who arranged for Durbyn to make a recorded statement

for the Sheriff.       Durbyn’s statement to the Sheriff recounts

Magouirk’s jailhouse confession; says that Magouirk told Durbyn

that Magouirk had taken Thomas from her home, forced her to perform

oral sex in his truck and then “wasted her,” and says that Magouirk

threatened to kill him (Durbyn) if he (Durbyn) revealed Magouirk’s

confession.      In   August   1986,       Magouirk   filed   a    “Motion    for

Preliminary Examination for the Perpetuation of Testimony and for

the Fixing of Bail.”      Magouirk, 539 So. 2d at 54; see also LA. CODE

CRIM. P. art. 296.        In September 1986, the state disclosed the

content   of   Durbyn’s    recorded    statement      to   Magouirk’s     defense

counsel in answers to discovery.             Shortly thereafter, Magouirk

moved to suppress Durbyn’s inculpatory statement.                 Magouirk, 539

So. 2d at 54.

     In October 1986, and while Magouirk’s motion to suppress

Durbyn’s statement was pending, the trial court held a hearing on

Magouirk’s motion to perpetuate testimony.             Id. at 54.     The state

did not call any witnesses.      Magouirk called Durbyn, who repeated

the details of Magouirk’s confession for the record.                Id.     After

                                       4
eliciting   the        damaging    testimony,      Magouirk’s      counsel       claimed

surprise and requested permission to treat Durbyn as a hostile

witness.    Id.    The state argued there was no surprise because the

content of Durbyn’s testimony had been disclosed in discovery. The

trial   court     expressed       its   dismay    that    Magouirk      was     claiming

surprise, and denied Magouirk’s request to treat his own witness as

hostile.    Id. at 54-55.

      At a subsequent hearing on Magouirk’s motion to suppress

Durbyn’s testimony, Durbyn’s lawyer testified that Durbyn’s plea

bargain was not affected by his testimony against Magouirk. Id. at

55. Magouirk’s counsel again attempted to call Durbyn as a hostile

witness, and that request was denied. Id. Magouirk’s counsel then

called Durbyn on direct examination, at which point Durbyn stated

the   details     of    Magouirk’s      confession       for   a   third    time,     and

Magouirk’s motion to suppress Durbyn’s testimony was denied.                          Id.


                                      IV.
                       Durbyn’s Aborted Trial Testimony

      Trial was scheduled to begin on June 15, 1987.                 In early June,

Ouachita Parish jail officials reported that Magouirk and Durbyn

had crossed paths in the jail and engaged in a brief physical

altercation.            The   assistant        district      attorney      prosecuting

Magouirk’s case was informed of this attack shortly thereafter by

the investigating         jail    officer,      who   also     happened    to    be   the

prosecuting attorney’s wife. Thereafter, and shortly before trial,

the prosecuting attorney reinterviewed Durbyn about his potential

trial testimony against Magouirk.                 Durbyn told the prosecuting


                                           5
attorney and the district attorney’s investigator about the fight

with Magouirk.

     Trial began as scheduled on June 15, 1987.                    While Durbyn was

being transferred       from      the    jail    to    testify,    Durbyn   told    the

district   attorney’s     investigator          that    he   had   decided    not    to

testify.         When the state called Durbyn, Durbyn took the stand

and testified    that    his      earlier       statements    at    the   hearing    to

perpetuate testimony were true.                  Id.     Durbyn then refused to

testify further, stating that he wanted to exercise his Fifth

Amendment rights.      Id.    Outside the presence of the jury, the trial

court warned Durbyn that the Fifth Amendment did not justify his

refusal to testify against Magouirk.              Id. When Durbyn continued to

refuse to testify, the trial court held Durbyn in contempt.                         Id.

     The state moved to have Durbyn declared “unavailable,” so that

Durbyn’s   testimony         at    the     perpetuation       hearing       could    be

introduced.1 Magouirk objected, arguing that he had no opportunity

to cross-examine Durbyn in the earlier hearing.                     Id.     The trial

court rejected Magouirk’s argument and allowed Durbyn’s recorded

testimony from the preliminary hearing to be played for the jury in

its entirety.    Id.    Later in the trial, Magouirk attempted to call

Durbyn as a hostile witness.             Id.    The trial court refused to have




     1
          Louisiana law provides that testimony given at a
preliminary examination is admissible for any purpose at a
subsequent proceeding in the case, if (1) the court finds that the
witness is unavailable, and (2) the witness’ unavailability was not
procured by the party offering the testimony. LA. CODE CRIM. P. art.
295(B).

                                           6
Durbyn brought before the jury again.             When Durbyn was examined

outside the presence of the jury, he stated that he would “like to

stay out of this altogether.”        Id.

      Magouirk was charged with second degree murder, but the jury

was   also    instructed     on   lesser    included     offenses.     After

deliberation, the jury returned a guilty verdict on the lesser

included responsive verdict of manslaughter.            Id. at 52.


                                 V.
      Magouirk’s First Appeal to the Louisiana Court of Appeal

      Magouirk appealed, raising a number of issues, including (1)

that he was denied the opportunity to cross-examine Durbyn, in

violation of his Sixth Amendment confrontation right; (2) that the

trial court erroneously admitted evidence of the Cloyd and Rothwell

burglaries, as well as evidence of the prior Thomas burglary that

had been excluded by court order; and (3) that the evidence against

him was insufficient to support his conviction. In September 1988,

the Louisiana Court of Appeal issued an opinion reversing and

remanding the matter for a new trial.            Id. at 54-57.   The Court of

Appeal found that the admission of Durbyn’s perpetuated testimony

denied Magouirk his constitutional right to confront Durbyn at

trial, and that the limited cross-examination afforded in the

preliminary examination hearing was insufficient to satisfy his

Sixth Amendment confrontation right.              Id.   The Court of Appeal

rejected Magouirk’s argument that the “other crimes” evidence

relating     to   similar   burglaries     was   improperly   admitted,   and




                                      7
declined    to   consider,   as   unnecessary,   his   challenge   to   the

sufficiency of the evidence.       Id. at 58-61.

     In October 1988, after the Court of Appeal entered its initial

decision, the state filed a petition for rehearing, arguing that

Magouirk waived his confrontation right by engaging in misconduct

that caused Durbyn to be unavailable for cross-examination at

trial.     See United States v. Thevis, 665 F.2d 616, 630 (5th Cir.

Unit B 1982) (“We conclude that a defendant who causes a witness to

be unavailable for trial for the purpose of preventing that witness

from testifying also waives his right to confrontation.”); see also

United States v. White, 116 F.3d 903, 911 (D.C. Cir.), cert.

denied, 118 S. Ct. 390 (1997) (“We have no hesitation in finding,

in league with all circuits to have considered the matter, that a

defendant who wrongfully procures the absence of a witness or

potential witness may not assert confrontation rights as to that

witness.”).      The state’s petition for rehearing simply recounted

facts already known to the state at trial.       The state did not offer

any newly discovered facts or evidence to explain its belated

decision to assert Magouirk’s misconduct as a waiver of Magouirk’s

confrontation rights.

     Magouirk responded that, although all of the facts comprising

Magouirk’s alleged misconduct were known to the state when Durbyn

was called to testify, the state had never before raised the

argument that Magouirk’s alleged misconduct was sufficient to waive

Magouirk’s Sixth Amendment right to confront Durbyn at trial.

Therefore, Magouirk maintained that the state had waived its right


                                     8
to argue that Magouirk had waived his right to confront Durbyn at

trial.

     On rehearing, the Louisiana Court of Appeal changed course,

remanding the case to the trial court for consideration of whether

(1) the state waived its right to argue that Magouirk waived his

confrontation right by misconduct; and (2) whether Magouirk had in

fact waived his confrontation right by misconduct.         Magouirk, 539

So. 2d at 64-66.    The Court of Appeal responded to Magouirk’s

waiver argument and limited the scope of proceedings on remand,

however, by excluding reliance upon facts or evidence that the

state either knew or should have known about at the time Durbyn

refused to testify at trial.    The Court of Appeal also examined the

standard of proof by which the state would be forced to prove

Magouirk’s waiver by misconduct.        After considering conflicting

precedent from the federal circuits, the Court of Appeal embraced

the approach employed by the Second Circuit in United States v.

Mastrangelo, 693 F.2d 269 (2d Cir. 1982).       Mastrangelo permits a

finding of waiver with respect to a witness’ prior statements when

the state proves “by a preponderance of the evidence” that the

defendant’s   misconduct       caused    the    witness’     subsequent

unavailability for cross-examination at trial.       Mastrangelo, 693

F.2d at 273-74.   The Louisiana Court of Appeal expressly rejected

the more stringent “clear and convincing evidence” standard used by

this Circuit to establish waiver in United States v. Thevis, 665

F.2d 616 (5th Cir. 1982).




                                   9
                                 VI.
                        Proceedings on Remand

     On remand, the trial court received evidence to determine why

Durbyn refused to testify and whether the state knew or should have

known why Durbyn refused to testify before the time the state

raised   Magouirk’s   waiver   by   misconduct   in   its   petition   for

rehearing before the Louisiana Court of Appeal.       Durbyn was called

to testify on remand, but he refused again and the trial court held

Durbyn in contempt a second time.

     On the issue of the state’s waiver, the trial court received

testimony from the assistant district attorney who prosecuted

Magouirk’s case and the district attorney’s investigator. Although

both of these interested witnesses knew the details of Magouirk’s

alleged misconduct, including the threats and the fistfight, the

trial court credited their testimony that they had no reason to

believe that Magouirk’s misconduct could have caused Durbyn’s

refusal to testify until Durbyn was reinterviewed in December 1988,

which was after Magouirk’s trial and after the Louisiana Court of

Appeal issued an opinion granting Magouirk relief. The trial court

therefore concluded that the state had not waived its right to

argue that Magouirk waived his confrontation right by misconduct.

     On the issue of Magouirk’s waiver, the trial court received

the same evidence of Magouirk’s misconduct that was known to the

state at trial, and found by a preponderance of the evidence that

Magouirk’s misconduct caused Durbyn’s unavailability at trial. The

trial court therefore held that Magouirk had waived his right to


                                    10
confront Durbyn at trial, and Magouirk’s request for relief from

his conviction was denied.


                                VII.
     Magouirk’s Second Appeal to the Louisiana Court of Appeal

       Magouirk appealed, and the Louisiana Court of Appeal affirmed.

State v. Magouirk, 561 So. 2d 801 (La. Ct. App.), writ denied, 566

So. 2d 983 (La. 1990).              In addition to reviewing Magouirk’s

contention that the district court erred on remand, the Court of

Appeal reviewed and rejected the sufficiency argument raised in

Magouirk’s first appeal.           See Magouirk, 561 So. 2d at 807 (“every

reasonable hypothesis of innocence was excluded”).                   Magouirk’s

application to the Louisiana Supreme Court for writ of certiorari,

which raised the issue of the state’s waiver and challenged the

finding of his own waiver, was denied without opinion.                   State v.

Magouirk, 566 So. 2d 983 (La. 1990).


                                VIII.
        Magouirk’s State Petition for Post-Conviction Relief

       Magouirk next filed a petition for post-conviction relief

arguing, inter alia, that (1) he was denied the opportunity to test

Durbyn’s testimony with cross-examination; (2) that the state

waived its right to argue Magouirk waived his confrontation right;

(3) that counsel was ineffective for calling Durbyn and for failing

to   lodge     a    contemporaneous    objection    to    the   “other    crimes”

evidence; and (4) that the evidence was insufficient to convict

him.     The       trial   court   denied    Magouirk’s   petition   for    post-




                                        11
conviction relief without opinion.          Magouirk did not appeal the

trial court’s disposition.


                                     IX.
                      Magouirk’s Federal Habeas Action

       Magouirk filed this, his first federal habeas corpus action,

in    October    1995.   Magouirk’s   petition   for   relief   raised   the

following claims:

       (1)   that Magouirk’s conviction was secured in
             violation of the Due Process Clause because
             the Louisiana Court of Appeal allowed the
             state to introduce new evidence on appeal
             concerning Durbyn’s refusal to testify;

       (2)   that Magouirk’s conviction was secured in
             violation of the Sixth Amendment to the
             Constitution because the trial court made
             clearly erroneous findings regarding (a) the
             state’s right to argue on remand that Magouirk
             waived his confrontation right and (b)
             Magouirk’s waiver of his confrontation right,
             and because the trial court used the wrong
             standard of proof for establishing Magouirk’s
             waiver;

       (3)   that Magouirk’s conviction was secured in
             violation of the Due Process Clause because
             the state was allowed to introduce evidence of
             “other crimes”;

       (4)   that Magouirk’s conviction was secured in
             violation of the Due Process Clause because
             there was insufficient evidence to support his
             conviction for manslaughter; and

       (5)   that Magouirk’s conviction was secured in
             violation of the Sixth Amendment right to
             effective   assistance   of  counsel   because
             counsel   failed   to   request   a   limiting
             instruction with respect to the “other crimes”
             evidence.

       The district court referred the matter to a Magistrate Judge,

who    entered    a   Memorandum   Order   requiring   Magouirk   to     file


                                      12
documentary proof that state remedies had been exhausted. Magouirk

responded    by   filing   copies   of     selected    briefs    filed    in   and

decisions rendered by the Louisiana state courts.               Thereafter, the

Magistrate Judge entered a second Memorandum Order.                   That order

required the state to file an answer, a brief in support of its

answer, and a “certified copy of the state court record,” including

all documents filed on direct appeal or as part of any application

for post-conviction relief, transcripts of all proceedings held in

the state court, and copies of or citations to all state court

decisions arising out of Magouirk’s conviction.

     The state never complied with this court order.                 Instead, the

state filed a Motion to Dismiss, arguing that Magouirk had failed

to exhaust his state remedies because the five listed claims were

never presented to the state’s highest court.

     Magouirk filed a response, arguing that his claims were

technically exhausted because further state relief was time barred.

See Coleman, 111 S. Ct. 2546, 2555 (1986) (claims are “technically”

exhausted when state relief is no longer available, without regard

to whether the claims were actually exhausted by presentation to

the applicable state courts).        Magouirk also pointed out that the

state had not made any effort to comply with the court’s Memorandum

Order requiring the state to file an answer and a certified record

of proceedings in the state court.

     Relying upon the selective state court pleadings and decisions

filed   by   Magouirk,     the   Magistrate    Judge    filed    a    Report   and

Recommendation that Magouirk’s petition for relief be denied. With


                                      13
respect to claims 1, 3 and 5, the Magistrate Judge accepted

Magouirk’s argument that his claims were technically exhausted, but

raised sua sponte the premise that those claims were nonetheless

procedurally defaulted.        With respect to claim 2, the Magistrate

Judge concluded that the trial court’s findings on the issue of

waiver    were    supported    by    the       evidence,   and     entitled   to   a

presumption of correctness.               The Magistrate Judge reached that

conclusion without any state court record of the proceedings on

remand.    With respect to claim 4, the Magistrate Judge found that

the evidence offered at Magouirk’s trial was sufficient to support

Magouirk’s       conviction.        The    Magistrate      Judge    reached   that

conclusion without any state court record of Magouirk’s trial.

Thus, the Magistrate Judge recommended that Magouirk’s petition be

denied as to all claims, and that the cause be dismissed.

     Magouirk filed timely objections, challenging the Magistrate

Judge’s sua sponte invocation of the procedural default doctrine

with respect to claims 1, 3 and 5, and his proposed disposition of

claims 2 and 4 on the merits.              The district court held that the

Magistrate Judge had the power to raise procedural default sua

sponte, citing Graham v. Johnson, 94 F.3d 958 (5th Cir. 1996)

(permitting the exhaustion doctrine to be raised sua sponte).                   The

district court also held that the Louisiana Court of Appeal was

free to adopt the Second Circuit’s “preponderance of the evidence”

standard for determining Magouirk’s waiver, rather than the “clear

and convincing evidence” standard used by our Court in United

States v. Thevis.        In all other respects, the district court


                                          14
adopted the Report and Recommendation issued by the Magistrate

Judge, and entered judgment dismissing Magouirk’s claims.


                                 X.
                  Magouirk’s Appeal to This Court

     Magouirk   filed   a   timely   notice     of   appeal       and    a    motion

requesting a certificate of appealability (COA) from the district

court, which was denied. Magouirk appealed, and this Court granted

Magouirk a COA limited to two issues: (1) whether the Magistrate

Judge properly raised procedural default sua sponte, and (2)

whether Magouirk’s objections to the Magistrate Judge’s report

provided an adequate opportunity for him to demonstrate cause and

prejudice or a fundamental miscarriage of justice, either of which

could potentially excuse his procedural default.

     On appeal, Magouirk challenges the Magistrate Judge’s sua

sponte   invocation   and   application    of    the       procedural        default

doctrine to bar claims 1, 3 and 5.         Magouirk also challenges the

district   court’s    disposition     of   claim       2     on    the       merits.

Specifically, Magouirk argues (1) that the state trial court used

the wrong evidentiary standard when deciding on remand that he

waived his Sixth Amendment right to confront Durbyn, and (2) that

the trial court’s fact findings on remand were erroneous. Although

Magouirk does not specifically challenge the district court’s

disposition of claim 4, the sufficiency claim, Magouirk does argue

that his claims should not have been dismissed in the absence of a

complete state record.




                                     15
                                DISCUSSION

                                     I.
                              Scope of Review

     Prior to Lindh v. Murphy, 117 S. Ct. 2059 (1997), and at the

time Magouirk’s § 2254 action became ripe for appeal, our Circuit

applied the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, to habeas corpus

claims that were filed before, but pending on, the April 24, 1996

effective date of AEDPA.       E.g., Drinkard v. Johnson, 97 F.3d 751

(5th Cir. 1996), cert. denied, 117 S. Ct. 1114 (1997). Magouirk’s

§ 2254 action was filed before, and was pending on, AEDPA’s April

1996 effective date.     Thus, when Magouirk sought permission to

appeal, this Court considered that request under AEDPA.

     AEDPA requires a habeas petitioner to obtain a certificate of

appealability (COA) in order to appeal.         28 U.S.C. § 2253(c).    A

COA is granted when the petitioner is able to make “a substantial

showing   of   the   denial    of   a    constitutional   right.”      Id.

§ 2253(c)(2).    When granting a COA, the court is required to

specify which issues are suitable for consideration on appeal. Id.

§ 2253(c)(3).    In accordance with AEDPA standards, this Court

granted Magouirk’s request for a COA, but limited review to the

issue of whether the Magistrate Judge and the district court

properly relied upon the procedural default doctrine to bar review

of claims 1, 3 and 5.          The Court denied review of claim 2,

Magouirk’s challenge to the evidentiary standard used and the fact




                                    16
findings made with respect to waiver on remand to the state trial

court.

     In Lindh, the Supreme Court clarified that AEDPA applies only

to those habeas corpus claims filed on or after AEDPA’s effective

date.    Lindh thus supplanted our pre-Lindh precedent like Drinkard

that applied AEDPA to cases that were pending on the effective date

of the Act.   In light of Lindh, it is now apparent that Magouirk’s

claims are governed by pre-AEDPA law.

     Under pre-AEDPA law, a habeas corpus petitioner was required

to obtain a certificate of probable cause (CPC) to appeal.    Lucas

v. Johnson, 132 F.3d 1069, 1073 (5th Cir. 1998).   A CPC was granted

when the petitioner was able to make “a substantial showing of the

denial of a federal right.”     Lucas, 132 F.3d at 1073; Rector v.

Johnson, 120 F.3d 551, 557 (5th Cir. 1997), cert. denied, 118 S.

Ct. 1061 (1998).   When issuing a CPC, the court was not required to

specify the issues to be considered on appeal, and a request for

review of all issues was sufficient to bring all of petitioner’s

claims before the Court for review.     McBride v. Johnson, 118 F.3d

432, 436 (5th Cir. 1997).

     Magouirk’s case is not the first to fall into the gap between

our Circuit’s precedent applying AEDPA to cases pending in April

1996, and the Supreme Court’s disposition in Lindh.    E.g., Rector,

120 F.3d at 557; Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th

Cir.), cert. denied, 118 S. Ct. 576 (1997); Tucker v. Johnson, 115

F.3d 276, 276 (5th Cir.), cert. denied, 118 S. Ct. 605 (1997).

Because the standards for issuing a pre-AEDPA CPC were the same as


                                  17
those for issuing a post-AEDPA COA, we have generally allowed our

grant of a post-AEDPA COA to satisfy the requirement for a pre-

AEDPA CPC in these cases.           Rector, 120 F.3d at 557 n.4; Hallmark,

118 F.3d at 1077; Tucker, 115 F.3d at 276.           We have also held that,

in cases in which Lindh compels us to "construe our previous grant

of a COA as a grant of a CPC," McBride, 118 F.3d at 436, such a

grant "on a particular issue nonetheless brings up all the issues

raised    in   a   petitioner’s      federal   habeas   petition,"   id.      We

therefore construe our earlier grant of a limited COA in this case

to be a grant of an unlimited CPC.           This Court will review not only

the propriety of the district court’s holding that claims 1, 3 and

5 were procedurally defaulted, but also that court’s disposition of

Magouirk’s       remaining    claims    on   the   merits.    Moreover,       all

references to § 2254 in this opinion are limited to the substance

of that provision as it existed prior to the amendment of that

section by AEDPA.


                                 II.
         Federal Court Authority To Raise Procedural Default

A.   The District Court’s Authority

     Magouirk argues that the Magistrate Judge lacked authority to

raise the procedural default defense sua sponte because procedural

default    (1)     is   not   a   jurisdictional   defect,   and   (2)   is    an

affirmative defense that must be specifically pleaded and can be

waived.

     Magouirk is correct that, in the habeas context, the existence

of a procedural default does not destroy the jurisdiction of the


                                        18
federal   court.   Trest   v.   Cain,   118   S.   Ct.   478,   480   (1997)

(procedural default “is not a jurisdictional matter”). Magouirk is

also correct that procedural default is an affirmative defense that

may be waived if the state fails to raise the defense in its

pleadings.   E.g., Cupit v. Whitely, 28 F.3d 532, 535-36 (5th Cir.

1994); Mayo v. Lynaugh, 893 F.2d 683, 686 (5th Cir. 1990).              But

those axioms do not require the conclusion that a federal court may

not notice a procedural default on its own motion.

     Consider, for example, the analogous doctrine requiring that

a habeas corpus petitioner exhaust state remedies.              Failure to

exhaust is not a jurisdictional defect.        Granberry v. Greer, 107

S. Ct. 1671, 1673-74 (1987); Graham v. Johnson, 94 F.3d 958, 970

(5th Cir. 1996). Failure to exhaust is an affirmative defense that

may be waived by the state’s failure to rely upon the doctrine.

Granberry, 107 S. Ct. at 1674.     And yet there is no doubt that a

federal court may raise sua sponte a petitioner’s failure to

exhaust state law remedies and apply that doctrine to bar federal

litigation of petitioner’s claims until exhaustion is complete.

Id. at 1674-75; Graham, 94 F.3d at 969-70.         Similarly, the Court

may refuse to honor the state’s waiver of an exhaustion defense,

when comity or judicial efficiency make it appropriate for the

Court to insist upon complete exhaustion. Granberry, 107 S. Ct. at

1674; Graham, 94 F.3d at 970.

     The Supreme Court has held that the comity and federalism

concerns that underlie the exhaustion requirement are equally

applicable when claims have been procedurally defaulted.                See


                                  19
Coleman, 111 S. Ct. at 2554-55.              Some of our sister circuits have

expressly    relied    upon     the    similarity     between      exhaustion      and

procedural default to hold that a federal court may exercise its

discretion    to     raise    procedural       default     sua    sponte.     E.g.,

Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993); Hardiman

v. Reynolds, 971 F.2d 500, 504 (10th Cir. 1992); Hull v. Freeman,

932 F.2d 159, 164 (3d Cir. 1991), overruled on other grounds,

Caswell v. Ryan, 953 F.2d 853 (3d Cir. 1992); Burgin v. Broglin,

900 F.2d 990, 997-98 (7th Cir. 1990). Likewise, the district court

in this case relied upon our precedent in Graham v. Johnson, 94

F.3d 958, 970 (5th Cir. 1996), which permits sua sponte invocation

of the exhaustion doctrine, as authority for the proposition that

procedural default may also be raised sua sponte.

     Not surprisingly, Magouirk argues that there are important

differences between the exhaustion and procedural default doctrines

that require a holding that procedural default may not be raised

sua sponte.     Magouirk points out that dismissal for failure to

exhaust state remedies merely delays federal litigation of the

petitioner’s claim until the state court has the opportunity to

address petitioner’s claims, while dismissal on the basis of

procedural default operates to preclude further litigation of

petitioner’s claims in both the state and federal court. See Smith

v. Horn, 120 F.3d 400, 408-09 (3d Cir. 1997) (distinguishing

between sua sponte invocation of nonexhaustion and procedural

default),    cert.    denied,    118    S.    Ct.   1037   (1998).      Similarly,

Magouirk    argues    that    comity    and    federalism        interests   may    be


                                         20
implicated to a greater degree when a federal court intervenes

before    state   remedies    are   exhausted   than   when    further   state

remedies are unavailable because defaulted.

     We view these differences as a matter of degree rather than

substance.    See Coleman, 111 S. Ct. at 2555 (“Just as in those

cases in which a state prisoner fails to exhaust state remedies, a

habeas petitioner who has failed to meet the State’s procedural

requirements for presenting his federal claims has deprived the

state courts of an opportunity to address those claims in the first

instance.”)       Moreover,    whatever    force   these   differences    may

eventually exert on a particular district court’s exercise of its

discretion to raise procedural default doctrine sua sponte, they

are without any weight in this case.               Magouirk’s claims are

“technically” exhausted because, and only because, he allowed his

state law remedies to lapse without presenting his claims to the

state courts.     In such a case, there is no substantial difference

between nonexhaustion and procedural default.                 Id.   Given the

similarity of these doctrines, particularly in this case, we see no

reason to adopt a rule that is inconsistent with our holding in

Graham.

     The First, Second, Third, Seventh, Ninth, Tenth and Eleventh

Circuits have all recognized that a federal court may, in the

exercise of its judicial discretion, raise procedural default sua

sponte in a habeas case.2       Indeed, although the Circuits vary with

     2
          See Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir.
1997), cert. denied, 118 S. Ct. 1172 (1998); Esslinger v. Davis, 44
F.3d 1515, 1523-29 (11th Cir. 1995); Steele v. Young, 11 F.3d 1518,

                                      21
respect to when that discretion may be appropriately exercised,

none of the federal Circuits has taken a contrary position.

      This Court has never definitively addressed whether a federal

district court may raise procedural default sua sponte, although

some of our cases seem to implicitly recognize that such a power

exists.   E.g., Mayo v. Lynaugh, 893 F.2d 683, 686 (5th Cir. 1990)

(“although it may be permissible to allow a district court at any

opportunity to evaluate the alleged procedural default, the same

flexibility cannot be posited to allow raising a procedural default

defense at any juncture in the proceedings”); Wiggins v. Procunier,

753 F.2d 1318, 1321 (5th Cir. 1985) (reviewing procedural default

issue notwithstanding state’s waiver because “the district court

addressed the issue of procedural default”); see also Narvaiz v.

Johnson, 134 F.2d 688, 692-93 (5th Cir. 1998); Goodwin v. Johnson,

132 F.2d 162, 178 (5th Cir. 1998) (relying upon Trest, 118 S. Ct.

478, for the proposition that the Court of Appeals is not required

to raise procedural default sua sponte).      Today, we join our sister

circuits by adopting the rule that a federal district court may, in

the   exercise   of   its   discretion,   raise   a   habeas   petitioner’s


1523 (10th Cir. 1993); Washington, 996 F.2d at 1447; Hardiman, 971
F.2d at 502-03; Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.
1991); Hull, 932 F.2d at 164 n.4; Burgin v. Broglin, 900 F.2d 990,
997-98 (7th Cir. 1990); see also Bannister v. Delo, 100 F.3d 610,
619 (8th Cir. 1996) (petitioner’s argument that the district court
improperly raised procedural default sua sponte rejected by the
Court of Appeal in a petition for rehearing and by the district
court on remand), cert. denied, 117 S. Ct. 2526 (1997).         The
Supreme Court recently declined to answer whether a habeas court
may raise procedural default sua sponte, answering instead the more
narrow question presented, which was whether a Court of Appeals
must raise the doctrine of procedural default sua sponte. Trest,
118 S. Ct. at 480-81.

                                    22
procedural default sua sponte and then apply that default as a bar

to further litigation of petitioner’s claims.         Like other federal

courts, we recognize that the district court’s exercise of its

discretion must be founded upon the very same principles of comity

and   judicial   economy    that   undergird    the   procedural    default

doctrine.    See, e.g., Smith, 120 F.3d at 409; Esslinger, 44 F.3d

1515, 1525-28; see also Granberry, 107 S. Ct. at 1673-76.           We turn

now to an examination of whether the district court properly

exercised its discretion in this case.



B.    The District Court’s Exercise of Its Discretion

      Procedural default, standing alone, does not always justify a

dismissal of the habeas corpus petitioner’s claims.              Procedural

default may be excused upon a showing of cause and prejudice or

that application of the doctrine will result in a fundamental

miscarriage of justice.       Coleman, 111 S. Ct. at 2564.          Several

courts have constrained the district court’s discretion to raise

procedural default sua sponte by requiring that the court provide

the habeas petitioner with (1) notice that procedural default will

be an issue for consideration by the habeas court, and (2) a

reasonable    opportunity     to   respond     with   argument     opposing

application of the doctrine.        E.g., Esslinger, 44 F.3d at 1528

(“[W]e think it fundamentally unfair for a court sua sponte to

invoke a procedural default without giving the petitioner an

opportunity to show cause for the default.”); id. at 1529 n.45 (“If

the petitioner is to be afforded due process, he must receive


                                    23
notice of the court’s inclination to interpose the default, an

opportunity to demonstrate ‘cause’ for the default and ‘prejudice,’

and, if material issues of fact are present, an opportunity to

present his evidence.”); Hardiman, 971 F.2d at 505 (“Prior to

dismissing an action sua sponte, a court must give the complainant

an opportunity to respond to the argument for dismissal.”); see

also Washington, 996 F.2d at 1444 (requiring additional briefing

when procedural default raised sua sponte on appeal).     We agree

that when a federal district court (rather than the state) sua

sponte raises procedural default, failure to provide the habeas

petitioner with notice and a reasonable opportunity to present

argument against dismissal may, in a given case, constitute an

abuse of discretion.   We do not, however, impose any per se rule

requiring any particular form of notice or additional argument.

See Trest, 118 S. Ct. at 481 (“We do not say that a court must

always ask for further briefing when it disposes of a case on a

basis not previously argued.     But often, as here, that somewhat

longer (and often fairer) way ‘round is the shortest way home.”).

Whatever the precise parameters of that requirement may be, they

were clearly met in this case.

     Here, the Magistrate Judge’s Memorandum and Recommendation

placed Magouirk on notice that procedural default was a potentially

dispositive issue with respect to three of his claims.    Magouirk

responded to the Magistrate Judge’s sua sponte invocation of

procedural default within the ten-day time period allowed for

filing objections to the report.   Thus, Magouirk was afforded both


                                 24
notice and a reasonable opportunity to oppose application of the

procedural default doctrine in the district court.

      A state’s purposeful waiver may also pose an obstacle to sua

sponte reliance upon a procedural default, and the nature of the

state’s alleged “waiver” should be given consideration by the

district court.     “[P]rocedural default is normally a defense that

the State is obligated to raise and preserve if it is not to lose

the right to assert the defense thereafter.”         Trest, 118 S. Ct. at

480 (internal quotations and alternations omitted).              Notwith-

standing that obligation, there are situations in which the state

fails, “whether inadvertently or otherwise,” to raise a meritorious

defense.   Granberry, 107 S. Ct. at 1675.           Where omission is the

result of a purposeful or deliberate decision to forgo the defense,

the district court should, in the typical case, presume that waiver

to be valid.    See, e.g., Esslinger, 44 F.3d at 1528 (finding an

abuse of discretion where district court ignored state’s express

waiver entered after the procedural default issue was raised by the

district court); Hardiman, 971 F.2d at 502 (noting that the rule

against sua sponte consideration of waived defenses distinguishes

our   adversarial   judicial   system   from   an    inquisitorial   one).

Conversely, when omission is inadvertent, federal interests may be

more likely to justify “a fresh look” at the omitted defense by the

habeas court.   Granberry, 107 S. Ct. at 1675; see also Washington,

996 F.2d at 1448 (“This is not a case where the government

consciously waived the procedural default defense knowing that it

may indeed be valid.”); Henderson, 859 F.2d at 498 (holding that


                                  25
the    court   may    consider   procedural       default      when    the    state

inadvertently omits or belatedly raises the defense, but that the

court may not override a state’s deliberate decision to forgo the

defense).

       The record in this case indicates that the state’s “waiver”

was an inadvertent byproduct of careless briefing.                    While it is

true that the thrust of the state’s argument in favor of its Motion

to Dismiss focused upon the exhaustion requirement, it is also true

that Magouirk’s claims were exhausted only because he failed to

present his claims to the state court before they were time barred.

The state correctly argued the essential fact that Magouirk failed

to    timely   present   his   claims    to    the   state’s    highest      court.

Moreover, the state relies upon procedural default in its argument

to this Court.       Cf. Narvaiz, 134 F.2d at 692-93; Goodwin, 132 F.2d

at 178 (finding no federal interest in raising procedural default

sua sponte on appeal where state failed to argue the doctrine in

both the district court and the court of appeals).                     We cannot

conclude from this record that the state intentionally waived

reliance upon procedural default.            Thus, the circumstances of this

case are not such that the Magistrate Judge and district court were

bound to honor the state’s inelegant presentation of the procedural

default defense.

       We conclude that a federal district court may, in the exercise

of its judicial discretion, raise procedural default sua sponte.

The court’s exercise of its discretion should not be automatic, but

must in every case be informed by those factors relevant to


                                        26
balancing the federal interests in comity and judicial economy

against the petitioner’s substantial interest in justice.            Once a

federal district court elects to raise procedural default sua

sponte, the court should consider whether justice requires that the

habeas    petitioner   be   afforded   with   notice   and   a   reasonable

opportunity to present briefing and argument opposing dismissal.

Likewise, the district court should consider whether the state’s

failure to raise the defense is merely inadvertence or the result

of a purposeful decision to forgo the defense.

     Magouirk was afforded both notice and a reasonable opportunity

to oppose dismissal.        Likewise, there is no evidence that the

state’s failure to raise Magouirk’s procedural default in this case

was the result of a considered and deliberate decision to waive

reliance upon that doctrine.      For these reasons, we find no abuse

of the district court’s discretion to raise Magouirk’s procedural

default sua sponte.


                                III.
           Application of the Procedural Default Doctrine

     Magouirk raised five claims in his federal habeas petition.

Claim 1, objecting to the state’s attempt to offer new evidence in

its petition for rehearing on appeal, was never presented to any

state court.   Magouirk made that argument for the first time in his

federal habeas petition.      Claim 5, alleging that trial counsel was

constitutionally ineffective, was raised only in the state trial

court, as part of Magouirk’s state petition for post-conviction

relief.    Magouirk concedes that he is time-barred from seeking


                                   27
further relief in the Louisiana courts.                     Therefore, Magouirk’s

failure to present claims 1 and 5 to the proper Louisiana courts

creates a procedural default for purposes of federal habeas review.

See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995).

      Claim    3,   challenging      the    introduction      of     “other   crimes”

evidence,     was   presented   to    the       Louisiana    Court    of   Appeal    on

interlocutory appeal, and again to that court as part of Magouirk’s

first direct appeal.        Magouirk did not, and cannot now, present

this claim to the Louisiana Supreme Court.                   Thus claim 3 is also

procedurally defaulted.

      Magouirk argues his failure to seek review of claim 3 by the

Louisiana Supreme Court should be excused because the review is

discretionary. Magouirk recognizes that this Court requires claims

to be presented to the state’s highest court, even when the review

is discretionary.        Richardson v. Procunier, 762 F.2d 429, 431-32

(5th Cir. 1985).         Magouirk nonetheless contends that the Court

should overrule its prior decision in Richardson and embrace the

Eighth Circuit’s approach in Dolny v. Erickson, 32 F.3d 381, 383

(8th Cir. 1994), which does not require exhaustion of discretionary

remedies.     Alternatively, Magouirk asks the Court to distinguish

Richardson because Richardson examined exhaustion in Texas state

courts.   Magouirk argues that discretionary review is more likely

in   Texas,    because    the   Texas      Court    of    Criminal     Appeals      has

exclusively criminal jurisdiction while the Louisiana Supreme Court

handles both civil and criminal matters.                 Magouirk’s argument that

we should remove the state’s highest court from the exhaustion loop


                                           28
is unpersuasive.     We find no reason to disagree with or attempt to

distinguish this Court’s binding precedent in Richardson.              Claim 3

is procedurally defaulted.

      The    district    court    determined   that   Magouirk      failed   to

demonstrate cause and prejudice or a fundamental miscarriage of

justice that would excuse his default of claims 1, 3 and 5.                  We

agree.      Magouirk’s objections challenge the authority of the

Magistrate Judge to raise procedural default sua sponte without

notice.     Although he had the opportunity, Magouirk did not even

attempt to explain why he failed to pursue available state remedies

within the time frame allowed by state law.              Magouirk has not

corrected this oversight on appeal, even though this Court’s COA

placed Magouirk on notice that his excuse for the default would be

an issue on appeal.

      Claims 1, 3 and 5 are procedurally defaulted.                  Although

Magouirk had both notice and an opportunity to present argument in

the district court opposing the application of the procedural

default doctrine, Magouirk made no attempt to excuse his default.

Indeed, Magouirk relied upon his default to establish “technical”

exhaustion.     The district court’s disposition of claims 1, 3 and 5

is affirmed.

                                    IV.
                        Magouirk’s Remaining Claims

      Magouirk’s remaining claims, claims 2 and 4, have not been

procedurally defaulted.          Claim 2 challenges both the state trial

court’s fact findings on the issue of waiver, and that court’s use

of   the    preponderance   of     the   evidence   standard   to   determine

                                         29
Magouirk’s waiver. Claim 2 was presented to the Louisiana Court of

Appeal on direct appeal, and to the Louisiana Supreme Court in

Magouirk’s application for writ of certiorari.     Thus, claim 2 has

not been defaulted and we review the district court’s disposition

of claim 2 on the merits.

     Magouirk first argues that the Louisiana Court of Appeal’s

adoption of the preponderance of the evidence standard to determine

Magouirk’s waiver deprived him of his Sixth Amendment right to

confront Durbyn.   Whether Magouirk waived his constitutional right

to confront Durbyn is a federal question controlled by federal, not

state, law.   Shaw v. Collins, 5 F.3d at 132.   As the district court

held, and Magouirk concedes, the Louisiana state courts are not

bound by Fifth Circuit precedent when making a determination of

federal law.3   See, e.g., Freeman v. Lane, 962 F.2d 1252, 1258 &

n.3 (7th Cir. 1992); Bromley v. Crisp, 561 F.2d 1351, 1354 (10th

Cir. 1977), Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965).

The Louisiana Court of Appeal considered and rejected United States

v. Thevis, 665 F.2d 616 (5th Cir. 1982), which requires clear and

     3
           Of course, the Louisiana Court of Appeal would be bound
by Louisiana Supreme Court precedent on point. Magouirk argues
briefly that the preponderance of the evidence standard is also
inconsistent with Louisiana Supreme Court precedent, citing State
v. Jones, 325 So. 2d 235, 239 (La. 1976), and State v. Johnson, 260
So. 2d 645, 650 (La. 1972). Although both of those cases discuss
the confrontation right, neither Jones nor Johnson addresses the
evidentiary standard required to demonstrate waiver of a criminal
defendant’s confrontation right by misconduct.      See Jones, 325
So. 2d at 239 (addressing the standard required to demonstrate that
a witness is unavailable to testify); Johnson, 260 So. 2d at 650
(involving the denial of a criminal defendant’s request for a
transcript of trial proceedings); see also United States v.
Mastrangelo, 693 F.2d at 273 (“waiver by misconduct is an issue
distinct from the underlying right of confrontation”).

                                 30
convincing evidence that a defendant has waived his confrontation

right by misconduct.       Id. at 631.    Rejecting Thevis, the Court of

Appeal adopted the Second Circuit’s decision in United States v.

Mastrangelo, 693 F.2d 269 (2d Cir. 1982), which permits a finding

of   waiver   on   proof    by   a   preponderance   of   the   evidence.

Mastrangelo, 693 F.2d at 272-73.          Mastrangelo’s adoption of the

preponderance standard was not inadvertent -- the opinion contains

a lengthy discussion of the various standards, and cites our

decision in    Thevis.     The Louisiana Court of Appeal was free to

adopt the preponderance of the evidence standard for determining

Magouirk’s waiver.    That Court’s reliance upon Mastrangelo did not

deprive Magouirk of his Sixth Amendment right to confront Durbyn.

     Magouirk also renews his challenge to the trial court’s fact

findings on remand that (1) the state did not waive its right to

rely upon Magouirk’s waiver by misconduct, and (2) Magouirk waived

his confrontation right by misconduct.4         The state trial court’s

findings were made after a hearing on the merits and are evidenced

by a written opinion analyzing both factual issues.              In such

circumstances, the state trial court’s fact findings are typically

entitled to a presumption of correctness. See 28 U.S.C. § 2254(d).

That presumption may be rebutted, inter alia, by a showing that the


     4
          Whether Magouirk waived his right to confront Durbyn is
a federal question of constitutional dimension. Whether the state
waived its right to raise Magouirk’s waiver by failing to assert
the argument at trial is a matter of state law.         Although we
express no view concerning the proper scope of the district court’s
review on remand, we encourage the district court to be mindful of
the fundamental difference between these two factual determinations
when considering Magouirk’s claims.

                                     31
fact finding procedure employed by the state court was not adequate

to afford a full and fair hearing, or that the material facts were

not adequately developed at the state court hearing.                          Id. §

2254(d).   Moreover, state court fact findings may not be entitled

to the same deference when the federal habeas record does not

contain that portion of the state court record that is required to

establish the sufficiency of the evidence to support the state

court’s fact finding.         Id. § 2254(e).

     The   Magistrate        Judge   found    that   he    could   proceed    to    an

examination      of    the   merits     of    Magouirk’s     challenge       to    the

correctness of the state trial court’s fact findings because “the

state court record in this case is published and the necessary

portions of the record have been provided by Magouirk.”                            The

Magistrate Judge supported that assertion with citation to those

provisions of § 2254 newly amended by the passage of AEDPA.

     The Magistrate Judge’s statement that the state court record

was published is puzzling.           The Magistrate Judge’s assertion that

the necessary portions of the state court record had been filed by

Magouirk is simply incorrect.           Magouirk filed only a selection of

briefs filed      in   Louisiana      courts,   together      with   some    of    the

published decisions resulting from his conviction.                   Neither the

state, which had been ordered to file a state court record, nor

Magouirk, filed a record of the proceedings in the state trial

court.     The    district      court    adopted     the    Magistrate       Judge’s

recommendation that the state trial court findings be presumed

correct without elaboration.


                                         32
     There    is   no   basis   for   meaningful     review   of   Magouirk’s

challenge to the state court fact findings in the existing record.

The record does not contain the pleadings filed on remand.                 The

record does not contain a transcript of the proceedings on remand.

Indeed, the only portion of the record that provides any basis for

meaningful review of Magouirk’s claim that the state trial court’s

fact findings are erroneous is the state trial court’s order on

remand, which simply states the very fact findings being here

subjected to review. Regardless of how deferential the standard of

review for state court fact findings secured in this manner, we

fail to see how any review at all can be conducted when the

relevant portions of the state court record on remand are not

available for review.       See Townsend v. Sain, 83 S. Ct. 745, 760

(1963) (“Ordinarily such a record -- including the transcript of

testimony (or if unavailable some adequate substitute, such as a

narrative    record),    the    pleadings,   court    opinions,    and   other

pertinent documents -- is indispensable to determining whether the

habeas applicant received a full and fair state-court evidentiary

hearing resulting in reliable findings.”); Baker v. Estelle, 711

F.2d 44, 46 (5th Cir. 1983) (excusing state’s failure to produce

necessary record as required by court order where state record was

shown to be unavailable and alternative evidence was produced).

     We think a similar problem infects the district court’s

dismissal of claim 4, Magouirk’s challenge to the sufficiency of

the evidence against him. The record before the district court did

not contain a state court transcript of Magouirk’s trial.                We are


                                      33
at a loss to understand how a federal habeas court can conduct a

meaningful sufficiency review without a transcript of trial.               The

Magistrate Judge, in the order adopted by the district court,

purported to rely solely upon the rendition of the facts reported

in the Louisiana Court of Appeal decision denying Magouirk’s

sufficiency claim on direct appeal.            Once again, Magouirk may face

a heavy burden on collateral review of his conviction.               That does

not mean, however, that we may simply rely upon the state court

decision Magouirk identifies as denying his constitutional rights

to support our conclusion that they were not violated.               This case

must be remanded so that the record can be supplemented with those

portions   of   the   state   court     record    necessary   to    conduct   a

meaningful review.

     Remand is also justified by the fact that the Magistrate Judge

premised his deference to the state court fact findings upon that

version of § 2254 that has been amended by AEDPA.                  The amended

version    of   §   2254   places   a   more    onerous   burden    on   habeas

petitioners who seek to rebut the presumption of correctness

afforded state court fact findings.            Jackson v. Anderson, 112 F.3d

823, 824-25 (5th Cir. 1997), cert. denied, 118 S. Ct. 1059 (1998).

Thus, the Magistrate Judge’s application of AEDPA to Magouirk’s

claims, which conformed to our precedent at the time but was

subsequently shown to be incorrect by Lindh, may have influenced

his view of the deference to be afforded the challenged fact

findings and Magouirk’s burden in overcoming that deference.

     For the foregoing reasons, the district court’s dismissal of


                                        34
claim 2, to the extent it challenges the state trial court’s fact

findings on remand, and claim 4, Magouirk’s challenge to the

sufficiency of the evidence, will be vacated.                 The case will be

remanded to the district court with instructions that the district

court order compliance with the Magistrate Judge’s earlier order

requiring that the state file an answer and a certified copy of the

relevant    state    court     record.         Magouirk’s    challenge    to    the

correctness of the state court fact findings must then be evaluated

in light of the state court record of the proceedings on remand.

Similarly, Magouirk’s challenge to the sufficiency of the evidence

must then be evaluated in light of the state court record of

Magouirk’s trial.          If, for whatever reason, the relevant state

court records are not available, the district court must order an

evidentiary hearing for the presentation of evidence relating to

Magouirk’s claims.     The district court is reminded that, under the

Supreme Court’s disposition in Lindh v. Murphy, 117 S. Ct. 2059

(1997), Magouirk’s claims are governed by pre-AEDPA law.

     We express no opinion one way or the other as to whether

Magouirk will ultimately be able to establish a violation of his

constitutional rights.        We merely hold that the record before the

district court, which contained no record of the proceedings before

the state trial court on remand, and no record of Magouirk’s trial,

did not provide a meaningful basis for review of Magouirk’s claims

that the    trial    court’s       fact   findings   on   remand   were    clearly

erroneous    and    that     the    evidence     presented    against     him   was

insufficient to support his conviction.


                                          35
                              CONCLUSION

     The district court’s application of the procedural default

doctrine to Magouirk Claims 1, 3 and 5 is without error.   Magouirk

defaulted claims 1, 3 and 5 and, although he was afforded the

opportunity to do so, Magouirk has not established either cause and

prejudice or a manifest miscarriage of justice sufficient to excuse

his default.   Therefore, the district court’s dismissal of claims

1, 3 and 5 is AFFIRMED.

     The district court’s dismissal of claim 2, to the extent that

it challenged the accuracy of the state trial court’s findings on

remand, and claim 4, challenging the sufficiency of the evidence to

support Magouirk’s conviction, was ordered in the absence of an

adequate record.     Accordingly, the district court’s dismissal of

these claims on the merits is VACATED, and the cause is REMANDED

with instructions.    On remand, the state must be ordered to comply

with Magistrate Judge’s Memorandum Order by submitting a complete

state court record. If, for whatever reason, those records are not

available, the district court must order an evidentiary hearing for

the purpose of receiving evidence relevant to those claims.

     The judgment of the district court is AFFIRMED in part,

VACATED in part, and the cause is REMANDED with instructions for

further proceedings.




                                  36
