     Case: 10-10766   Document: 00511859488      Page: 1   Date Filed: 05/17/2012




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

                                                                     FILED
                                                                    May 17, 2012

                                   No. 10-10766                     Lyle W. Cayce
                                                                         Clerk

BRADLEY ALLEN REGISTER,

                                              Petitioner–Appellee
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                              Respondent–Appellant



                  Appeal from the United States District Court
                       for the Northern District of Texas


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
        The district court granted habeas relief under 28 U.S.C. § 2254 because
the reporter for the state trial court lost her notes, impairing resolution of the
prisoner’s challenges to his conviction. We are persuaded that the district court
could likely have reconstructed an adequate record, and we vacate the grant of
relief and remand the case to the district court for further proceedings.
                                         I.
        A Texas jury convicted the petitioner, Bradley Allen Register, of possession
or transportation of anhydrous ammonia, a chemical used in manufacturing
methamphetamine, in a container or receptacle not designed or manufactured
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                                       No. 10-10766

for the storage or transport of anhydrous ammonia.1 While this offense carries
a maximum sentence of ten years imprisonment, Register had a prior felony
conviction for possession of a controlled substance, exposing him to a maximum
sentence of up to twenty years. After a jury verdict of guilty, he pleaded “true”
to the enhancement and was sentenced to twelve years imprisonment. Register
waived in writing his right to seek a new trial and all appellate rights: his rights
to take an appeal, to counsel on appeal, and to have the record on appeal
provided to him free of charge. Register, his attorney, and the trial judge signed
the waiver.
      A few months after his conviction, Register filed an application for habeas
relief in the convicting court. Texas law requires such a convicting court to make
findings as to “whether there are controverted, previously unresolved facts
material to the legality of the applicant’s confinement” within thirty-five days
of the filing of the habeas application.2 If the convicting court fails to act within
that thirty-five-day window, it is deemed to have found that there are no such
unresolved factual issues.3 The state trial court failed to act on Register’s
petition. The Texas Court of Criminal Appeals in turn denied the application
without a written order.
      Register then filed his federal habeas petition, asserting the five claims of
his state application: (1) denial of his right to appeal; (2) ineffective assistance
of counsel; (3) illegal search and seizure; (4) insufficiency of the evidence; and (5)
double jeopardy.




      1
          See generally TEX. HEALTH & SAFETY CODE ANN. § 481.1245 (West 2010).
      2
          See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(b)–(c) (West 2005).
      3
          Id. § 3(c).

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                                      No. 10-10766

      Under Texas law, an indigent criminal defendant is entitled to a free copy
of his trial transcript only if he takes a direct appeal.4 Because Register waived
his right to a direct appeal, when he requested a copy of his trial transcript prior
to filing his state habeas petition, the state court refused to provide him with
one. In its answer to Register’s § 2254 habeas petition, the State alleged that
it was impossible for Register to carry his burden of proof under AEDPA without
a trial transcript. Register replied to the State’s answer, again asserting that
he had not been given access to his court transcripts. The district court then
asked the State to obtain a copy of the trial transcript. Only then was it was
found that the court reporter had lost her notes and could not provide a
transcription.
      The district court ultimately granted Register’s petition, noting that the
state-court records it had received “do not contain a statement of facts, docket
sheets, clerk’s records, [] copies of pretrial motions[,] . . . or copies of
transcriptions of any pretrial, trial, plea agreement, or sentencing proceedings”
and that “even with the deference due a state court’s decision, the record is
simply too insufficient to conduct the review required by 28 U.S.C. § 2254(d)
when there are no state records or facts before this Court.” The State timely
appealed.

                                            II.
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.”5 A
petitioner presenting a “claim that was adjudicated on the merits in State court”


      4
          Ex parte Trainer, 181 S.W.3d 358, 358–59 (Tex. Crim. App. 2005).
      5
        Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (internal quotation marks
omitted).

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                                         No. 10-10766
can prevail only if the state-court decision: (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”6
                                               III.
       Register argues that the absence of a record of the proceedings leading to
his conviction and sentence made it impossible for the state courts to evaluate
the merits of his claims and that he therefore should escape AEDPA standards
of review. The argument has purchase only if it elides the relevant section of
AEDPA, which “refers only to a ‘decision,’ which resulted from an
‘adjudication.’”7 Insofar as Register’s claims were adjudicated on the merits in
the state courts,8 AEDPA barred the federal district court from granting habeas
relief absent a determination that the state court adjudication was contrary to
or involved an unreasonable application of clearly established federal law, or was


       6
           28 U.S.C. § 2254(d).
       7
           Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
       8
          Because the CCA denied Register’s habeas application without written order, its
decision constituted a “denial on the merits” as to all of Register’s non-procedurally-barred
claims. McCall v. Dretke, 390 F.3d 358, 362 n.12 (5th Cir. 2004) (“The Texas Court of Criminal
Appeals denied McCall’s state habeas application without written order. However, we have
recognized that under Texas law, the denial of relief by the Court of Criminal Appeals serves
as a denial on the merits.” (citing Barrientes v. Johnson, 221 F.3d 741, 779–80 (5th Cir.
2000))); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (“In our writ
jurisprudence, a ‘denial’ signifies that we addressed and rejected the merits of a particular
claim . . . .”). Thus, AEDPA standards apply. See Cullen v. Pinholster, 131 S. Ct. 1388, 1402
(2011) (“Section 2254(d) applies even where there has been a summary denial.”); Richter, 131
S. Ct. at 784 (“[D]etermining whether a state court’s decision resulted from an unreasonable
legal or factual conclusion does not require that there be an opinion from the state court
explaining the state court's reasoning.”). Register’s sufficiency of the evidence claim was
procedurally defaulted. See infra notes 22–23 and accompanying text. That claim was thus
denied on an independent and adequate state procedural ground, and the district court cannot
review the denial unless Register demonstrates cause and prejudice for the default. See Dretke
v. Haley, 541 U.S. 386, 392 (2004).

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                                        No. 10-10766
based on an unreasonable determination of the facts in light of the evidence
adduced in the state court proceeding.9                Granting Register’s petition based
solely on the fact that “the record is simply too insufficient to conduct the review
required by 28 U.S.C. § 2254(d)” moves too quickly.
      At the same time, the state should not win by default when a petitioner is
stymied by circumstances of the state’s making. While AEDPA commands
substantial deference to the decisions of state courts, “deference does not imply
abandonment or abdication of judicial review.”10 Want of the trial transcript and
other critical portions of the state-court record places the district court in a
difficult position. Nonetheless, the district court must undertake meaningful
review of Register’s claims.
                                              IV.
      Review on this record poses challenges.
                                               A.
      First, there is Cullen v. Pinholster, which limits review under § 2254(d) to
the record that was before the state court.11 While we have neither a trial
transcript nor any written analysis of Register’s state habeas petition from the
state trial court or CCA, the state habeas court’s failure to act on Register’s
petition is under Texas law a decision that there were no unresolved factual
issues relevant to Register’s detention. The federal district court thus may
presume that the CCA found no unresolved factual issues relevant to Register’s
detention and “look through” the CCA’s decision to analyze the trial court’s




      9
          See 28 U.S.C. § 2254(d).
      10
           Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
      11
           Pinholster, 131 S. Ct. at 1398, 1400 n.7.

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                                         No. 10-10766
rejection of Register’s petition.12 The state trial court had at its disposal not only
the record documents now in Register’s file, but also the trial judge’s recollection
of the trial, pre-trial, and post-trial proceedings. Under these circumstances,
Pinholster does not bar the district court from re-creating, if it can, the record
that the state trial court had before it when it reviewed Register’s habeas
petition.
       As an initial step, the district court should determine whether Register
has made a preliminary showing that further factual development of his claims
“might be fruitful.”13 If the district court determines that Register has made
such a showing, it may, as it thinks appropriate, solicit from the trial judge a
certificate setting forth the facts occurring at trial,14 allow the parties to take
depositions and submit affidavits,15 and, if needed, conduct a live evidentiary
hearing.16
       We are hesitant to proceed to the merits in part because, even in the
absence of a state court record and written opinion, some of Register’s claims
clearly cannot succeed. For example, the district court does not need additional
materials to determine that Register’s Double Jeopardy claim must fail. The



       12
         See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Bledsue v. Johnson, 188 F.3d
250, 256 (5th Cir. 1999).
       13
            See Dalton v. Battaglia, 402 F.3d 729, 734 (7th Cir. 2005).
       14
            See 28 U.S.C. § 2245.
       15
            See id. § 2246.
       16
           See id. § 2254(e)(2). An evidentiary hearing generally is not available to a petitioner
who “failed to develop the factual basis of a claim in State court proceedings.” Id. Here,
however, the failure to develop the record in the state habeas proceeding was not Register’s
fault, as the trial court never took any action on his petition. While the district court may not
consider evidence introduced at an evidentiary hearing that was not part of the state-court
record, see Pinholster, 131 S. Ct. at 1399–1400, we see no reason why the district court could
not consider evidence introduced for the limited purpose of reconstructing part of the state-
court record. Cf. Dalton, 402 F.3d at 736–37.

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Supreme Court has squarely held that the introduction of extraneous-offense
evidence under Rule 404(b) does not implicate double-jeopardy principles.17 In
addition, because Texas has processes that allow defendants like Register to
pursue Fourth Amendment claims at the trial level and on direct appeal, under
Stone v. Powell, Register “received a full and fair opportunity to litigate” his
illegal-search-and-seizure claim and is barred from raising it on federal habeas
review.18 “[I]t is the existence of state processes allowing an opportunity for full
and fair litigation of fourth amendment claims, rather than a defendant’s use of
those processes, that serves the policies underlying the exclusionary rule and
bars federal habeas corpus consideration of claims under Stone.”19 In short, the
Stone bar applies even where the petitioner did not avail himself of the litigating
opportunity provided by the state courts.20
       For other claims, further factual development may be necessary. Register
claims his counsel was ineffective at many stages in the state court proceeding.
Although some of Register’s allegations remain cryptic, the grounds for this
claim appear to include failures to argue that the prosecution had not met its
burden, to challenge the admission of evidence obtained without probable cause,
to call expert witnesses and to prepare adequately for cross-examination, and
misleading Register regarding his appellate rights and the content of the written
waiver. The State argues that the “state court’s decision to deny relief on
Register’s Strickland claims” is entitled to deference “based on Register’s

       17
         See United States v. Felix, 503 U.S. 378, 387 (1992) (“[T]he introduction of relevant
evidence of particular misconduct in a case is not the same thing as prosecution for that
conduct.”).
       18
         Moreno v. Dretke, 450 F.3d 158, 167 (5th Cir. 2006) (citing Stone v. Powell, 428 U.S.
465, 494 (1976)).
       19
        Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980) (citing Caver v. Alabama, 577
F.2d 1188, 1192–93 (5th Cir. 1978)).
       20
            See id.

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                                          No. 10-10766
inartful pleading.” We insist that claims be presented, but the measure for that
accounting includes our unwillingness to hold pro se litigants “to the same
stringent and rigorous standards as are pleadings filed by lawyers.”21
       Register did not raise his sufficiency of the evidence claim on direct appeal,
and it was not cognizable on state habeas review.22 Thus, the sufficiency of the
evidence claim was denied on an independent and adequate state procedural
ground. To overcome the procedural default bar, Register must establish either
cause and prejudice or that failure to consider the claim will result in a
fundamental miscarriage of justice.23 Register’s waiver of appeal rights likely
forecloses any such showing. Of course, this assumes the validity of the waiver.
       But Register’s denial of appeal claim also has limited prospects. There is
no constitutional right to a direct appeal.24 “Nonetheless, if a State has created
appellate courts as ‘an integral part of the . . . system for finally adjudicating the
guilt or innocence of a defendant,’ . . . the procedures used in deciding appeals
must comport with the demands of the Due Process and Equal Protection
Clauses of the Constitution.”25 A valid “waiver of the right to appeal requires
only that there be a knowledge of the right to appeal and a failure to make
known the desire to exercise that right.”26 Register signed a written waiver that

       21
         Hernandez v. Thaler, 630 F.3d 420, 426 & n.26 (5th Cir. 2011) (per curiam) (citations
and internal quotation marks omitted).
       22
         See Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994); Ex parte Grigsby, 137 S.W.3d 673,
674 (Tex. Crim. App. 2004) (“A challenge to the sufficiency of the evidence presents one of
those instances where we can never consider the merits of the applicant’s claim.”).
       23
            Williams v. Thaler, 602 F.3d 291, 307 (5th Cir. 2010).

       24
            Evitts v. Lucey, 469 U.S. 387, 393 (1985).

       25
         Id. (citation omitted) (first alteration in original) (quoting Griffin v. Illinois, 351 U.S.
12, 18 (1956)).
       26
         Childs v. Collins, 995 F.2d 67, 69 (5th Cir. 1993); see also White v. Johnson, 180 F.3d
648, 654 (5th Cir. 1999) (“[A] defendant may be held to have waived the right to appeal upon

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                                         No. 10-10766
acknowledged his appeal rights and expressly waived those rights. Absent
competing and convincing evidence extrinsic to the waiver, Register cannot
succeed on this claim. Indeed, the validity of the waiver is a precedent issue and
may prove to be determinative by obviating the need, for example, of a trial
transcript to assess the claim of insufficient evidence.
                                               B.
       Second, there is the question of what role – if any – § 2254(e)(1) and
§ 2254(f) should play in the district court’s analysis. Under § 2254(e)(1), a state
court’s discrete factual findings are presumed to be correct, and the petitioner
“ha[s] the burden of rebutting the presumption of correctness by clear and
convincing evidence.”27 The presumption applies both to explicit findings of fact
and to “unarticulated findings which are necessary to the state court’s
conclusions of mixed law and fact.”28 Section 2254(f) modifies the § 2254(e)(1)
presumption of correctness for instances in which a petitioner “challenges the
sufficiency of the evidence adduced in [the State habeas proceeding] to support
the State court’s determination of a factual issue.”29 In such instances, if neither
the petitioner nor the State can provide the portion of the record pertinent to the
petitioner’s challenge, “the court shall determine under the existing facts and
circumstances what weight shall be given to the State court’s factual
determination.”30




a showing that the defendant was fully informed of his appellate rights and failed to make
known his desire to exercise those rights.”).
       27
          28 U.S.C. § 2254(e)(1); see Miller-El v. Cockrell, 537 U.S. 322, 341 (2003); Valdez v.
Cockrell, 274 F.3d 941, 951 n.17 (5th Cir. 2001).
       28
            Valdez, 274 F.3d at 948 n.11.
       29
            28 U.S.C. § 2254(f); see Valdez, 274 F.3d at 955 n.21.
       30
            28 U.S.C. § 2254(f).

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                                          No. 10-10766
       While the relationship of §§ 2254(e)(1) and (f) to § 2254(d) remains
unresolved,31 we need not confront that issue here because the State court in this
case made no discrete findings of fact or discrete conclusions of mixed fact and
law. We do not know, for instance, whether the trial court reached both prongs
of the Strickland test in rejecting Register’s ineffective assistance claim.
Whatever interplay between § 2254(d) and §§ 2254(e)(1) and (f) there might be
in some cases, the latter sections will not apply here because there are no
explicit or implicit individual findings of fact for the petitioner to challenge or for
the district court to review.32
                                                 V.
       We VACATE the district court’s grant of a writ of habeas corpus and
REMAND the case for further proceedings consistent with this opinion.




       31
          See, e.g., Wood v. Allen, 130 S.Ct. 841, 849 (2010) (“Although we granted certiorari
to resolve the question of how §§ 2254(d)(2) and (e)(1) fit together, we find once more that we
need not reach this question. . . .”); Valdez, 274 F.3d at 955 n.21 (“[I]t is not clear that § 2254(f)
impacts the § 2254(d) standards of review.”).
       32
         See Miller-El, 537 U.S. at 341 (explaining that § 2254(e)(1) “pertains only to state-
court determinations of factual issues, rather than decisions”).

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                                  No. 10-10766


HAYNES, Circuit Judge, concurring in part:
      I concur in Sections I-III of the majority opinion. I also concur in the
portion of the judgment and accompanying reasoning in Section IV.A. vacating
the district court’s judgment and remanding the case to the district court for
reconstruction of the pertinent portions of the record. I agree that the district
court should consider what matters may need a record for proper review and
what matters may be decided without a record. However, I respectfully disagree
with the concept of discussing the merits of the issues presented at this juncture.
I would leave determination of those issues to the district court in the first
instance followed by appellate review, if sought, thereafter.




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