                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 29, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 00-41114


GAYLON GEORGE WALBEY, JR.,

                                    Petitioner-Appellant,
versus

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

                                    Respondent-Appellee.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                           (3:99-CV-496)
                       --------------------

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Gaylon George Walbey, Jr., Texas death row prisoner # 999114,

was convicted of capital murder under Texas Penal Code Section

19.03(a)(2) and was sentenced to death for this offense.     Walbey v.

State, 926 S.W.2d 307, 308 (Tex. Crim. App. 1996).     The conviction

and sentence were affirmed on direct appeal. Id. at 308-14. Walbey

sought relief by writ of habeas corpus in state court asserting,

among other things, that trial counsel was ineffective in failing

to investigate and present mitigation evidence and in failing to

prepare a psychologist, Dr. Wills, to testify.

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
      Following an evidentiary hearing at which trial counsel and

Wills testified, the state habeas trial court rejected most of

counsel’s testimony as not credible.                  Based on these specific

findings, that court concluded that Walbey’s trial counsel had

failed to prepare Dr. Wills to testify and had failed to perform the

investigation,     including     obtaining      a     medical   health    expert,

necessary to a rational strategy choice for the punishment phase of

the trial. The state habeas trial court ruled that Walbey would not

have been sentenced to death had counsel presented the jury with

“the wealth of mitigating evidence.”            The Texas Court of Criminal

Appeals (“TCCA”) rejected this conclusion and denied relief.                     Ex

parte   Walbey,    No.    41323-01    (Tex.    Crim.     App.   June     2,   1999)

(unpublished).

      Walbey filed an application for habeas corpus under 28 U.S.C.

§ 2254 (“§ 2254") in federal district court.               Among other issues

asserted by Walbey was a claim that his counsel had been ineffective

during the punishment phase of the trial for failing to investigate

a mitigation defense and in failing to prepare Dr. Wills for cross-

examination.      Walbey argued that the ruling of the TCCA was an

unreasonable application of federal law to the facts as found by the

state habeas trial court.       The district court considered the matter

and   denied   Walbey’s    §   2254   application.        The   district      court

conducted an “independent review of the facts” and found, based on

“overwhelming     evidence,”     that       defense    counsel’s   performance

was neither deficient nor prejudicial to Walbey’s defense.                       We

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granted Walbey a certificate of appealability (COA) based on his

allegation that the district court erred by failing to defer to the

findings of fact made by the state habeas trial court.

      In addressing a § 2254 application for federal habeas relief

that raises claims adjudicated in state court, a federal court must

defer to a state court’s resolution of both pure questions of law

and mixed questions of law and fact unless the state court’s

determination was “contrary to” or an “unreasonable application” of

clearly established federal law as determined by the Supreme Court.

28 U.S.C. § 2254(d); Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir.

2000).     Walbey insists that the district court erred in denying

federal habeas relief because the opinion of the TCCA rejecting the

relief granted by the state habeas trial court and denying relief

on his claim of ineffective assistance of counsel was, in the light

of   the   factual   findings   made       by   the   lower   state   court,   an

unreasonable application of clearly established federal law under

Wiggins v. Smith, 123 S. Ct. 2527 (2003).

      To determine whether a Texas state habeas trial court’s factual

findings are viable following review by the TCCA, we look to the

action taken by the latter court.          In Craker v. Procunier, 756 F.2d

1212, 1213-14 (5th Cir. 1985), we concluded that the state habeas

trial court’s factual findings survived appeal even though the TCCA

reached a legal conclusion contrary to that of the trial court.                Our

determination that the factual findings had survived TCCA review was

based on the observation that the TCCA had not rejected the facts

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as found by the trial court but had       held instead that relief was

not available under those facts.       Craker, 756 F.2d at 1213-14.   In

contrast, we held in Micheaux v. Collins, 944 F.2d 231, 232 (5th

Cir. 1991) (en banc), that the state habeas trial court’s factual

findings did not survive review by the TCCA, which had denied the

petitioner’s habeas petition without written order.       See Micheaux

v. Collins, 911 F.2d 1083, 1085 (5th Cir. 1990).       We reasoned:

     Not only were the “proposed findings” not adopted
     nor incorporated in the action of the Texas Court of
     Criminal Appeals, they are directly inconsistent with
     that court’s peremptory denial of relief. We conclude
     that those proposed findings did not survive scrutiny by
     the Texas Court of Criminal Appeals, the final
     decisionmaker in Texas habeas cases.

Micheaux, 944 F.2d at 232; see also Singleton v. Johnson, 178 F.3d

381, 384-85 (5th Cir. 1999).

     In the instant case, the TCCA’s order denying Walbey habeas

relief stated:

     This Court has reviewed the record with respect to
     the allegations made by [Walbey].   Pursuant to that
     review, we reject the judge’s conclusions of law as
     not supported by the record.   We further find that
     applicant has failed to meet his burden to show his
     counsel was ineffective.

Ex parte Walbey, No. 41323-01.   This case does not present the same

situation that was presented in Craker, where we determined that

the TCCA had “held that the facts as found did not entitle Craker

to relief.”   Craker, 756 F.2d at 1214.

     There is nothing in the language of the TCCA’s order in this

case, however, that would support a similar conclusion.       Here, the


                                   4
order of the TCCA is silent as to the state habeas trial court’s

findings of fact. The TCCA’s statement rejecting the trial court’s

conclusions of law as not supported by the record fails to inform

whether the TCCA accepted or rejected, in whole or in part, the

factual findings of the trial court based on that record.

       On the Craker/Micheaux continuum, the situation presented in

the instant case is closer to the Micheaux end, as in that case the

TCCA neither adopted nor incorporated the proposed findings of fact

made by the state habeas trial court.              Micheaux, 944 F.2d at 232.

In addition, the facts found by the state habeas trial court in

this case are directly inconsistent with the TCCA’s denial of

habeas relief.       Id.     We agree with Walbey that it would be an

unreasonable application of federal law to deny relief under

Wiggins in the light of the state habeas trial court’s findings

that    Walbey’s    trial    counsel    had      failed   to    investigate    the

mitigation defense and that, if presented, the amount of mitigation

evidence available would have influenced the verdict of the jury.

See Wiggins, 123 S. Ct. at 2536-44.           Nevertheless, as the TCCA did

not adopt the factual findings of the habeas trial court, and as

those factual findings are directly inconsistent with the TCCA’s

denial    of   relief,      this   case     is    legally      indistinguishable

from Micheaux and Singleton.           Accordingly, we conclude that the

state    habeas    trial    court’s   factual     findings     did   not   survive

appellate review, so that the district court did not err when it



                                        5
failed to defer to those findings in denying habeas relief to

Walbey.

      Our review cannot end here, however.       Our having established

that the TCCA did not adopt the factual findings of the state

habeas trial court presents the question whether the TCCA resolved

all disputed factual issues in its opinion denying habeas relief.

We   must    therefore   ascertain   whether    counsel’s     actions       were

“strategic     and   reasonable   are    questions   of   fact.    .    .    .”

United States v. Cockrell, 720 F.2d 1423, 1426 (5th Cir. 1983).

Whether the performance of Walbey’s trial counsel was deficient

with respect to investigating defense strategies or preparing

defense witnesses is inseparable from a factual determination

whether trial counsel’s testimony before the state habeas trial

court was credible.

      The opinion of the TCCA, which simply rejected the trial

court’s     conclusion   of   ineffective    assistance     of   counsel     as

unsupported by the record, is not sufficiently plain to allow a

federal court to infer that the TCCA made factual findings that

defense counsel was credible and that his investigation of the

mitigation defense was adequate.            As it contains no specific

factual findings or reasoning to support its ultimate conclusion,

the terse opinion of the TCCA here is the functional equivalent of

a denial without written order.      And, a federal court may not infer

from a denial without written order that the state appellate court



                                     6
necessarily resolved all factual issues against the petitioner.

Goodwin v. Johnson, 132 F.3d 162, 182, 184 n.17 (5th Cir. 1998).

       As the state habeas trial court’s proposed factual findings

did not survive appellate review, and as the opinion of the TCCA

did not resolve the factual dispute regarding trial counsel’s

credibility and his investigation of the mitigation defense, we

must remand to the district court for it to conduct a de novo

evidentiary    hearing     into   Walbey’s     claims    that   counsel   was

ineffective for those asserted failures at the punishment phase of

his trial.     See Singleton, 178 F.3d at 385.             Accordingly, the

judgement of the district court denying Walbey’s habeas application

under § 2254 is vacated, and the case is remanded to that court

with   instructions   to    conduct   a   de   novo     evidentiary   hearing

consistent with this opinion.

VACATED and REMANDED with instructions.




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