     Case: 08-31174     Document: 00511048961          Page: 1    Date Filed: 03/11/2010




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

                                                  FILED
                                                                           March 11, 2010

                                       No. 08-31174                    Charles R. Fulbruge III
                                                                               Clerk

DAVEON MCCULLOUGH,

                                                   Petitioner–Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent–Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:05-cv-00674


Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.
PER CURIAM:*
        Daveon McCullough, pro se, appeals the district court’s denial of his
petition for a writ of habeas corpus. A Louisiana jury convicted McCullough of
second degree murder and sentenced him to life without the possibility of parole.
McCullough argues that the state court infringed his right to due process when
it excluded statements provided by his co-perpetrators that did not implicate
him in the murder, in violation of Chambers v. Mississippi, 410 U.S. 284, 302
(1973).

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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      Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we may not grant a writ of habeas corpus with respect to a claim
decided on the merits in state court unless the state court’s judgment “resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States.”     28 U.S.C § 2254(d)(1).        Because McCullough has not
demonstrated that the Louisiana court unreasonably applied Chambers to the
facts of his case, we affirm the denial of his petition.
               I. FACTUAL AND PROCEDURAL HISTORY
      The details of the brutal murder giving rise to this case, in which a group
of young men bludgeoned to death an eighty-two year old woman, are thoroughly
recounted in the Louisiana Third Circuit Court of Appeals’s opinion affirming
McCullough’s conviction on direct review. See State v. McCullough, 774 So. 2d
1105, 1108–12 (La. Ct. App. 2000). At McCullough’s trial, the State introduced
testimony from Jerry Joseph and William Wansley, both of whom implicated
McCullough in the murder. No other State witnesses testified to McCullough’s
involvement, and the State did not introduce any physical evidence tying
McCullough to the crime.
      Joseph was connected to the murder by Fredrick Gradley, who confessed
his involvement to police and implicated four others, but did not mention
McCullough’s involvement. Upon his arrest, Joseph provided a statement to
police that inculpated four others, including McCullough. Joseph subsequently
testified for the State in McCullough’s trial pursuant to a favorable plea
agreement, and provided the only first-hand account of McCullough’s
involvement.
      The State also introduced the statement of Wansley, who briefly shared
a jail cell with McCullough. Wansley testified that when he asked whether
McCullough was entitled to a trial separate from his co-perpetrators,

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McCullough stated that he believed he could “beat the charge,” but admitted his
involvement in what he described as a gang initiation attack. The State did not
promise Wansley any leniency for his testimony, and Wansley testified that he
knew nothing of the murder before this conversation with McCullough.
      McCullough proclaimed his innocence, asserted an alibi defense, and
accused Joseph and Wansley of lying. To bolster his arguments, McCullough,
through pre-trial motions in limine, sought to introduce the out-of-court
statements of Gradley, Fredrick Bush, Cedric Howard, and two others charged
with the murder after anticipating that these declarants would assert the Fifth
Amendment privilege against self-incrimination if called as witnesses.1 Gradley,
Bush, and Howard had all provided statements to police, none of which
implicated McCullough in the crime.
      Gradley’s statement to detectives inculpated himself and four others, and
not only led to the issuance of arrest warrants for those he named, but was also
admitted into evidence at his trial, which resulted in a conviction for first degree
murder and a sentence of death. Howard, however, denied his involvement in
the murder, and instead told police that he had overheard several others discuss
their plans to commit the crime before it occurred. Likewise, Bush, whom
McCullough described as his “half-brother,” gave two statements—one
sworn—that attempted to deflect attention from his involvement. He reported
that Joseph and one other individual confessed their involvement after the fact
and threatened to falsely implicate others if the police caught them. None of
these three mentioned McCullough at any point.
      The state court deferred ruling on the motions until trial, at which point
it denied all five after commenting that it would be unfair to introduce the
statements because the State did not have the chance to cross-examine the

      1
       The Louisiana Court of Appeals limited its consideration to Gradley’s, Bush’s, and
Howard’s statements, and they are the only statements currently before us.

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declarants. McCullough then called Gradley, Bush, and Howard as witnesses,
and all three immediately asserted their Fifth Amendment rights and refused
to testify. McCullough’s counsel made no attempt to compel their testimony, but
instead argued, to no avail, for the introduction of the declarants’ prior
statements to police.
      After his conviction, McCullough argued to the Louisiana Court of Appeals
that the trial court erroneously denied his motions in limine. The state appellate
court recognized that under Chambers, a defendant’s fundamental right to
present witnesses in his own defense may require a court to admit hearsay
testimony given “considerable assurance of [the statements’] reliability.”
McCullough, 774 So. 2d at 1124 (alteration in original). It held, however, that
because McCullough had failed to establish the reliability of the statements he
sought to admit, the trial court did not err when it excluded them. Id. at 1125.
Subsequently, the Louisiana Supreme Court denied McCullough’s petition for
state post-conviction relief. See State v. McCullough, 806 So. 2d 669 (La. 2002).
      McCullough then filed a petition for federal habeas relief in the Western
District of Louisiana, asserting, inter alia, that the state trial court judge
violated his right to put forth a defense and therefore denied him due process of
law under Chambers. The magistrate judge recommended that the district court
grant McCullough habeas relief after concluding that all three excluded
statements had sufficient indicia of reliability to meet the Chambers standard
and tended to support McCullough’s asserted innocence. The magistrate judge
also concluded that McCullough’s state trial court judge erred because the
prosecutor’s lack of ability to cross-examine witnesses was “not a valid reason
for excluding the hearsay statements,” and that the state trial court judge should
have questioned the witnesses’ assertion of privilege and inquired into the
reliability of the proffered statements.



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       Initially, the district court adopted the magistrate judge’s report and
recommendation in its entirety, and granted McCullough a conditional writ of
habeas corpus. After two days, however, the district court withdrew the grant
for reconsideration, and issued a denial approximately ten months later. After
identifying two possibilities for finding that the state court violated
McCullough’s right to due process—that (1) the declarants did not have a Fifth
Amendment privilege and were available to testify, or (2) the state court should
have admitted their testimony as an exception to the hearsay rule—the district
court discredited both.
       Specifically, the district court held that the trial judge had no affirmative
duty to probe a witness’s assertion of a privilege when the assertion is not
facially spurious and where the objecting party’s attorney fails to raise the issue.
The district court also held that the state court of appeals did not unreasonably
apply Chambers, nor did it erroneously conclude that the declarants’ statements
were not reliable enough to give rise to a due process violation. McCullough
requested a certificate of appealability (“COA”), which the district court denied.
We, however, subsequently granted a COA on the sole issue of whether the
exclusion of the statements deprived McCullough of his right to put forth a
defense in violation of the Due Process clause.               Pursuant to that grant,
McCullough appealed the district court’s denial of his habeas petition.2
                           II. STANDARD OF REVIEW
       We review the district court’s findings of fact for clear error and its
conclusions of law de novo. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.
2003) (citing Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002)). Because the
state court ruled on the merits of McCullough’s claim, AEDPA governs our


       2
        McCullough’s petition also asserted a Brady violation and a claim for ineffective
assistance of counsel. The district court denied his petition on those grounds as well, and
McCullough failed to secure a COA as to those issues.

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review and provides that we “must defer to a state court’s resolution of questions
of law and mixed questions of law and fact unless the state court’s ‘adjudication
of the claim . . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.’” Fields v. Thaler, 588 F.3d 270, 273
(5th Cir. 2009) (quoting 28 U.S.C. § 2254(d)(1)). “A state court’s decision is
contrary to clearly established federal law if it ‘applies a rule that contradicts the
governing law set forth’ in Supreme Court cases or ‘if the state court confronts
a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [the Court’s]
precedent.’”   Id. (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000))
(alteration in original).
      Likewise, “[a] state court’s decision involves an unreasonable application
of clearly established federal law if the state court ‘correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 407–08). The Supreme Court
has held that “[f]or this standard to be satisfied, the state court decision must
have been objectively unreasonable, . . . not just incorrect or erroneous.” Wiggins
v. Smith, 539 U.S. 510, 511 (2003) (internal citation omitted). We review only
the reasonableness of the state court’s ultimate decision, and not the written
opinion explaining that decision. Schaetzle, 343 F.3d at 443 (citing Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)).
                                III. DISCUSSION
      McCullough argues that under the Supreme Court’s decision in Chambers,
the state court’s exclusion of the three proffered statements to the police violated
his right to put forward a defense. In Chambers, a state court barred the
introduction of evidence that another individual had confessed to the murder for
which the petitioner had been charged. 410 U.S. at 291–92. Specifically, the

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petitioner called the declarant, the declarant repudiated his previous four
confessions, and the state court barred the petitioner’s attempts to challenge the
repudiation with evidence of the declarant’s prior out-of-court statements. Id.
at 290–91.
      The Supreme Court reversed, noting first that the extent to which the
declarant’s “sworn confession tended to incriminate him, it tended also to
exculpate” the petitioner, because the state’s evidence precluded the theory that
more than one person committed the murder. Id. at 297. Additionally, although
the petitioner offered hearsay statements, he did so “under circumstances that
provided considerable assurance of their reliability,” including that “each of [the
petitoner’s] confessions was made spontaneously to a close acquaintance shortly
after the murder had occurred,” that “each one was corroborated by some other
evidence in the case,” that “each confession . . . was in a very real sense
self-incriminatory and unquestionably against interest,” and finally, that the
declarant “was present in the courtroom and was under oath,” and therefore
“[h]e could have been cross-examined by the State, and his demeanor and
responses weighed by the jury.”      Id. at 300–01.       The Court held that the
exclusion of “critical” exculpatory evidence accompanied by considerable proof
of reliability denied the petitioner “a trial in accord with traditional and
fundamental standards of due process.” Id. at 302.
      The Chambers Court explicitly limited its holding, stating that “[i]n
reaching this judgment, we establish no new principles of constitutional law. . . .
Rather, we hold quite simply that under the facts and circumstances of this case
the rulings of the trial court deprived [the petitioner] of a fair trial.” Id. at
302–03. Years later, the Court described Chambers as “an exercise in highly
case-specific error correction,” and noted that “the holding of Chambers—if one
can be discerned from such a fact-intensive case—is . . . that erroneous
evidentiary rulings can, in combination, rise to the level of a due process

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violation.”   Montana v. Egelhoff, 518 U.S. 37, 53 (1996).     We have further
construed Chambers as standing “for the limited proposition that ‘certain
egregious evidentiary errors may be redressed by the due process clause.’” Little
v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998) (quoting Barefoot v. Estelle, 697
F.2d 593, 597 (5th Cir. 1983)).
      McCullough has not shown that the state court unreasonably applied the
Chambers holding to the facts of his case. We have described the petitioner’s
trial in Chambers as “a palpable miscarriage of justice” because “the state court
had excluded evidence that strongly pointed the finger of guilt at [the
declarant],” and the declarant’s “inculpation        spelled   [the petitioner’s]
exculpation.” Maness v. Wainwright, 512 F.2d 88, 91 (5th Cir. 1975). In this
case, however, none of the excluded testimony clearly exculpated McCullough.
      Gradley’s sworn confession to police implicated himself, Joseph, and three
others in the group murder, but did not mention McCullough’s involvement.
Significantly, McCullough does not argue that Gradley told police that
McCullough was not involved; rather, he simply points out that Gradley never
mentioned his name. It is unclear from the record whether Gradley intended to
exhaustively list his co-perpetrators, and Joseph’s statement to police—which
implicated McCullough and three others not named by Gradley—suggests that
he did not.
      Similarly, Bush’s and Howard’s statements do not exculpate McCullough.
Howard mentioned that he overheard several individuals planning the murder,
and although he did not mention that McCullough helped plan the crime, he also
did not testify as to those who actually carried out the offense. Likewise, Bush’s
statement recounted a conversation in which two individuals admitted their
participation in the murder after it occurred. Although Bush did not mention
McCullough, he also failed to mention Gradley—the first to confess his
involvement to the police—which detracts from the weight of McCullough’s

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assertion that his absence from Bush’s statement exculpated him from the
crime.
       Additionally, the statements do not share the same “considerable
assurance of . . . reliability” that the Supreme Court found persuasive in
Chambers. 410 U.S. at 300. Bush and Howard gave their statements in an
attempt to exculpate themselves; in other words, they were not “in a very real
sense self-incriminatory and unquestionably against interest.” Id. Howard did
not provide a sworn statement, and although Bush gave one of his two
statements to police while under oath, McCullough describes Bush as his “half
brother,” which, if anything, raises questions as to the reliability of Bush’s
failure to mention McCullough’s involvement.
       Gradley’s statement presents a closer question, as his sworn confession to
police clearly went against his penal interest. The police found his statement
reliable enough to issue warrants for the arrest of those he implicated, and the
state court found it reliable enough to introduce against him at his trial. On the
other hand, Gradley’s assertion of his Fifth Amendment privilege rendered him
unavailable as a witness and thus not subject to cross-examination, which
prevented the State from examining the veracity or accuracy of his confession.3
These distinctions convince us that McCullough has not demonstrated that the
state court unreasonably applied Chambers’s narrow holding.


       3
         McCullough also makes a conclusory remark that the trial judge erred by failing to
question Gradley, Bush, and Howard as to whether the had correctly asserted their Fifth
Amendment privileges. The three declarants had already been convicted and sentenced to
death for their participation in the murder, and because Gradley and Howard’s convictions
and sentences had been affirmed by the Louisiana Supreme Court, it appears that they may
not have had a valid Fifth Amendment privilege to assert. See State v. Smith, 687 So. 2d 529,
542 (La. Ct. App. 1996). At trial, however, McCullough did not object to their assertion of
privilege, and on appeal, he does not cite any caselaw suggesting that the trial judge had an
affirmative duty to investigate the declarants’ assertion more thoroughly. Assuming that an
error occurred, however, we note that it would not rise to the level of a due process violation
warranting habeas relief, largely because McCullough has not argued that any testimony at
trial by declarants would exculpate him.

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                              IV. CONCLUSION
      After reviewing the state courts’s ultimate conclusion on McCullough’s
Chambers claim, we cannot say that it “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”             28 U.S.C §
2254(d)(1).   Because the statements McCullough proffered had neither the
exculpatory effect nor the indicia of reliability necessary to the Chambers
holding, McCullough has not demonstrated a due process violation.              We
therefore affirm the district court’s order denying his petition for habeas relief.
      AFFIRMED.




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