     Case: 13-10344      Document: 00512821510         Page: 1    Date Filed: 10/31/2014




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

                                      No. 13-10344
                                                                                Fifth Circuit

                                                                              FILED
                                                                        October 31, 2014
                                                                         Lyle W. Cayce
                                                                              Clerk
ANTHONY GLENN WALKER,

                                                 Petitioner–Appellant,

versus

WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                                 Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:11-CV-1055




Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Anthony Walker is a Texas state inmate who filed a federal habeas



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 13-10344
corpus petition to challenge his convictions of robbery and cocaine possession.
He appeals an order finding his claim procedurally defaulted under Ex parte
Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1996). We reverse and remand.


                                        I.
      Walker was convicted by a jury of two counts of aggravated robbery and
one count of possession of cocaine and was sentenced to thirty-five years for
the robberies and two years for the drug offense. On direct appeal, he asserted
that the trial court erred by denying his motion to suppress the victims’ in-
court and out-of-court identifications because the pretrial identification proce-
dure was impermissibly suggestive in violation of his due-process rights. The
Texas Court of Appeals rejected his argument, and the Texas Court of Criminal
Appeals (“TCCA”) denied his request to file an out-of-time petition for discre-
tionary review. Walker then filed three state habeas petitions, one for each
conviction. The TCCA found his identification claim “not cognizable because
it could have been, but was not raised on direct appeal.”
      Walker next filed the instant federal habeas petition. In his report, the
magistrate judge observed that, under Gardner, claims that could have been
raised on direct appeal, but instead are raised for the first time on state habeas
review, are procedurally barred. He added that the Gardner rule is an ade-
quate and independent state ground capable of barring federal habeas review.
He found that the rule applied to Walker’s identification argument because
Walked had failed to file a timely petition for discretionary review in the TCCA.
The district court adopted the magistrate judge’s findings and dismissed the
petition.   Walker appealed, and we granted a certificate of appealability
(“COA”) on the sole question of whether the Gardner rule is an adequate and
independent state ground where a constitutional issue was raised on direct
appeal but not in a petition for discretionary review.
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                                    No. 13-10344
                                        II.
      We review de novo the adequacy and independence of a state procedural
rule. Reed v. Scott, 70 F.3d 844, 846 (5th Cir. 1995). A rule is adequate if it
(1) “was firmly established at the time it was applied” and (2) is “strictly or
regularly followed by the cognizant state court . . . [and] strictly or regularly
applied evenhandedly to the vast majority of similar claims.” Id. (alteration
and omission in original) (emphasis omitted) (quoting Amos v. Scott, 61 F.3d
333, 339 (5th Cir. 1995)). A rule is independent “if the last reasoned state court
opinion clearly and expressly indicates that its judgment is independent of fed-
eral law.” Id. (footnote omitted). “We presume the adequacy and independence
of a state procedural rule when the state court expressly relies on it in deciding
not to review a claim for collateral relief,” but the applicant can rebut this pre-
sumption by showing that the “rule is not ‘strictly or regularly followed.’”
Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995) (quoting Johnson v. Missis-
sippi, 486 U.S. 578, 587 (1988)).
      We have previously held that the Gardner rule is adequate and indepen-
dent where a constitutional issue is not raised on direct appeal, e.g., Aguilar v.
Dretke, 428 F.3d 526, 535 (5th Cir. 2005), but we have not considered a case in
which the issue was raised on direct appeal but not in a petition for discretion-
ary review. Walker urges that the Gardner rule is not adequate in the latter
context, and the state concedes this point, noting that the district court made
its Gardner determination sua sponte.
      The state “acknowledges that the record before this Court does not sup-
port a finding that the TCCA’s imposition of the Gardner bar in this specific
context . . . was ‘firmly established’ at the moment it was applied here.” Fur-
ther, “solely for purposes of the present appeal,” the state “is not prepared to
argue that the TCCA’s use of the Gardner bar in this specific circumstance was
‘strictly or regularly followed’ by that court, as of the time it was invoked.” The
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                                      No. 13-10344
state concludes that “the Court could reasonably conclude—on this record—
that the district court was incorrect in its procedural ruling regarding the
Gardner bar.”
       The caselaw supports the parties’ shared position that the Gardner rule
was not adequate as of the date it was applied to Walker’s state habeas peti-
tions. In Gardner, the applicant had not raised his claim at all on direct review,
and the court did not purport to announce a rule extending beyond that situa-
tion. 1 Later Texas cases applying the Gardner rule have addressed similar
situations and have not mentioned discretionary review at all. 2 Moreover, in
a pre-Gardner case addressing a different procedural issue, we noted the
absence of “any Texas authority clearly establishing that . . . the claims made
. . . in [a] federal habeas [petition] would be foreclosed from consideration on
state habeas under [Texas Code of Criminal Procedure] article 11.07 merely
because of the fact that he failed to timely seek discretionary direct review in
the [TCCA].” Bautista v. McCotter, 793 F.2d 109, 111 n.2 (5th Cir. 1986).
       Accordingly, where a constitutional issue was raised on direct appeal but
not in a petition for discretionary review, the Gardner rule was not adequate
as of the date it was applied to Walker’s state habeas petitions, May 11, 2011.
See Ex Parte Walker, No. WR-75,625-01, 2011 WL 1817625, at *1 (Tex. Crim.
App. May 11, 2011) (per curiam). We reverse the order finding his claim pro-
cedurally defaulted.




       1See Gardner, 959 S.W.2d at 191 (“Under these circumstances, we hold applicant
waived any right he may have had to complain in this proceeding . . . .” (emphasis added)).
       2 See, e.g., Ex parte Nelson, 137 S.W.3d 666, 667–68 (Tex. Crim. App. 2004); Ex parte
Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004); Ex parte Ramos, 977 S.W.2d 616, 617
(Tex. Crim. App. 1998).
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                                        No. 13-10344
                                              III.
       The state asks us to deny Walker’s claim instead of remanding. As the
state notes, however, our appellate review is limited to the issues on which a
COA has been granted. Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). 3
We granted a COA on the sole question of whether the Gardner rule is an ade-
quate and independent state ground in cases where a constitutional issue was
raised on direct appeal but not in a petition for discretionary review. There-
fore, the appropriate course of action is to remand to allow the district court to
decide the merits of Walker’s claim.
       REVERSED and REMANDED.




       3 The state cites two cases for the proposition that we can reach the merits despite the
limited COA, but neither controls here. In Pape v. Thaler, 645 F.3d 281, 287 (5th Cir. 2011),
the state appealed, so no COA was necessary. In Amos v. Thornton, 646 F.3d 199, 203 (5th
Cir. 2011) (per curiam), we granted a COA on the issue of whether the applicant’s “claim that
he suffered a violation of his constitutional right to a speedy trial,” not just on the procedural
issue.
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