Banks v. Dretke ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 1, 2004
UNITED STATES COURT OF APPEALS August 25, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-40058
DELMA BANKS, JR.,
Petitioner-Appellee-Cross-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant-Cross-Appellee.
Appeals from the United States District Court
for the Eastern District of Texas
(5:96-CV-353)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
In 1980, Delma Banks, Jr. was convicted in Texas state court
of capital murder and sentenced to death. After pursuing his state
remedies, Banks filed for federal habeas relief in 1996 (before the
effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA)). Among the numerous issues raised, he claimed: for two
of the State’s witnesses, the prosecution withheld material
exculpatory impeachment evidence, in violation of Brady v. Maryland,
373 U.S. 83 (1963). The district court denied relief for Banks’
conviction, but granted it for the sentence. Because it had not
been properly pleaded, the district court refused to rule on Banks’
Brady claim based on the prosecution’s suppression of a pre-trial
interview transcript for witness Charles Cook; that transcript had
not been produced until the federal habeas proceeding and had been
admitted in evidence at the subsequent evidentiary hearing.
On appeal, in a 78-page opinion addressing numerous issues, we
vacated the habeas relief for the sentence and denied a certificate
of appealability (COA) for the guilt phase concerning, inter alia:
whether Banks’ Cook-transcript Brady claim was properly pleaded; or
whether, in the alternative, it had been tried by consent of the
parties pursuant to Federal Rule of Civil Procedure 15(b) (amendment
of pleadings to conform to evidence “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties”).
Banks v. Cockrell, No. 01-40058 (5th Cir. 2002)(unpublished).
The Supreme Court held: Banks was entitled to habeas relief
for the sentence; and, for the Cook-transcript Brady claim, a COA
“should have issued” “[a]t least as to the application of Rule
15(b)” to the district court evidentiary hearing. Banks v. Dretke,
124 S. Ct. 1256, 1280 (2004).
Because the Supreme Court granted that COA, we address:
whether Rule 15(b) applies to issues raised in a pre-AEDPA district
court evidentiary hearing; and, if it does, how the Rule applies
here. Because the Rule applies and the district court has not
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addressed its application to the Cook-transcript Brady claim, we
REMAND to district court.
I.
The Supreme Court’s remand concerns only the discrete
procedural issue of whether Rule 15(b) applies to claims tried by
consent in pre-AEDPA federal habeas proceedings. (The Court stated:
“Banks’ case provides no occasion to consider Rule 15(b)’s
application under the AEDPA regime”. Id. at 1280 n.20.) The facts
and procedural history for Banks’ underlying state conviction and
post-conviction proceedings have been exhaustively addressed both
by this court and the Supreme Court. See Banks, 124 S. Ct. 1256;
Banks, No. 01-40058. Accordingly, we recite only the facts and
fairly complex procedural history relevant to the Supreme Court’s
COA-grant at hand.
In 1980, Banks was convicted for the murder of Richard
Whitehead in Texas state court and sentenced to death. Officers
investigating Richard Whitehead’s death had turned their attention
to Banks when they learned that Richard Whitehead had been seen with
him on 11 April 1980 near Nash, Texas; Richard Whitehead’s body was
found on 14 April. On 23 April, after receiving a tip from a
confidential informant that Banks was traveling to Dallas, Texas,
to meet an individual and obtain a weapon, officers followed Banks
to Dallas, where he visited a residence. As Banks was leaving
Dallas, officers stopped his vehicle and found a handgun; officers
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then returned to the residence Banks had visited and interviewed
Charles Cook there. While at the residence, officers recovered a
second handgun; Cook told the officers that Banks had left that
second handgun with him days earlier. Tests identified the second
handgun as the Whitehead murder weapon.
Prior to trial, Banks’ attorney sought information concerning
the identity of the informant who had told officers that Banks would
be traveling to Dallas, but the prosecution claimed the information
was privileged. The prosecution eventually advised Banks’ counsel
that “[the State] will, without necessity of motions provide you
with all discovery to which you are entitled”.
During the guilt phase of Banks’ trial, witnesses testified to
seeing Banks and Richard Whitehead together in a green Mustang on
11 April (shortly before Richard Whitehead’s death). Cook
testified: Banks arrived in Dallas in a green Mustang at about 8:15
a.m. on 12 April and stayed until 14 April; and, during this period,
Banks admitted to having “kill[ed] the white boy for the hell of it
and take[n] his car and come to Dallas”. Banks, 124 S. Ct. at 1264.
Cook testified further that Banks then abandoned the Mustang and
left Dallas by bus. On cross-examination, Cook stated three times
that he had not talked with anyone about his testimony. (As
discussed infra, it was discovered in the course of this habeas
proceeding, however, that Cook had at least one “pretrial practice
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session”, at which officers and prosecutors coached him about his
trial testimony.) Cook did not testify at the penalty phase.
At the guilt phase, another of the State’s key witnesses,
Robert Farr, corroborated Cook’s account. Farr also testified
against Banks at the penalty phase. (It was revealed during this
federal habeas proceeding that Farr had been the confidential
informant who told officers about Banks’ intention to go to Dallas
and that Farr had been paid for that information.)
After pursuing available state remedies, Banks filed the
instant federal habeas application in March 1996, asserting, inter
alia, a Brady claim based on the prosecution’s failure to produce
exculpatory evidence, including “information that pointed to another
suspect in the murder, information that linked prosecution star
witness Charles Cook to Robert Farr ... and information that would
have revealed Robert Farr as a police informant and Mr. Banks’
arrest as a ‘set-up’”. (Emphasis added.) Banks also claimed:
“prosecutors’ actions in concealing from the jury Cook’s enormous
incentive to testify in a manner favorable to the State require that
this Court reverse Mr. Banks’ conviction and sentence”; and “[t]he
prosecution’s failure to disclose that Cook stood to profit so
enormously by his testimony, narrowly evading a possible life term
in prison, requires the reversal of Mr. Banks’ conviction and
sentence”. (Emphasis added.) It appears that Cook’s alleged
“incentive to testify in a manner favorable to the prosecution” is
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the “deal”-with-the-prosecution referred to by the Supreme Court,
as quoted infra. E.g., Banks, 124 S. Ct. at 1269.
The magistrate judge ordered an evidentiary hearing to address,
inter alia, Banks’ claims that the State had withheld “crucial
exculpatory and impeaching evidence” concerning Cook and Farr.
Banks v. Johnson, No. 5:96-CV-353, at 1 (E.D. Texas 5 March 1999).
Prior to that hearing, the magistrate judge ordered the prosecution
to produce its files from Banks’ trial. Discovered in those files
was a 74-page transcript of a pre-trial interview of Cook, conducted
by law enforcement officials and prosecutors in September 1980,
shortly before trial.
The Cook transcript revealed
the State’s representatives had closely
rehearsed Cook’s testimony. In particular, the
officials told Cook how to reconcile his
testimony with affidavits to which he had
earlier subscribed recounting Banks’s visit to
Dallas. (“Your [April 1980 statement is
obviously screwed up.”); (“[T]he way this
statement should read is that ... ”); (“[L]et
me tell you how this is going to work.”);
(“That’s not in your [earlier] statement”).
Although the transcript did not bear on Banks’s
claim that the prosecution had a deal with
Cook, it provided compelling evidence that
Cook’s testimony had been tutored by Banks’s
prosecutors.
Banks, 124 S. Ct. at 1269 (citations omitted; emphasis added).
Again, the Supreme Court’s discussion of the alleged “deal” between
Cook and the prosecution appears to be in reference to Banks’ claim
6
in his federal habeas petition that Cook had an incentive to testify
favorably for the prosecution.
The Cook-interview transcript was listed in Banks’
identification of exhibits to be introduced at the district court
evidentiary hearing. At that hearing, Banks’ counsel introduced the
transcript in evidence without objection and questioned the
assistant district attorney at the time of trial about whether, at
trial, the prosecution should have allowed Cook to testify that,
pre-trial, he had not talked to anyone about his testimony (the
transcript proved otherwise). Banks’ post-evidentiary-hearing brief
on an unrelated issue noted that discovery “dislodged” the Cook-
interview transcript and claimed the transcript demonstrated that
key trial testimony was coached and inaccurate.
Banks’ proposed findings of fact and conclusions of law for the
magistrate judge (for the report and recommendation to the district
judge) referenced the Cook transcript several times. Inter alia,
Banks: asserted that, by suppressing the transcript, prosecutors
breached their promise of full disclosure; described the withholding
of the transcript; proposed the court find the transcript was in
possession of the prosecution pre-trial, but not produced to counsel
until habeas discovery in 1999; and suggested the court conclude
that Banks’ trial was rendered fundamentally unfair by the
transcript’s suppression.
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The magistrate judge recommended granting habeas relief on
Banks’ Brady claim concerning Farr, but denying relief on the Brady
claim concerning Cook’s alleged deal with the prosecution. The
report and recommendation did not mention, however, the suppression
of the Cook-interview transcript.
Banks objected to the report and recommendation because, inter
alia, it failed to mention the transcript’s non-production; because
of its suppression, Banks claimed he was entitled to relief from his
conviction. The district court adopted the magistrate judge’s
recommendation and granted habeas relief for the penalty phase of
Banks’ trial, but denied relief for the guilt phase. In doing so,
the district court overruled some of Banks’ objections to the
magistrate judge’s report and recommendation; however, the district
court did not address Banks’ objection to the magistrate judge’s
failure to address the suppression of the Cook-interview transcript.
Banks moved to amend the judgment on the basis that the
suppression of the Cook-interview transcript was material, but the
issue had not been addressed by either the magistrate judge or
district judge. In response to that motion, the State contended,
for the first time, that a Brady claim based on the suppression of
the Cook transcript was not before the court because it was not
properly pleaded under Rule 15(a)(amendments generally). Banks
replied that the Brady claim in his petition, which alleged the
State withheld impeachment evidence regarding Cook, was sufficient
8
to state such a claim and the Cook-interview transcript was merely
evidence supporting it. (Banks’ petition had mentioned Cook’s
testimony after claiming the prosecution failed to turn over
material exculpatory evidence, in violation of Brady.) Banks
further contended that “the issue of whether trial prosecutors
suppressed material impeachment evidence concerning Charles Cook
[was] tried at the [district court] Evidentiary Hearing” (emphasis
added); but, he did not specifically rely on Rule 15(b)(amendment
of pleadings to conform to the evidence “[w]hen issues not raised
by the pleadings are tried by express or implied consent of the
parties”). The district court denied the motion to amend the
judgment, holding: Banks raised the Cook-transcript Brady claim for
the first time in the findings of fact and conclusions of law
proposed for the magistrate judge; and this was not proper pleading
under Rules 15(a) or (d)(supplemental pleading).
In his COA-request in district court, Banks claimed, inter
alia, that, pursuant to the governing standard for whether to grant
a COA, jurists of reason could debate whether the district court
correctly held the Cook-transcript Brady claim was not properly
before the district court. Banks contended the claim was properly
pleaded; and, for the first time, he relied alternatively on Rule
15(b). The district court denied a COA on the Cook-transcript Brady
claim: it ruled the claim was not properly raised in the first
instance; but, although it noted Banks’ reliance on Rule 15(b), it
9
did not address whether the Cook-transcript Brady claim had been
tried by express or implied consent of the parties.
The State appealed the habeas relief granted for the sentence;
Banks cross-appealed, requesting a COA on, inter alia: “Whether the
court below erred when it refused to review the merits of the due
process claim concerning the suppression of a lengthy pretrial
statement of the state’s key witness [Cook] because Banks did not
formally amend the petition after disclosure of the statement”. In
his appellate brief, in support of that COA-request, Banks again
contended: his Cook-transcript Brady claim was properly pleaded in
the first instance; and, in the alternative, a claim based on the
transcript was tried by consent of the parties and, therefore, was
properly pleaded under Rule 15(b). The State responded, inter alia,
that, “although there was a federal evidentiary hearing, there was
certainly never any ‘trial’ regarding the instant Brady
allegations”. It also claimed, inter alia, that an evidentiary
hearing did not waive exhaustion or procedural default defenses.
For this COA-request, we held the district court had correctly
determined that Banks did not properly plead the Cook-transcript
Brady claim because: after discovering the transcript, Banks should
have sought leave to amend his petition; and issues first raised in
objections to a magistrate judge’s report and recommendation are not
properly before the district court. Banks, No. 01-40058, at 52; see
United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).
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Concerning the alternative Rule 15(b) basis offered in support of
the COA-request, we stated: “Banks has not pointed to any authority
supporting his contention that, for Rule 15 purposes, an evidentiary
hearing equates with a trial”. Banks, No. 01-40058, at 52 (emphasis
added). Accordingly, we denied a COA, holding it was not debatable
among jurists of reason whether the district court was correct in
denying Banks’ motion to amend the judgment, the denial of which is
reviewed for abuse of discretion. Id.
Before the Supreme Court, however, the State changed its
position concerning Rule 15(b) and “concede[d] ... that the question
whether Rule 15(b) extends to habeas proceedings is one ‘jurists of
reason would find ... debatable’”. Banks, 124 S. Ct. at 1279. The
Court reversed our COA-denial for the Cook-transcript Brady claim:
“We see no reason why an evidentiary hearing should not qualify [as
a trial for Rule 15(b) purposes] so long as the [State] gave ‘any
sort of consent’ and had a full and fair ‘opportunity to present
evidence bearing on th[e] claim’s resolution’”. Id. at 1280 (citing
Withrow v. Williams, 507 U.S. 680, 696 (1993)). The Court held
that, “at least as to the application of Rule 15(b)”, a COA “should
have issued”. Id.
II.
The Supreme Court’s COA-holding prompts several procedural
questions: the scope of its COA-grant; whether Rule 15(b) applies
to pre-AEDPA federal habeas evidentiary hearings; and, if it does,
11
how it applies here. To assist with resolution of these issues, we
obtained supplemental briefing from the parties.
A.
Because Banks’ federal petition was filed pre-AEDPA, that Act
is not applicable to his claims. Id. at 1270 n.9 (citing Lindh v.
Murphy, 521 U.S. 320, 336-37 (1997)). He was required, however, to
obtain a COA, pursuant to AEDPA, in order to appeal a denied claim.
See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997); 28 U.S.C.
§ 2253(c)(1)(A).
Banks contends the Supreme Court’s COA-grant encompasses both
whether his Cook-transcript Brady claim was properly pleaded in the
first instance and whether, in the alternative, that claim was tried
by consent of the parties. Although Banks has consistently urged
(district court, here, and Supreme Court) that his Cook-transcript
Brady claim was properly pleaded, the Supreme Court’s COA-grant does
not encompass that issue. Concerning the COA, the Court’s opinion
almost exclusively addressed Rule 15(b)’s application to pre-AEDPA
federal habeas evidentiary hearings and, as quoted in part above,
held:
To obtain a certificate of appealability, a
prisoner must “demonstrat[e] that jurists of
reason could disagree with the district court’s
resolution of his constitutional claims or that
jurists could conclude the issues presented are
adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). At least as to the application of
Rule 15(b), this case surely fits that
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description. A certificate of appealability,
therefore, should have issued.
Banks, 124 S. Ct. at 1280 (emphasis added).
We denied a COA on whether Banks’ Cook-transcript Brady claim
was properly pleaded in the first instance; because the Supreme
Court did not hold to the contrary, our decision on that issue
remains the law of the case. Accordingly, the remand from the
Supreme Court is limited to whether Rule 15(b) applies to pre-AEDPA
federal habeas evidentiary hearings and, if it does, its effect
here.
B.
Rule 15 governs amendments to, and supplemental, pleadings.
Pursuant to the Supreme Court’s COA-grant, we decide de novo whether
Rule 15(b) applies to pre-AEDPA federal habeas proceedings. See,
e.g., Mann v. Scott, 41 F.3d 968, 974 (5th Cir. 1992) (noting our
plenary review for questions of federal law in habeas proceedings).
Concerning amendments to the pleadings to conform to the
evidence, Rule 15(b) states:
When issues not raised by the pleadings are
tried by express or implied consent of the
parties, they shall be treated in all respects
as if they had been raised in the pleadings.
Such amendment of the pleadings as may be
necessary to cause them to conform to the
evidence and to raise these issues may be made
upon motion of any party at any time, even
after judgment; but failure so to amend does
not affect the result of the trial of these
issues.
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FED. R. CIV. P. 15(b)(emphasis added). As quoted above, that part of
the Supreme Court’s opinion granting the COA has provided guidance
on whether Rule 15(b) applies to pre-AEDPA federal habeas
evidentiary hearings: “We see no reason why an evidentiary hearing
should not [equate with a trial for Rule 15(b) purposes] so long as
the [State] gave ‘any sort of consent’ and had a full and fair
‘opportunity to present evidence bearing on the claim’s
resolution’”. Banks, 124 S. Ct. at 1280 (quoting Withrow, 507 U.S.
at 696).
In so stating, the Court noted it had twice referenced Rule
15(b)’s application in federal habeas proceedings: Withrow, 507
U.S. at 696 (assuming, without analysis, that Rule 15(b) applied);
Harris v. Nelson, 394 U.S. 286, 294 n.5 (1969)(noting use of Rule
15(b) in habeas proceedings is noncontroversial). The Court doubted
that Rule 15(b)’s application “would undermine the State’s
exhaustion and procedural default defenses” under the pre-AEDPA
scheme. Banks, 124 S. Ct. at 1280. (As partly discussed above,
although our prior opinion noted that the State raised these
defenses against application of Rule 15(b), our COA-denial did not
require addressing that point. See Banks, No. 01-40058, at 52.) I
addition, the State concedes that, although the Supreme Court has
not expressly held Rule 15(b) applies to pre-AEDPA federal habeas
evidentiary hearings, our court has applied that Rule in such
proceedings. For example, Mosley v. Dutton, 367 F.2d 913, 916 (5th
14
Cir. 1966), considered issues that had been tried by the parties’
consent in a habeas proceeding as if raised in the pleadings
(citing Rule 15(b)). See also Streeter v. Hopper, 618 F.2d 1178,
1180 (5th Cir. 1980)(reviewing grant of habeas relief and
considering one of the issues litigated by parties’ consent) (citing
Rule 15(b)). We have also noted the potential application of Rule
15(b) to pre-AEDPA habeas proceedings in instances where the Rule
was ultimately not invoked to amend the petition. See James v.
Whitley, 926 F.2d 1433, 1435 n.3 (5th Cir. 1991)(noting claims may
have been tried by consent of parties at federal habeas evidentiary
hearing pursuant to Rule 15(b), but not reaching issue); Robinson
v. Wade, 686 F.2d 298, 304 n.11 (5th Cir. 1982)(holding “Federal
Rules of Civil Procedure govern amendments of petitions for habeas
corpus”, and noting certain exceptions, including Rule 15(b), to the
requirement that claims in habeas proceedings can be added only by
amendment).
In Banks’ pre-AEDPA federal habeas evidentiary hearing, the
Cook-transcript was in evidence; it had not been produced by the
State until during this habeas proceeding. Moreover, the State does
not claim an exhaustion or procedural bar defense to the Cook-
transcript Brady claim. Accordingly, on this record, Rule 15(b)
applies to the Cook-transcript Brady claim as addressed in Banks’
evidentiary hearing.
C.
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The State contends that, although Rule 15(b) may generally
apply to issues tried by consent in a habeas evidentiary hearing,
it does not apply here because, in district court, Banks contended
only that the Cook-transcript Brady claim was tried by express
consent of the parties and did not rely on implied consent. In
support, the State cites Banks’ COA-request in district court (the
first time Banks cited Rule 15(b)); that request quoted the text of
Rule 15(b) regarding trial by express or implied consent and then
stated: “This issue of the state’s suppression of impeachment
material concerning Charles Cook was ‘expressly tried’at the ...
evidentiary hearing”. (Emphasis added.) That COA-request in
district court also notes: the Cook transcript was admitted in
evidence without objection; and Banks’ counsel questioned the
prosecutor and other witnesses extensively about its content.
Banks’ COA-request to this court claimed: “The district court
erred in failing to adjudicate [Banks’ claim that] the prosecution’s
suppression of Charles Cook’s lengthy pretrial statement withheld
material impeachment evidence and violated due process”. For
support, Banks cited, inter alia, Rule 15(b) and contended the State
was on notice he was asserting a Cook-transcript Brady claim.
1.
The State contends that, because Banks did not explicitly raise
“implied consent” in district court, the implied consent issue at
hand cannot be considered for the first time on appeal. See Johnson
16
v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999)(holding contention not
raised by habeas petitioner in district court cannot be considered
for the first time on appeal from that court’s denial of habeas
relief); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997)(“A
district court must deny the COA before a petitioner can request one
from this court.”) We disagree that Banks’ COA-request in district
court relied exclusively on the express consent portion of Rule
15(b).
First, Banks quoted the language of Rule 15(b) which addresses
both express and implied consent. Second, although the COA-request
in district court claimed the issue of the State’s suppression of
the Cook transcript was “expressly tried”, we do not understand that
to mean Banks was referring to express consent. Banks did not
contend the State had expressly consented to trial of the Cook-
transcript Brady claim; instead, he stated the claim had been
“expressly tried”. At issue is whether the trial of the claim was
based on the State’s implied consent. Moreover, Banks’ reliance on
the admission of the transcript in evidence without objection and
the questioning of the trial prosecutor about the transcript
supports implied, rather than express, consent. Accordingly,
because Banks relied in district court on the Cook-transcript Brady
claim’s being tried by implied consent, we consider this issue. (In
any event, even if, arguendo, Banks had not relied on implied
17
consent in district court, the Supreme Court’s COA-grant addressed
implied consent and cured Banks’ alleged default.)
2.
We decline, however, to decide in the first instance whether
that Brady claim was tried by implied consent of the parties. The
State concedes that, if the issue of implied consent is properly
before us, we should remand because the district court never
addressed it.
Although on 6 June 2004 we denied Banks’ motion to remand to
district court for factfinding on this issue, we did so in order to
obtain supplemental briefing to consider further this and other
questions relevant to the Supreme Court’s remand. In the light of
that briefing and related factors commending the district court’s
considering the consent question in the first instance, we conclude
that remand to the district court is required in order for it (1)
to determine whether Banks’ Cook-transcript Brady claim was tried
by implied consent of the parties; and (2) if it was, to decide that
claim.
III.
For the foregoing reasons, this matter is REMANDED to district
court for further proceedings consistent with this opinion.
REMANDED
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