IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

m 98-20248 Summary Calendar _______________

JAMES EDWARD HAGGERTY, Petitioner-Appellant, VERSUS

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. _________________________

Appeal from the United States District Court for the Southern District of Texas (H-96-CV-3939) _________________________

December 6, 1999

Before SMITH, BARKSDALE, and a firearm. STEWART, Circuit Judges. A preliminary revocation hearing was held PER CURIAM:* in August 1995. The main evidence was affidavits of two officers of the San Augustine James Haggerty appeals the denial of his Police Department, establishing that a .22 petition for writ of habeas corpus. We reverse caliber pistol, among other items, was stolen and remand. during a burglary at the Whitton Building in San Augustine, Texas. I. Haggerty is serving a sentence on his 1990 Chief Deputy Larry Saurage swore that he conviction of burglary of a building and was had been informed by a confidential informant released on parole in November 1993. State that Haggerty was the burglar; that the stolen officials alleged that in July 1995, he violated pistol was in Laura Coleman’s possession; that rules 2 and 5 of the conditions of his parole by Coleman was questioned and stated that committing a burglary, unlawfully possessing Haggerty and Ricky Borders came to her a firearm as a convicted felon, and possessing house and wanted to sell a pistol, which she purchased after she was told the gun belonged to Borders; that Coleman turned the pistol over to Saurage; and that the pistol was * Pursuant to 5TH CIR. R. 47.5, the court has identified later as the one taken during the determined that this opinion should not be burglary. Officer Lynn Lyons, meanwhile, published and is not precedent except under the swore that she had been contacted by a limited circumstances set forth in 5TH CIR. R. confidential informant who was in possession 47.5.4. of a .22 caliber pistol that the informant The hearing officer found the evidence thought to have been stolen and that she had insufficient to support the burglary allegation obtained from Haggerty, Borders, and an but found that Haggerty had possessed a pistol unidentified white male who waited in a in violation of rules 2 and 5. The Board of vehicle, and that the pistol was identified as the Pardons and Paroles revoked Haggerty's one stolen during the burglary. parole.

At the revocation hearing, Coleman and Haggerty moved to reopen the revocation Lyons were called as witnesses; Borders had proceedings, po inting to the lack of evidence been subpoenaed but failed to appear. that the pistol was found in his possession. He Because Saurage was out of town, the state noted that Coleman testified that she bought submitted his affidavit in lieu of live testimony, the pistol from Borders and that Haggerty had and the hearing officer found good cause to nothing to do with the sale; that Borders’s disallow cross-examination and confrontation testimony was important and that no of Saurage. Admitted into evidence were the explanation was given for Borders’s failure to preliminary hearing report; an indictment appear; and that Saurage’s affidavit charging Haggerty with burglary of a building; contradicted Coleman’s testimony about what Saurage’s affidavit; and the subpoena served Borders said and about what Coleman told on Saurage. Saurage. Haggerty argued that the state had failed to prove that he knew the pistol was In his affidavit, Saurage averred that stolen, and his parole could not be revoked Coleman stated that she had purchased the based merely on his presence during the sale. pistol from Haggerty and Borders and that In November 1995, the Board of Pardons and Borders told him that on the night of the Paroles granted Haggerty’s motion to reopen burglary he met Haggerty, who had the gun in to take Saurage’s live testimony, noting that his possession. Borders said that they sold the the findings were not supported by a gun to Coleman for crack cocaine and told preponderance of the evidence or were Coleman that the pistol belonged to Borders. contrary to law, that the police officer was not present at the hearing, and that there were no Lyons testified that he had been contacted indicia of reliability to support his affidavit. by Saurage to meet a man regarding a stolen firearm, that Saurage had retrieved a stolen At the re-opened revocation hearing, weapon from a confidential informant, and that Saurage testified, live, to the following: A it was identified by the victim as the pistol confidential informant told him that a stolen stolen during the burglary. Coleman testified gun had been sold to Coleman; Coleman told that Haggerty and Borders had come to her him that she purchased the gun from Haggerty apartment to sell a gun and that she bought the and Borders; Borders told him that Haggerty gun from Borders for $20, that when she was in possession of the gun, that Borders and learned the gun was stolen, she turned it over Haggerty went together to Coleman’s to police, and that she told Saurage that apartment, told Coleman the gun was Borders had sold her the gun and that, Borders’s, and sold the gun to Coleman for although Haggerty had accompanied Borders crack cocaine; and that Coleman runs a crack during the sale, Haggerty was not involved in house and is a known crack dealer. Haggerty the sale of the gun. testified that Coleman had no reason to lie at the prior revocation hearing, that he was not Haggerty testified that a third man, “Gary,” involved in the possession of the firearm, and tried to sell the pistol to him and that Borders that he did not believe that Borders told told Gary that he knew a place to get rid of the Saurage that Haggerty was involved in the sale pistol. Haggerty accompanied Borders to of the gun, because Haggerty had spoken with Coleman’s apartment and witnessed Borders Borders approximately one month after the selling the gun to Coleman. He testified that first revocation hearing, and Borders had he never possessed the gun and denied any denied giving Saurage such a statement. involvement in its sale.

2 The hearing officer again concluded that statements bore sufficient indicia of reliability, Haggerty had violated rules 2 and 5 by and whether the error in denying unlawfully possessing the pistol. In May 1996, confrontation, if any, was harmless. the Board of Pardons and Paroles revoked Haggerty’s parole. In June 1996, Haggerty filed a second motion to reopen, asserting that there was no evidence or affidavit to support Saurage’s testimony about what Borders had said, that Borders was subpoenaed to testify but failed to appear without explanation, that Saurage’s hearsay testimony was contradicted by Coleman’s testimony under oath, and that the hearing officer improperly credited Saurage’s testimony over Coleman’s.

II. In November 1996, after properly exhausting state habeas opportunities, Haggerty, proceeding pro se and in forma pauperis, filed a

petition in federal court, attaching a copy of his state habeas application as his allegations and moving to strike Saurage’s affidavit, essentially challenging its substance.

The court granted the state’s motion for summary judgment, determining in pertinent part that the hearing officer had good cause to allow Borders’s hearsay statements to be introduced through the testimony of Saurage and Coleman, despite the hearing officer’s failure to make an explicit good-cause finding, and concluded that Haggerty's due process rights had not been violated by the use of Saurage’s and Coleman’s’s hearsay statements or “by the use of Borders’ hearsay statements because Haggerty, represented by counsel, did not object or otherwise assert his right to confront and cross-examine Borders,” and because the record showed that statements by Borders would have been “cumulative and repetitive of other evidence, primarily Coleman’s live testimony.”

The court therefore dismissed Haggerty's § 2254 petition with prejudice and denied him a certificate of appealability (“COA”). This court granted a COA on the questions of whether Haggerty adequately asserted his right to confront and cross-examine Borders, whether good cause existed to disallow such confrontation and cross-examination of Borders, whether Borders’s hearsay

3 III. whether good cause existed), that Borders’s Because Haggerty filed his § 2254 petition statements implicating Haggerty in possessing after the effective date of the Antiterrorism the gun had a high degree of trustworthiness, and Effective Death Penalty Act (“AEDPA”), because, through his statements, Borders AEDPA applies to his appeal.1 Although implicated himself in the crime of selling the AEDPA created a standard of review for state pistol to obtain drugs, and that there was no court decisions rendered on the merits, see error, because the statements were properly

(d), the § 2254(d) standard admitted. is not applicable to federal constitutional claims that were not adjudicated on the merits V. in state court, and we review such claims The Due Process Clause requires that, de novo.2 before parole is revoked, a preliminary hearing be held “to determine whether there is Although Haggerty raised the issue, the probable cause or reasonable ground to believe state habeas court did not address whether he that the arrested parolee has committed acts was denied the right to confront and cross- that would constitute a violation of parole examine Borders. Because the state habeas conditions.” See Morrissey v. Brewer, 408 court made no findings or conclusions on this U.S. 471, 485 (1972). The parolee then is issue, our review is de novo. See Nobles, 127 entitled to a final revocation hearing, at which F.3d at 416. We also review a summary he has “an opportunity to be heard and to judgment de novo, using the same standard show, if he can, that he did not violate the applicable in the district court. See Matagorda conditions, or, if he did, that circumstances in County v. Law,

(5th Cir. mitigation suggest that the violation does not 1994). warrant revocation.”3

IV. The minimum procedural due process Haggerty argues that he adequately requirements for the final revocation hearing asserted his right to confront and cross- include (1) written notice of the alleged examine Borders, that good cause did not exist violations of parole; (2) the disclosure to the to disallow his confrontation and cross- parolee of evidence against him; (3) the examination of Borders, that Borders’s opportunity to be heard in person and to hearsay statements lacked a sufficient indicia present witnesses and documentary evidence; of reliability, and that Saurage’s account of (4) the qualified right to confront and cross- what Borders told him contradicted Coleman’s examine adverse witnesses unless the hearing live testimony that Haggerty had nothing to do officer specifically finds good cause for not with the sale or possession of the gun. allowing confrontation; (5) a neutral and Haggerty asserts that it was the state’s detached hearing body; and (6) a written obligation to produce all witnesses it had on statement by the factfinders as to the evidence whose testimony it was going to rely to obtain relied on and reasons for revoking parole. See a revocation, and that the error in denying Morrissey, 408 U.S. at 489; McBride, confrontation was not harmless error. 118 F.3d at 437. The finding of a parole violation should be based on verified facts and The state argues that Haggerty did not be “informed by an accurate knowledge of the object to the hearsay testimony (obviating the parolee’s behavior.” Morrissey, 408 U.S. need for the hearing officer to determine at 484. A revocation hearing, however, is not a criminal prosecution; “the process should be flexible enough to consider evidence including 1 See Lindh v. Murphy,

, 336 letters, affidavits, and other material that (1997); Green v. Johnson,

, 1120 would not be admissible in an adversary (5th Cir. 1997). 2 3 Nobles v. Johnson,

(5th Morrissey, 408 U.S. at 487-88; see McBride Cir. 1997), cert. denied,

(1998). v. Johnson,

(5th Cir. 1997).

4 criminal trial.”

. In Farrish, 836 F.2d at 979, this court Despite this lowered standard, hearsay upheld a monetary judgment in favor of a testimony remains problematic, because it parolee against the Mississippi Commissioner “prevents the parolee from confronting and of Corrections for the denial of due process at cross-examining the declarant,” and “unrel iable a revocation hearing. The only evidence that hearsay undermines the accuracy of the fact- he had committed the alleged parole violation finding process.” Farrish v. Mississippi State was an informant’s statement introduced Parole Bd.,

(5th Cir. 1988). through a police officer’s testimony.

at “[C]ourts considering the admissibility of 978. Farrish had requested the informant’s hearsay in revocation proceedings have presence at the hearing.

. We adopted an approach which balances the determined that the statements were inherently parolee’s interest in confronting a particular unreliable because, if believed, they “shifted a witness against the government’s good cause potential conviction for drug dealing from [the for denying it, particularly focusing on the informant] to Farrish.”

. We held ‘indicia of reliability’ of a given hearsay that this was “a classic example of when the statement.”

Hence, in carving out a good- use of hearsay impermissibly violates a right to cause exception to the general rule that confront and cross-examine the declarant.”

hearsay cannot be employed even in a parole hearing, the courts have hewn narrowly, In McBride,

, we held finding good cause only when strong “indicia that the petitioner’s right to confront and of reliability” of the hearsay exist SSwhich cross-examine an adverse witness was violated indicia they have found primarily in cases in when his parole was revoked on the sole basis which field tests or other objective measures of hearsay testimony. McBride was charged are being reported by hearsay.4 with committing an aggravated assault while on parole, but ultimately a jury acquitted him.

. Based on the purported 4 See United States v. Grandlund,

, aggravated assault, the parole board charged 811 (5th Cir. 1996), clarifying United States v. that McBride had violated his parole by failing Grandlund (“Grandlund I”),

, 510 to obey state law. Id. at 434. The alleged (5th Cir. 1995); see also United States v. Kindred, victim did not testify at the revocation hearing.

(5th Cir. 1990) (urinalysis);

A police officer testified concerning what United States v. Bell,

(8th Cir. 1986) the victim had told him about the assault, and (same); United States v. Penn,

(11th parole was revoked based on the officer’s Cir. 1983) (same). In Penn, the court noted that hearsay testimony and over objection.

[t]he difficulty and expense of procuring live witnesses would not suffice as an excuse for The facts of these cases virtually mirror admitting hearsay testimony in a criminal those here. The district court did not apply the trial, but the Court tenders this as an precedent to this case, however, because it example of a situation in which hearsay concluded that Haggerty had waived his due could be admissible in a probation process rights by failing to object to Saurage’s revocation proceeding. Likewise, the Court hearsay statements or to assert his right to recommends the conventional substitutes for confront and cross-examine Borders. hearsay: affidavits, depositions and documentary evidence. These conventional VI. substitutes tend to bear the “indicia of A. reliability” upon which the Court has focused in the related context of determining The state argues that the right of whether a given hearsay statement should be admissible in a criminal trial. (...continued)

. Of course, this does not assist the state appears not in the affidavit or other testimony of here, because the hearsay on which it depends the witness, but only in the unsubstantiated second- (continued...) hand report of an involved law officer.

5 confrontation and cross-examination is an make a statement to Saurage. These, affirmative right that must be invoked by the collectively, must be understood appropriately parolee, and asserts that there is no to have raised Haggerty’s objection to the “indication” that Haggerty objected to testimony. Saurage’s hearsay testimony about what Borders said or to the violation of his right to confront and cross-examine Borders. The state concedes that Haggerty’s lack of objection regarding Borders’s statements could be explained by Borders’s failure to appear at the hearing, despite a subpoena. The state notes, however, that Haggerty did not request, in his motion to reopen, that Borders be subpoenaed to attend the new hearing, and asserts that Haggerty waived any objection by failing to object to the hearsay nature of Borders’s information that came in through Saurage’s testimony at the reopened hearing.

This argument is unavailing. In McBride,

, we explained that while that defendant’s “invocation of his Sixth Amendment rights was not as clear as it could have been[,] we do not believe that preserving the Sixth Amendment right to confront and cross-examine adverse witnesses requires parolees to invoke their right in only one way.”

Haggerty made robust, if somewhat indirect, objections to the use of Saurage’s hearsay testimony. In his motion to reopen filed after the original revocation hearing, Haggerty argued that Borders’s testimony was “very important” to the question of whether he and Borders or just Borders sold the pistol to Coleman. He noted that Borders had been subpoenaed but did not appear and that no explanation for his absence was offered. He argued that Borders’s statement that he and Borders met on the night of the burglary; that he had the gun with him; and that they then sold it to Coleman could not be true, because the record showed that the sale of the pistol did not occur until after the burglary.

In his motion to reopen the reopened hearing, Haggerty asserted that Saurage’s testimony about Borders’s statement was false and unsupported by any written statement or affidavit. He noted again that Borders had been subpoenaed but failed to appear, and he asserted that Borders told him that he did not

6 B. cocaine, and that Borders had told Coleman Even assuming, arguendo, that Haggerty that the gun belonged to him. Based on failed to assert his confrontation right or to Saurage’s testimony, the hearing officer object to the admission of Borders’s hearsay, questioned the credibility of Coleman’s the district court’s failure explicitly to find testimony that she had purchased the gun for good cause for not allowing confrontation is $20. reviewable for plain error.5 Under FED. R. CRIM. P. 52(b), we can correct forfeited errors Coleman testified that Haggerty and when the appellant shows the existence of an Borders came to her apartment and wanted to error, that it was clear or obvious, and that it sell a pistolSSbut also that Borders said the affected his substantial rights, see United gun was his. She testified that she purchased States v. Calverley,

, 162-64 (5th the gun from Borders for $20 and that Cir. 1994) (en banc), and when the error Haggerty had nothing to do with the sale. seriously affects the fairness, integrity, or public reputation of judicial proceedings, see Haggerty testified that a third man United States v. Olano,

, 735-36 possessed the gun and that he merely (1993). accompanied Borders to Coleman’s apartment during the sale, but had nothing to do with the A parolee’s right to confront an adverse possession or sale of the pistol. Haggerty’s witness may be disallowed on a finding of testimony is consistent with the police report, good cause. Grandlund I,

. In which indicated that a confidential informant determining whether good cause exists, the told Lyons that she had possession of a pistol parole board must weigh the defendant’s she had obtained from Haggerty, Borders, and interest in confronting the witness against the an unidentified white male who waited in a state’s interest in denying confrontation. See vehicle.

“A critical consideration is the indicia of reliability of the challenged evidence.”

The court concluded that there was good The failure to make a specific finding of good cause to allow the hearsay statements of cause “may require reversal in most instances, Borders through Saurage’s and Coleman’s but may be found to be harmless error where testimony, that the hearing officer determined good cause exists, its basis is found in the that the statements were reliable, and that record, and its finding is implicit in the Haggerty was allowed to testify about what [hearing officer’s] rulings.”

(internal Borders told him. The court also noted that footnotes and citations omitted). Borders’s statements were “cumulative and repetitive of other evidence, primarily The revocation of Haggerty’s parole was Coleman’s live testimony.” Saurage’s based, in pertinent part, on Saurage’s testimony about what Borders said was not testimony that Borders told him that Haggerty cumulative or repetitive of Coleman’s possessed the gun, that they had decided to testimony, except to the extent that each sell the gun to Coleman in exchange for crack testified that Borders and Haggerty went to Coleman’s apartment and that Borders said the gun was his. 5 See Crawford v. Falcon Drilling Co., Inc., The hearing officer found that there were

, 1123 (5th Cir. 1997); Cf. United sufficient indicia of reliability to support the States v. Alaniz-Alaniz,

(5th alleged parole violations based on Saurage’s Cir. 1994) (assuming that the district court’s testimony that Borders said that Haggerty was failure to conduct the good-cause balancing test and use of hearsay testimony, admitted without in possession of the gun, that they went objection at a federal prisoner’s revocation hearing, together to Coleman’s apartment, and that was plain error, but concluding that Alaniz had they sold the gun to Coleman for crack failed to demonstrate that the district court violated cocaine; Coleman’s statement to police that his substantial rights by relying on the testimony). she purchased the gun from Borders and Haggerty; and her testimony that Haggerty

7 was present during the sale of the gun. There why its interest in denying confrontation of is, however, no indication that Borders’s Borders outweighed Haggerty’s right of statement that Haggerty was in possession of confrontation. Borders had been subpoenaed the gun was reliable. to appear at the first revocation hearing but failed to do so, and there was no explanation Although Haggerty was allowed to testify for that failure. There is no indication that as to his version of events and to cross- Borders was subpoenaed to appear at the examine Saurage, he was not allowed to reopened hearing, nor allegation that Haggerty confront BordersSSthe only source of the procured Borders’s absence. evidence that Haggerty possessed the gun. Even the hearing officer’s finding that Saurage In Belk v. Purkett,

(8th was more credible than Haggerty or Coleman Cir. 1994), the court rejected as irrelevant the does not satisfy the good-cause balancing test. state’s argument that the parolee had failed to request the presence of adverse witnesses at the revocation hearing. “For the final Saurage’s credibility was not the issue. It revocation hearing . . ., it is incumbent upon may be that Borders told Saurage that the state authorities to produce the witnesses Haggerty had possession of the gun, but upon whose testimony said authorities rely to Haggerty did not have the opportunity to strip a parolee of his liberty. Only when the confront Borders about that statement, which hearing officer specifically finds good cause was the only evidence that Haggerty possessed for disallowing confrontation is the state the pistol and was admitted for the truth of the relieved of its burden.”

We agree. matter asserted. The record does not support a finding of Haggerty specifically denied possessing the good cause, nor is such a finding implicit in the pistol. There was no live testimony or hearing officer’s rulings. Accordingly, even admissions that corroborated Borders’s assuming that Haggerty did not properly statement that Haggerty did so. The only object, the hearing officer’s failure to make a element of Borders’s statement that was specific finding of good cause to disallow corroborated was that he and Haggerty went confrontation of Borders and to weigh to Coleman’s apartment, Borders told her the Haggerty’s interests against the state’s interest gun was his, and Borders sold the gun to her. is reversible error. Borders’s statement that he and Haggerty were going to sell the pistol directly Concluding that the state violated contradicts Coleman’s and Haggerty’s live Haggerty’s Sixth Amendment right to confront testimony. and cross-examine Borders during his parole revocation hearing, we REVERSE the denial This uncorroborated hearsaySSwhich, even of habeas relief and REMAND so the district if spoken by Borders, would have been said in court can return this matter to the parole board suspect circumstances, in which it cannot be for a sufficient parole revocation hearing. reliably asserted that Borders would have been speaking truthfullySSstrays rather far from the core situation in which the good-cause exception is appropriateSStestimony about verifiable, objective drug testing, and far too from any suggested usage of affidavit or other testimony given under oath by the witness directly to the court. In essence, the hearsay testimonySSBorders’s statement that Haggerty possessed the pistolSSbears little or no indicia of reliability.

Moreover, the state advances no reason

8