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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-2614

GARY GRAHAM,
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

August 28, 1996
Before KING, GARWOOD and JOLLY, Circuit Judges.
PER CURIAM:
Petitioner-appellant Gary Graham (Graham), convicted in Texas
court of the capital murder during robbery of Bobby Lambert and
sentenced to death, appeals the district court's denial of his
third habeas petition under 28 U.S.C. § 2254.1 We conclude that
1The district court denied certificate of probable cause
(CPC). We carried Graham's application for CPC with the case, and
directed full briefing, and oral argument, on the merits. We now
grant CPC. All other undisposed of motions pending in this Court
are denied.

Graham has not adequately exhausted his state remedies as required
by section 2254(b) & (c), and, despite the state's having waived
exhaustion below, we determine, in the exercise of our discretion,
not to accept the waiver, and we accordingly vacate the district
court's judgment and remand the case to the district court with
directions to dismiss the petition without prejudice for failure to
exhaust state remedies.
Context Facts and Procedural History
We generally summarize the background and procedural history
of this case as follows.
About 9:30 p.m. on May 13, 1981, in the parking lot of a
Safeway Food Store in Houston, Texas, Bobby Lambert, a customer at
the store, was shot and killed by a lone black male who was
attempting to rob him. The perpetrator promptly left the scene
without being apprehended. Following his arrest for another
offense about a week later, Graham, then seventeen years old, was
charged with the capital murder of Lambert, and was convicted and
sentenced to death in October 1981 following a jury trial in the
182nd Judicial District of Harris County, Texas.2 At the guilt-
innocence stage of the trial, among other evidence presented by the
state, Wilma Amos, Daniel Grady (since deceased), and Bernadine
Skillern (now Benton) testified to the shooting incident. However,
2Subsequent to his conviction and sentence, Graham pleaded
guilty to and was sentenced to twenty year concurrent sentences for
ten different aggravated robberies committed May 14, 15, 16, 18,
19, and 20, 1981.
2

Skillern was the only trial witness to identify Graham as the
shooter. The other witnesses did not testify that Graham was not
or did not resemble the perpetrator, but merely stated they did not
get a good enough look at, or sufficiently recall, the
perpetrator's face to make an identification. Skillern testified
she identified Graham in a May 26 photographic display and in a May
27 police station "line-up," and she identified him in open court.
The defense presented no evidence at the guilt-innocence stage.
However, defense counsel attacked Skillern's identification in
vigorous cross-examination of her,3 and in argument emphasized the
failure of the other witnesses to identify Graham and urged that
the evidence failed to show Graham was the perpetrator. At the
punishment stage, the state presented evidence that during the
period May 14 through May 20, 1981, Graham robbed some thirteen
different victims at nine different locations, in each instance
leveling either a pistol or a sawed-off shotgun on the victim. Two
of the victims were pistol-whipped, one being shot in the neck; a
sixty-four-year-old male victim was struck with the vehicle Graham
was stealing from him; and a fifty-seven-year-old female victim was
kidnaped and raped. There was also testimony that Graham's
reputation in the community for being a peaceful and law-abiding
citizen was bad. The only defense evidence was the testimony of
3Defense counsel also moved to suppress Skillern's testimony
on the basis that the photographic display and the line-up were
unduly suggestive. After an extensive evidentiary hearing out of
the presence of the jury, this motion was denied.
3

Graham's stepfather and grandmother, generally as to his good and
nonviolent character.
On his direct appeal, Graham's conviction and sentence were
affirmed by the Texas Court of Criminal Appeals in an unpublished
per curiam opinion. Graham v. State, 671 S.W.2d 529 (Tex. Crim.
App. 1984) (table). Certiorari review in the United States Supreme
Court was not sought.
Graham, represented by new counsel, filed a state habeas
petition in July 1987, contending, inter alia, that he was
incompetent to be executed, that the Texas capital punishment
scheme was constitutionally defective for various reasons and did
not allow the jury to adequately consider mitigating evidence,
including his youth, and that he received ineffective assistance of
counsel. Counsel was alleged to be ineffective in numerous
respects, including the failure to adequately investigate and to
interview and call alibi witnesses, and not allowing Graham to
testify. A competency examination was conducted, and an
evidentiary hearing was held in January 1988 before state district
judge Shipley (who had not presided at Graham's trial) at which
Graham and other witnesses, including three alibi witnesses,
William Chambers, Mary Brown, and Dorothy Shield, testified, as did
also Graham's trial counsel, Ronald Mock and Chester Thornton. On
February 9, 1988, the state trial habeas court entered findings of
fact and conclusions of law in all respects adverse to Graham,
4

finding, among other things, that Graham was not incompetent, that
his counsel advised him not to testify but told him he had a right
to do so and that the decision was his, that Graham never told
counsel he wanted to testify, and that (inter alia):
"4.
Prior to trial, counsel [who had been appointed to
represent Graham June 12, 1981] reviewed the information
in the State's file several times.
5.
On numerous occasions prior to trial, counsel met
with the applicant and attempted to discuss the facts of
the case with him. The applicant stated only that he did
not commit the robbery-murder and that he had spent the
evening with a girlfriend whose name, appearance, and
address the applicant could not remember.
6.
Although defense counsel made numerous inquiries of
applicant, he did not give his defense counsel the names
of any potential alibi witnesses, nor did the applicant
tell his counsel where he had been and what he had been
doing on the night of the instant offense, May 13, 1981.
7.
No person ever presented himself to defense counsel
as an alibi witness, either before, during or after
trial.
8.
Specifically, the applicant did not furnish his
counsel with the names or addresses of Dorothy Shield,
Williams Chambers, Mary Brown, or Lorain [sic] Johnson as
potential alibi witnesses.
9.
This court finds that the testimony of William
Chambers, Mary Brown and Dinah Miller concerning Gary
Graham's whereabouts on May 13, 1981 is not credible
testimony.
10.
Gary Graham was aware that an investigator was
working with defense counsel in connection with the
defense of his case.
11.
Counsel for applicant hired an investigator, Merv
West, who assisted them in investigating and interviewing
possible defense witnesses."
The state habeas trial court concluded that in all respects Graham
5

had received effective assistance of counsel. The Court of
Criminal Appeals, in an unpublished per curiam order with reasons
issued February 19, 1988, denied habeas relief, essentially on the
basis of the habeas trial court's findings.
Shortly thereafter, Graham, through his new counsel, filed his
first federal habeas petition in the district court below. He
asserted, among other things, that his age at the time of the
offense constitutionally prevented his execution, that he was not
mentally competent to be executed, that the Texas capital
sentencing scheme did not allow adequate consideration of his youth
and other mitigating circumstances, and that his counsel was
ineffective in diverse respects including the following, viz:
failing to conduct adequate pretrial investigation, failing to
interview all the witnesses, failing to adequately cross-examine
Skillern, failing to bring forth alibi witnesses, failing to
develop a proper trial strategy, failing to call more than two
witnesses at sentencing, and failing to allow Graham to testify.
The district court denied relief and we denied CPC. Graham v.
Lynaugh, 854 F.2d 715 (5th Cir. 1988). We specifically reviewed
the allegations concerning ineffective assistance of counsel and
the state habeas court findings in respect thereto, id. at 721-22,
and concluded "that Graham has failed to overcome the presumption
that the state court's findings were correct." Id. at 722. The
Supreme Court in a per curiam order granted certiorari, vacated our
6

judgment and remanded the case to this Court "for further
consideration in light of Penry v. Lynaugh," 109 S.Ct. 2934 (1989).
Graham v. Lynaugh, 109 S.Ct. 3237 (1989). On remand, the same
panel of this Court, in part I of its opinion on remand, reinstated
all of its 1988 opinion except section IIB thereof (854 F.2d at
718-720) dealing with whether the Texas capital sentencing scheme
allowed adequate consideration of mitigating evidence, particularly
youth. Graham v. Collins, 896 F.2d 893, 894 (5th Cir. 1990). The
1990 panel decision went on to hold that the Texas capital
sentencing scheme, contrary to Penry, did not allow adequate
consideration of Graham's youth, and accordingly vacated his death
sentence. Id. at 898. We then took the case en banc and
ultimately affirmed the denial of habeas relief. Graham v.
Collins, 950 F.2d 1009 (5th Cir. 1992) (en banc). The en banc
Court specifically reinstated part I of the 1990 panel opinion (896
F.2d at 894), thus reinstating all of the 1988 panel opinion except
part IIB thereof (854 F.2d at 718-720). Id., 950 F.2d at 1013 n.4.
The en banc Court went on to reject Graham's contention that the
Texas capital sentencing scheme did not allow adequate
consideration of his mitigating evidence, particularly his youth.
Id. Accordingly, we reinstated our prior mandate affirming the
district court's dismissal of Graham's habeas petition. Id. at
1034. The United States Supreme Court subsequently affirmed,
addressing only the youth-Penry issue and holding that any claim
7

that the Texas capital sentencing scheme did not allow adequate
consideration of youth was barred under Teague v. Lane, 109 S.Ct.
1060 (1989). Graham v. Collins, 113 S.Ct. 892 (1993).4
On April 20, 1993, Graham, through counsel, filed his second
state habeas. In this petition, Graham first again urged that his
counsel was ineffective for failing to develop or present defense
evidence or meaningfully test the prosecution's evidence, and that
Graham had thus been "condemned to die for a crime that he almost
certainly did not commit." Graham also asserted that the trial
court's voir dire erroneously equated "deliberateness," as used in
the first punishment issue, with "intent" as relevant to guilt or
innocence. Finally, it was asserted that the punishment issues did
not adequately allow consideration of Graham's youth.5 This
petition was supported by a March 31, 1993, affidavit of the
investigator (West) retained by Graham's trial counsel; April 17,
1993, affidavits by Malcolm Stephens and wife Lorna Stephens that
they came on the crime scene just after the shooting, saw a young
black man run away (not followed in the lot by anyone in a car, as
4Later the same year, the Supreme Court in Johnson v. Texas,
113 S.Ct. 2658 (1993), where the Teague bar was inapplicable, held
that the Texas capital sentencing scheme allowed adequate
consideration of youth as a mitigating factor.
5The apparent basis for making this argument despite the
Supreme Court's decision in Graham was the theory that Graham, by
its reliance on Teague, did not apply except in federal habeas
actions. On February 19, 1993, the Supreme Court had granted
certiorari in the direct appeal case of Johnson v. Texas, 113 S.Ct.
1148 (1993), raising the youth-Penry issue.
8

Skillern had testified she followed the perpetrator) who was about
5'5" tall (a line-up chart indicated Graham was 5'9" tall);
affidavits of Wilma Amos (April 15, 1993) and Ronald Hubbard (April
18), who were present at the scene; affidavit of Mary Brown (April
18), Graham's wife; and affidavits of William Chambers (April 18),
Graham's cousin, Dorothy Shields (April 18), and Loraine Johnson
(April 18). Graham filed a supplement to his petition early the
morning of April 26 adding a claim that because he was actually
innocent his execution would be unconstitutional, relying on
Herrera v. Collins, 113 S.Ct. 853 (1993). This supplement was
supported by an April 26, 1993, affidavit of Malcolm Stephens. The
state filed a reply, supported by affidavits (including an April
21, 1993, affidavit of Mock, an April 22, 1993, affidavit of West,
and a March 26, 1993, affidavit of Skillern). Later the same day,
April 26, the state habeas trial court, Judge Shipley, entered
findings and conclusions, and supplemental findings, recommending
denial of relief. The court adopted its previous findings and
conclusions entered February 9, 1988, respecting Graham's first
state habeas,6 found that the April 18, 1993, alibi affidavits of
Chambers, Brown, Shield, and Loraine Johnson were "not credible,"
that West's March 31, 1993, affidavit, in light of his April 22,
1993, affidavit showing loss of memory, was "not reliable," that
6The only exception is that the court withdrew its previous
conclusion that Graham was procedurally barred from attacking the
Texas capital sentencing scheme.
9

Amos' April 15, 1993, affidavit "is not credible," that Hubbard and
the Stephenses did not see the actual shooting and their affidavits
do not undermine Skillern's identification,7 and that Skillern's
"testimony is credible." The court concluded that the allegations
of defective performance of counsel for failing to adequately
investigate, interview witnesses, and call alibi witnesses had
been rejected in the previous state habeas and hence need not be
considered again, and, alternatively, that neither defective
performance in any respect nor resultant prejudice was shown.8 The
court further concluded:
"6. The applicant's claim of actual innocence,
independent of any constitutional infirmity in his trial,
is not cognizable in state or federal habeas proceedings;
therefore, the applicant is not entitled to state or
federal relief based on such claim.
7. Alternatively, even assuming the applicant's
claim of actual innocence is cognizable, the applicant's
showing of `innocence' falls far short of the threshold
showing which would have to be made in order to trigger
its consideration and relief based thereon. Thus, the
applicant fails to show deficient performance, much less
harm, in counsels' representation at trial."
On April 27, 1993, the Court of Criminal Appeals denied habeas
7In his supplemental finding, Judge Shipley found that
Stephens' April 26 affidavit stating he had seen the true
killer----unnamed----several times in 1983 and 1985 was "suspect and not
credible" and that the affidavit's negative identification of
Graham from photographs of him was "not reliable."
8The court also concluded that the outcome of Johnson v.
Texas, a direct appeal case raising the youth-Penry issue that was
then pending before the Supreme Court, certiorari having been
granted February 19, 1993, Johnson v. Texas, 113 S.Ct. 1148 (1993),
would be immaterial under Teague because Graham's conviction and
sentence were already final.
10

relief in a per curiam order stating "The Court has reviewed the
record. The findings and conclusions entered by the trial court
are supported by the record and upon such basis the relief sought
is denied." Ex parte Graham, 853 S.W.2d 564, 565 (Tex. Crim. App.
1993), cert. denied, 113 S.Ct. 2431 (1993). Graham, on April 28,
1993, then filed a section 2254 petition with the district court
below; however, the Texas governor having granted Graham a thirty-
day stay of execution the same day, Graham then dismissed his
section 2254 petition without prejudice before the state could
answer it. Fed. R. Civ. Proc. 41(a)(1)(i). Also on April 28,
1993, Graham filed a petition for certiorari in the United States
Supreme Court seeking review of the April 27, 1993, order of the
Court of Criminal Appeals. Thereafter, Graham's execution was set
for June 3, 1993. On May 14, 1993, Graham filed with the Court of
Criminal Appeals a motion for reconsideration of its April 27,
1993, order. On May 24, 1993, the Supreme Court denied Graham's
petition for certiorari directed to the April 27, 1993, order of
the Texas Court of Criminal Appeals. Graham v. Texas, 113 S.Ct.
2431 (1993). On June 2, 1993, the Court of Criminal Appeals
overruled Graham's motion for reconsideration but ordered Graham's
execution "stayed for 30 days pending the resolution of Johnson v.
Texas by the United States Supreme Court." Ex parte Graham, 853
11

S.W.2d 565, 567 (Tex. Crim. App. 1993).9
On June 24, 1993, the Supreme Court issued its opinion in
Johnson v. Texas, 113 S.Ct. 2658 (1993), holding that the Texas
capital sentencing scheme adequately allowed consideration of the
defendant's youth as a mitigating factor.
Graham then filed in the Court of Criminal Appeals a motion to
continue the stay of execution and for remand to the state trial
court for an evidentiary hearing on his claims of ineffective
assistance of counsel, based on newly discovered evidence. In a
per curiam order issued July 5, 1993, the Court of Criminal Appeals
denied the motion to continue stay, and denied the motion for
remand without prejudice to presenting the claims to the state
9The June 2, 1993, order also states:
"In the instant cause, applicant filed a motion
requesting this Court reconsider our initial denial of
relief. See Tex.R.App.Proc 213(b). Applicant presents
four grounds for reconsideration. In his first ground,
applicant requests a stay of execution pending the
resolution of Johnson v. Texas, No. 92-5653 (U.S.Sup.Ct.,
pending). Secondly, applicant requests this Court file
and set his petition to determine the trial court's
reliance on Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct.
1060, 1070, 103 L.Ed.2d 334 (1989) (plurality opinion)
and Ex parte Acosta, 672 S.W.2d 470 (Tex.Crim.App. 1984).
Applicant's third and fourth grounds for reconsideration
in his petition concern constitutional protections
against the execution of an `innocent person.' Upon due
consideration, we refuse to consider the merits of
applicant's second, third and fourth grounds for
reconsideration. See Ex parte Graham, 853 S.W.2d 564
(Tex.Crim.App. 1993). However, on our motion and for
reasons which will become apparent, applicant's execution
is stayed. See Tex.R.App.Proc. 213(b)." Id. at 566.
12

trial court. Ex parte Graham, 853 S.W.2d 565 at 570-71 (Tex. Crim.
App. 1993). The Court of Criminal Appeals stated (id. at 571):
"Applicant has filed a Motion to Continue the Stay
of Execution and for Remand for Evidentiary Hearing on
Claim of Ineffective Assistance of Counsel in which
claims of ineffectiveness of counsel are made.1
With regard to Applicant's motion it is noted that
we have no allegation of ineffectiveness of counsel
properly pending before us. Such must be presented to
the trial court first and transmitted to this Court
pursuant to Art. 11.07, supra. . . . That article
requires all claims to first be presented to the trial
court and, following a fact finding procedure conducted
in that court, to be transferred to this Court. Since
Applicant has failed to present these claims to the trial
court, they are not properly before us at this time.
Accordingly, we will dismiss Applicant's Motion to
Continue Stay and Remand For an Evidentiary Hearing
without prejudice to file the claim in the appropriate
court.
Applicant's Motion is, therefore, dismissed without
prejudice to file his application in the trial court
pursuant to Art. 11.07, § 2, et seq., supra."
1. It is noted that Applicant alleged ineffective
assistance of counsel in an earlier writ application, an
evidentiary hearing was held and this Court denied relief
based on the findings of fact and conclusions of law
developed as a result of that hearing, at which hearing
counsel testified. Ex parte Graham (Tex.Cr.App. No.
17,568-01, delivered February 19, 1988). However,
Applicant contends that newly discovered or available
evidence relating to counsel's effectiveness casts doubt
on the efficacy of the fact finding process conducted at
that time. We express no opinion at this time on
Applicant's contentions given that the trial court is the
appropriate forum for the gathering and presentation of
factual matters under Article 11.07."
Graham's execution was set for August 17, 1993.
On July 21, 1993, Graham filed a civil suit in state court in
Travis County against the Texas Board of Pardons and Paroles (TBPP)
13

seeking an evidentiary hearing before that body on his request for
clemency based on his claim of actual innocence. After a July 27,
1993, hearing, the Travis County state district judge, on August 9,
1993, issued a temporary injunction requiring the TBPP to hold a
hearing on Graham's claim of innocence not later than August 10,
1993, or, in lieu thereof, to reschedule his execution until after
such a hearing. The TBPP did not hold such a hearing, but instead
filed a notice of appeal to the state court of appeals in Austin,
which appeal operated to supersede the trial court's order. On
August 13, 1993, the Austin Court of Appeals, on Graham's motion,
enjoined his execution pending resolution of the TBPP's appeal to
it. On August 16, 1993, the Court of Criminal Appeals, on Graham's
motion, stayed his execution "pending further orders by the Court."
On the same day, the Court of Criminal Appeals also denied motions,
filed by the district attorney of Harris County and the TBPP, for
leave to file with the Court of Criminal Appeals applications for
mandamus to require the Austin Court of Appeals to vacate its
injunction prohibiting Graham's execution. State ex rel Holmes v.
Third Court of Appeals, 860 S.W.2d 773 (Tex. Crim. App. 1993).
In the interim, Graham, through counsel, on July 22, 1993,
filed his instant section 2254 petition with the district court
below. The petition asserts only two grounds for relief: first,
that Graham is actually innocent of the offense, so is entitled to
relief under the opinions of five justices in Herrera v. Collins,
14

113 S.Ct. 853 (1993), that "the execution of an innocent person
would violate the Constitution"; and, second, that Graham was
denied effective assistance of counsel, in that counsel failed to
adequately investigate, particularly in failing to interview crime
scene witnesses named in the police report, failed to investigate
and present an alibi defense, failed to properly question witness
Amos, and failed to call Hubbard as a witness.10 Graham also moved
for an evidentiary hearing and for leave to undertake discovery.
Graham's petition was supported by numerous affidavits and
exhibits. Much of this supporting matter consisted of material not
previously submitted to the state courts. This "new" material
included the following: (1) a July 10, 1993, affidavit of Sherian
Etuk, who worked at the Safeway on the evening of May 13, 1981, and
saw the shooting, or its immediate aftermath, described the
perpetrator as a young black man not taller than 5'6" having a very
narrow face and light build, and declared she had been shown
"photographs" by the police, was never contacted by anybody on
behalf of Graham, and, examining four photographs of Graham ("one
arrest photo, two . . . in a line-up with other guys, and one . .
. dressed nice") stated "none of these photos depict the guy who
shot the man out in the parking lot that night"; (2) May 25, 1993,
10Graham also asserted that his counsel failed to demonstrate
that the .22 pistol Graham had with him when arrested May 20, 1981,
(a matter which was not disclosed until the punishment stage of
trial) was not the pistol (also a .22 caliber) with which Lambert
was shot. There had been no evidence or contention that the
weapons were the same.
15

affidavit of Leodis Wilkerson (age twelve in May 1981), who was
present at the Safeway store with his aunt and cousins the evening
of May 13, 1981, and witnessed the shooting, and was never
contacted by anyone on Graham's behalf, describing the shooter as
a short, young black man without a mustache11 (whose facial
characteristics Wilkerson doesn't remember "that well anymore") and
stating that of the three attached photographs of Graham (one in a
line-up) "none of them to the best of my memory looks anything like
the man who did the shooting at the Safeway"; (3) a May 1993
affidavit of Vanessa Ford tending to corroborate the alibi portions
of Loraine Johnson's June 1, 1993, affidavit; (4) a June 1, 1993,
affidavit of Loraine Johnson that gives essentially the same
information as her April 18, 1993, affidavit (which had been before
the state court), but adds more detail about her informing Graham's
attorney, Mock, of the alibi; (5) a June 28, 1993, affidavit of Jo
Carolyn Johnson that corroborates Loraine Johnson's affidavits as
to Loraine informing Mock of the alibi witnesses; (6) Houston
Police Department report on the offense;12 (7) July 1993 report of
11There is evidence Graham then had a mustache.
12This report, among other things, indicates that shooting
witness Hubbard (who did not testify at trial and was not contacted
by anyone for the defense) described the shooter as 5'5" tall and
clean shaven and did not pick Graham out of the line-up that
Skillern saw; gives information about Etuk and Wilkerson witnessing
the shooting; gives information indicating that Skillern did not
make a positive identification of Graham from the photo spread; and
reports that the pistol Graham was found with when arrested May 20
did not fire the shot that killed Lambert. The state says this
report----or the parts of it relating to Skillern----were part of the
16

psychologist Loftus as to review of affidavits, statements, or
testimony of witnesses to the offense (Amos, Hubbard, Etuk,
Wilkerson, the Stephenses, and Skillern), concluding Skillern's
identification of Graham was likely unreliable; (8) report dated
April 20, 1993, of psychologist Willis, generally to the same
effect as the above Loftus report, and stating, inter alia,
"Bernadine Skillern's identification is totally lacking in
reliability"; and (9) Houston Police Department Firearms Report of
May 26, 1981, indicating the .22 caliber pistol Graham had with him
when arrested was not the .22 caliber pistol with which Lambert was
killed.
The state filed its answer and motion for summary judgment
August 6, 1993, with supporting material, including an audio and
video tape of an April 30, 1993, interview with Malcolm Stephens.
The state's response waived exhaustion,13 and did not affirmatively
raise the issue of successive or abusive petition under Rule 9(b)
record of the October 1981 trial hearing (out of the jury's
presence) on whether the Skillern pre-trial identifications were
overly suggestive. In any event, however, it is clear that the
report was not put before Judge Shipley----or cited to him----in any of
the state habeas proceedings.
13The state's pleading states:
"As Respondent understands them, Graham has not
exhausted his available state court remedies, inasmuch as
he presents different evidence in support of them in this
habeas petition (for instance, Sharian [sic] Etuk's
affidavit, Elizabeth Loftus report). Nonetheless, as
delay to permit exhaustion would only allow Graham to
further politicize his case, Respondent waives an
exhaustion defense."
17

of the rules relating to section 2254 proceedings or state law
procedural default. It did rely on the presumption of correctness
of the state court findings under section 2254(d), but did not cite
Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992), or any of its
progeny. That same day, Graham filed a seventeen-page response to
the state's answer and motion for summary judgment.
On August 13, 1993, the district court, without any
evidentiary hearing, rendered judgment dismissing Graham's
petition. Graham v. Collins, 829 F.Supp. 204 (S.D. Tex. 1993).14
Graham filed his notice of appeal the same day.
The district court initially noted that the state had waived
exhaustion. Id. at 207. Then turning to Graham's claim of actual
innocence, the court apparently interpreted Herrera to require a
"threshold showing" that "based on proffered newly discovered
evidence and the entire record before the jury that convicted him,
no rational trier of fact could [find] proof of guilt beyond a
reasonable doubt." Id. (internal quotation marks omitted). The
court rejected Graham's claim, concluding he "has not met the
`extraordinarily high' threshold showing of actual innocence." Id.
Next, the court rejected Graham's ineffective assistance of counsel
claim. It noted that this was a successive claim that had been
14The court also denied Graham's motions for evidentiary
hearing, for leave to undertake discovery, for stay of execution,
and for CPC; Graham's motion to proceed in forma pauperis was
granted.
18

resolved against Graham in his first federal habeas, but that
Graham could avoid the bar against a successive petition by making
a colorable showing of factual innocence. The court observed that
the affidavits of Etuk, Hubbard, West, and Amos "if credited, would
satisfy" this requirement, and that "[t]he state court has
determined that two of these affidavits are not credible." Id. at
208. The court went on to "assume arguendo that the evidence
Graham has presented makes out a colorable showing of factual
innocence," and accordingly considered the merits of Graham's
ineffective assistance of counsel claim. Id. The court applied
the section 2254(d) presumption of correctness to the state trial
court's April 26, 1993, findings,15 and, concluding on that basis
that neither defective performance nor prejudice had been shown,
held that Graham's ineffective assistance of counsel claim was
without merit. Id. at 208-09.
The scene now shifts back to the Texas courts, more
particularly the judicial proceedings relating to the TBPP.
On April 20, 1994, after Graham's appeal herein had been fully
briefed and argued, the Texas Court of Criminal Appeals granted
writs of mandamus sought by the TBPP and the District Attorney of
15The court referred particularly to thirteen specific
findings. The court noted in passing that the state court "did not
review the affidavits of eyewitnesses Sherian Etuk and Leodis
Wilkerson Jr., the affidavits of alibi witnesses Vanessa Ford and
Jo Carolyn Johnson, or the Houston Police Department Firearms
Report." Id. at 209.
19

Harris County directing the Austin Court of Appeals to set aside
its injunction, which had precluded Graham's execution pending
resolution of the TBPP's appeal of the Travis County district
court's temporary injunction. State ex rel Holmes v. Court of
Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994).16 Graham, through
counsel, appeared before the Court of Criminal Appeals as the real
party in interest. The Court held that the Austin Court of Appeals
had no jurisdiction to enjoin Graham's execution. Id. at 393-396.17
The court went on to address the scope of Graham's available state
habeas remedies in respect to his claim that evidence discovered
since his conviction demonstrated his actual innocence. The court
considered Herrera and its earlier opinion in Ex parte Binder, 660
S.W.2d 103 (Tex. Crim. App. 1983). The court observed that in
Binder it had held "`post-conviction habeas corpus has not been and
its not now the appropriate remedy for an applicant whose claim for
relief is based on newly discovered evidence.'" Id. at 397
16Previously, on November 9, 1993, the Court of Criminal
Appeals had, sua sponte, reconsidered its August 16, 1993, order
denying leave to file the applications for mandamus, and had
granted such leave to file (and stayed further proceedings in the
Austin Court of Appeals). State ex rel Holmes v. Court of Appeals,
885 S.W.2d 386 (Tex. Crim. App. 1993).
17The court stated that its opinion in this respect was limited
to jurisdiction to enjoin execution and did not preclude the Austin
Court of Appeals "from addressing the issues raised by the Board
[TBPP] in appealing the order compelling a hearing on Graham's
request for clemency. Nor does this opinion preclude Graham from
continuing to seek civil review of the clemency process." Id. at
390 n.11.
20

(quoting Binder at 106). The court then stated that "Graham
contends that newly discovered evidence demonstrates his innocence
of the crime for which he was condemned," that "[f]rom our reading
of Herrera, we understand six members of the Supreme Court to have
recognized the execution of an innocent person would violate the
Due Process Clause" and that "[w]ith this sound and fundamental
principle of jurisprudence we cannot disagree; such an execution
would surely constitute a violation of a constitutional or
fundamental right." Id. at 397. The Court went on to conclude "we
hold that habeas corpus is an appropriate vehicle for Graham to
assert his claim. To the extent that it conflicts with this
holding, Binder is expressly overruled." Id. at 398. The Court
proceeded to consider the standard under which a claim such as
Graham's should be addressed in a Texas habeas context. It held in
this respect as follows:
". . . we hold an applicant seeking habeas relief based
on a claim of factual innocence must, as a threshold,
demonstrate that the newly discovered evidence, if true,
creates a doubt as to the efficacy of the verdict
sufficient to undermine confidence in the verdict and
that it is probable that the verdict would be different.
Once that threshold has been met the habeas court must
afford the applicant a forum and opportunity to present
his evidence." (Id. at 398).
. . . .
"This threshold standard and burden of proof will
satisfy the Due Process Clause of the Fourteenth
Amendment and we adopt them in the habeas context. If
the applicant meets the threshold standard announced
above the habeas judge must hold a hearing to determine
whether the newly discovered evidence, when considered in
21

light of the entire record before the jury that convicted
him, shows that no rational trier of fact could find
proof of guilt beyond a reasonable doubt.
Therefore, we . . . hold that, pursuant to Tex. Code
Crim. Proc. Ann. art. 11.07, Graham may appropriately
couch his claims of factual innocence in the context of
a violation of the Due Process Clause of the Fourteenth
Amendment." Id. at 399 (footnote call omitted).
Significantly, in a footnote appended to the last above quoted
sentence, the Court stated:
"We note that in denying Graham's second application
for writ of habeas corpus, we summarily overruled a
similar claim based on the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
Graham, 853 S.W.2d at 565. We decide the issue today
after extensive briefing by the parties and careful
reconsideration of Graham's claim. Consequently, we
believe our summary action was erroneous and Graham is
not precluded from raising similar allegations in a
subsequent writ application." Id. at 399 n.13.
Finally, the Court declined to use the case then before it to
itself then resolve Graham's claim, because "there is no [habeas]
application presently pending before this Court, nor has the trial
judge been given the opportunity to prepare findings of fact
consistent with art. 11.07 § 3." Id. at 399. The Court observed,
however, that "Graham is free to pursue his claims through the
filing of an application under Tex. Code Crim. Proc. Ann. art.
11.07." Id.18
The Austin Court of Appeals on June 22, 1994, set aside the
18The Court also vacated its August 16, 1993, stay of
execution. Id. So far as we are aware, no execution date has been
fixed since then.
22

Travis County district court's temporary injunction against the
TBPP, but did not rule on the merits of the controversy. Texas Bd.
of Pardons and Paroles v. Graham, 878 S.W.2d 684 (Tex. App. Austin
1994). Thereafter, in October 1994 the Travis County district
court rendered judgment that Graham was not entitled to a hearing
before the TBPP on his clemency petition based on his actual
innocence claim. Graham appealed, and on January 10, 1996, the
Austin Court of Appeals affirmed. Graham v. Texas Board of Pardons
and Paroles, 913 S.W.2d 745 (Tex. App. Austin, 1996; writ dism'd
w.o.j.). The Austin Court of Appeals relied largely on the Court
of Criminal Appeals' April 20, 1994, opinion in State ex rel
Holmes, supra. The Austin Court of Appeals stated:
"Indeed, the protections afforded by the Texas
Constitution may exceed those of the federal constitution
even though the phrasing of a provision is the same or
similar in both charters. . . . With this independent
vitality of our state constitution in mind, we hold that
the due course of law provision in the Texas Constitution
guarantees Graham the right to a hearing on his claim of
actual innocence. Our reasoning is much the same as that
employed by the Court of Criminal Appeals in [State ex
rel] Holmes: the execution of an innocent prisoner
violates the constitution, and therefore a claim of
actual innocence by a death-row prisoner based on newly
discovered evidence merits a hearing. Holmes, 885 S.W.2d
at 397-98. However, we determine that Graham's right to
a due course of law hearing on his claim of actual
innocence has been satisfied by the habeas corpus
procedure fashioned for him by the Court of Criminal
Appeals in Holmes. Upon a showing of new evidence that
undermines confidence in the jury verdict, Graham will be
entitled to an evidentiary hearing in accordance with
statutory post-conviction habeas corpus procedures.
Holmes, 885 S.W.2d at 398-99. . . . Now that the Court
of Criminal Appeals in Holmes has created a judicial
23

vehicle for testing such a claim of actual innocence, we
hold that the Texas Constitution does not afford Graham
an additional, duplicative hearing within the executive-
clemency process." Graham, 913 S.W.2d at 751.
Discussion
In his appeal to this Court, Graham reiterates his claims made
below and asserts that the district court erred by denying his
petition without any evidentiary hearing, that he was denied
effective assistance of counsel, that Graham is innocent and under
Herrera "[t]he inadequacy of the clemency `fail-safe' requires this
Court to intervene," and that the district court erred in granting
summary judgment before the expiration of the ten-day notice period
provided by Fed. R. Civ. Proc. 56(c). We do not reach the merits
of these contentions, as we hold that Graham's habeas petition
should be dismissed for failure to exhaust state remedies.
The exhaustion doctrine, generally codified in section 2254(b)
& (c), requires that normally a state prisoner's entire federal
habeas petition must be dismissed unless the prisoner's state
remedies have been exhausted as to all claims raised in the federal
petition. Rose v. Lundy, 102 S.Ct. 1198 (1982). As the Court said
in Rose:
"A rigorously enforced total exhaustion rule will
encourage state prisoners to seek full relief first from
the state courts, thus giving those courts the first
opportunity to review all claims of constitutional error.
As the number of prisoners who exhaust all of their
federal claims increases, state courts may become
increasingly familiar with and hospitable toward federal
constitutional issues. . . . Equally as important,
federal claims that have been fully exhausted in state
24

courts will more often be accompanied by a complete
factual record to aid the federal courts in their
review." Id. at 1203-4.
We have held that a habeas petitioner fails to exhaust state
remedies when he presents material additional evidentiary support
to the federal court that was not presented to the state court.
See Joyner v. King, 786 F.2d 1317, 1320 (5th Cir.) (holding that
the policies underlying the exhaustion doctrine require that "new
factual allegations in support of a previously asserted legal
theory" be first presented to the state court), cert. denied, 479
U.S. 1010 (1986); Brown v. Estelle, 701 F.2d 494, 495-96 (5th Cir.
1983) (holding that when a claim is filed in federal court in a
significantly stronger evidentiary posture than it was before the
state court, it must be dismissed for failure to exhaust state
remedies). See also Barrientes v. Johnson, No. 95-40880 (5th Cir.
Aug. 20, 1996) (unpublished).
Graham, in support of his current section 2254 petition, has
presented significant evidentiary support for his claims of actual
innocence and ineffective assistance of counsel that was never
presented to the state courts. Thus, he has not exhausted his
state remedies.
Of course, exhaustion is not required if it would plainly be
futile. "An exception [to the exhaustion requirement] is made only
if there is no opportunity to obtain redress in state court or if
the corrective process is so clearly deficient as to render futile
25

any effort to obtain relief." Duckworth v. Serrano, 102 S.Ct. 18,
19 (1981).
As to Graham's ineffective assistance of counsel claim, the
Court of Criminal Appeals in its per curiam order of July 5, 1993,
denied Graham relief "without prejudice" to his first seeking
relief in the trial court on the basis of his claims of newly-
discovered evidence. Ex parte Graham, 853 S.W.2d at 571 & n.1.19
Graham has not exercised that right, and it appears to be still
available to him. Cf. Tex. Code Crim. Proc. Art. 11.071 § 5(a)
(allowing successive claim if previously "the factual or legal
basis for the claim was unavailable," or if it is shown "by a
preponderance of the evidence, but for a violation of the United
States Constitution no rational juror could have found the
applicant guilty beyond a reasonable doubt," or if it is shown "by
clear and convincing evidence, but for a violation of the United
States Constitution no rational juror would have answered in the
state's favor one or more of the [punishment] special issues"); §
5(e) (factual basis unavailable if "not ascertainable through the
exercise of reasonable diligence").20
19This July 5, 1993, order of the Texas Court of Criminal
Appeals is not mentioned in the district court's opinion; nor was
it called to the district court's attention, or to the attention of
this Court, by the parties.
20It is unclear whether section 11.071, enacted in 1995, would
apply to a subsequent state habeas application by Graham or, if so,
just how it would.
26

As to Graham's actual innocence claim, the Court of Criminal
Appeals' April 20, 1994, decision holds that Graham's allegations
in this respect state a constitutional claim, both under the United
States Constitution (based on its reading of Herrera) and under the
Texas Constitution, each cognizable in a state court habeas
proceeding, that, after "careful reconsideration of Graham's
claim," its earlier action in which it "summarily overruled"
Graham's said claim "was erroneous," and that "Graham is free to
pursue his claims" through a subsequent state habeas corpus
proceeding. State ex rel Holmes, 885 S.W.2d 389, 397-399 & n.13.
This seems to be a clear holding that state habeas relief is
available to Graham with respect to this claim on a basis at least
as favorable to him as he would have in federal court.21 To the
same effect is the January 1966 opinion of the Austin Court of
Appeals in Graham v. Texas Board of Pardons and Paroles, 913 S.W.2d
at 751 ("on his claim of actual innocence . . . upon a showing of
new evidence that undermines confidence in the jury verdict, Graham
will be entitled to an evidentiary hearing in accordance with
21We observe that under State ex rel Holmes Graham's required
"threshold" showing to be entitled to an evidentiary hearing on his
actual innocence claim----"newly discovered evidence [which], if true,
creates a doubt as to the efficacy of the verdict sufficient to
undermine confidence in the verdict and that it is probable that
the verdict would be different" (id. at 398)----appears somewhat less
difficult for Graham to meet than the "threshold showing" that
"based on proffered newly discovered evidence and the entire record
before the jury . . . no rational trier of fact could [find] proof
of guilt beyond a reasonable doubt" applied by the district court
below. Graham v. Collins, 829 F.Supp. at 207.
27

statutory post-conviction habeas corpus procedures").
We are unable to conclude that resort by Graham to the state
courts respecting either----much less both----of the claims raised in
his instant petition would be futile.
Finally, we consider the effect of the state's waiver of
exhaustion. Clearly, failure to exhaust is not a jurisdictional or
inflexible bar to the grant of federal habeas relief to a state
prisoner. Granberry v. Greer, 107 S.Ct. 1671 (1987); McGee v.
Estelle, 722 F.2d 1206 (5th Cir. 1984) (en banc); Thompson v.
Wainwright, 714 F.2d 1495 (11th Cir. 1983). Just as clearly,
however, federal courts, trial and appellate, are not obliged to
accept a state's waiver of exhaustion, though ordinarily the waiver
will be honored.22 As we said in McGee:
"A finding of waiver does not conclude our consideration,
for a district court or a panel of this court may
consider that it should not accept a waiver, express or
implied. As the Eleventh Circuit observed in Thompson v.
Wainwright [714 F.2d 1495; 1983], `[c]omity is not a one
way street. . . . Strong federal interests may exist
that, balanced against those of the state in the
particular case, will permit the district court in its
discretion to decline a waiver and require state
exhaustion.' 714 F.2d at 1509. One of those interests
is the burden on the federal system. Additionally, it
may appear that state remedies would be effective, or
that evidentiary development would be aided by requiring
a hearing in state court. . . . Accordingly, we hold, as
22The district court here did not address whether to accept the
state's waiver, did not have the July 5, 1993, Court of Criminal
Appeals order in State ex rel Holmes called to its attention, and
could not possibly have known of the April 1994 Court of Criminal
Appeals decision in State ex rel Holmes or the January 1996 Austin
Court of Appeals decision in Graham.
28

did the Eleventh Circuit in Thompson, that the district
court, or a panel of this court, in its discretion may
either accept or reject the state's waiver of the
exhaustion requirement, or notice sua sponte the lack of
exhaustion." Id. at 1214 (emphasis added; footnotes
omitted).
Similarly, in Granberry the Supreme Court held that although
exhaustion was a nonjurisdictional matter that could be waived if
not raised by the state,23 nevertheless such a waiver did not
preclude the appellate court from requiring exhaustion in a
particular case in the exercise of its discretion.24 The court
adopted "an intermediate approach" under which "the courts of
appeals [are] to exercise discretion in each case to decide whether
the administration of justice would be better served by insisting
on exhaustion or by reaching the merits of the petition forthwith."
Id. at 1673. Granberry gives the following example of a case in
which the Court of Appeals might, sua sponte, require exhaustion,
viz: "If, for example, the case presents an issue on which an
unresolved question of fact or of state law might have an important
23"Although there is a strong presumption in favor of requiring
the prisoner to pursue his available state remedies, his failure to
do so is not an absolute bar to appellate consideration of his
claims." Id. at 1674.
24We recognize that Granberry dealt with a situation in which
the state had simply failed to raise exhaustion in the district
court, and Granberry only expressly addressed that scenario.
Nevertheless, in McGee we specifically spoke to "express" "waiver"
by the state, as did the Eleventh Circuit in Thompson, and
concluded, as did the Eleventh Circuit, that the federal courts
were not obliged to accept such a waiver. We do not read Granberry
as being contrary to this aspect of McGee.
29

bearing, both comity and judicial efficiency may make it
appropriate for the court to insist on complete exhaustion to make
sure that it may ultimately review the issue on a fully informed
basis." Id. at 1675. As an example of a situation in which the
appellate court might decline to sua sponte insist on exhaustion,
Granberry posits the following: "Conversely, if a full trial has
been held in the district court and it is evident that a
miscarriage of justice has occurred, it may also be appropriate for
the court of appeals to hold that the nonexhaustion defense has
been waived in order to avoid unnecessary delay in granting relief
that is plainly warranted." Id. at 1676.
The present case is one which fits the first Granberry
example, not the second. The issues in this case are almost
exclusively factual, and the relevant factual scenario is complex,
highly controverted, and in many respects unresolved. The district
court denied the petition without an evidentiary hearing. There is
a large body of relevant evidence that has not been presented to
the state court. It is doubtful that the record before us allows
review of the underlying issues on a fully informed basis.
Moreover, the state's reason for waiving exhaustion (see note
13)----so as not to "allow Graham to further politicize his case"----is
questionable at best and has no legitimate relevance to what course
of action would best serve the administration of justice. We
conclude that in the circumstances of this case the due
30

administration of justice would be significantly better served by
insisting on exhaustion. For these reasons, in the exercise of our
discretion, we decline to accept the state's waiver of the
exhaustion requirement.
Conclusion
Graham has not exhausted his state remedies, and we have
refused to accept the state's waiver of exhaustion. We accordingly
vacate the district court's judgment and remand the case with
directions that Graham's petition be dismissed without prejudice
for failure to exhaust state remedies.
VACATED and REMANDED
31