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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50694
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC ALAN GIACOMEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
September 15, 1998
Before POLITZ, Chief Judge, WIENER and DENNIS, Circuit Judges.
POLITZ, Chief Judge:
Eric Alan Giacomel appeals the denial of his 28 U.S.C. § 2255 petition for
habeas corpus, seeking a remand for a new evidentiary hearing, contending that the
district court erred in accepting the magistrate judge's credibility determination
based in part on a witness's oral affirmation of an earlier affidavit.
A magistrate judge conducted an evidentiary hearing on Giacomel's claims,

including his contention that his trial attorney failed to inform him of his right to
appeal.1 The government filed an affidavit from Giacomel's trial counsel, Alan
Brown, in which counsel attested that he advised Giacomel about his appellate
rights and the time limits involved but, after discussion, Giacomel agreed that an
appeal would be frivolous and decided against same. At the evidentiary hearing
Brown testified that he had read and signed the affidavit and that the statements
therein were true and correct. Although Brown testified extensively, on direct and
cross, about his representation of Giacomel, he was not otherwise questioned about
the appeal issue. Giacomel testified that he did not discuss his appellate rights with
counsel and, although informed by the court at sentencing of his right to appeal, he
was never informed of the time limits involved.
The magistrate judge found, based on her "first-hand examination of attorney
Brown and the movant at the evidentiary hearing," that Brown's testimony in his
affidavit was credible and that Giacomel was not credible. She recommended that
relief be denied. Giacomel filed objections, challenging the magistrate judge's
credibility determinations. In making its de novo review, the district court noted
that the only evidence contradicting Brown's affidavit was Giacomel's testimony,
1 Other claims were raised below, but abandoned on appeal. Askanase v. Fatjo, 130
F.3d 657, 668 (5th Cir. 1997) ("All issues not briefed are waived."). Nevertheless, these
issues appear to have been resolved in the proceedings on the 18 U.S.C. § 3582(c) motion.
2

which the magistrate judge found incredible. The district court found no basis to
question the magistrate judge's credibility assessments and adopted same, denying
the requested § 2255 relief.
We find no error in the district court's acceptance of the magistrate judge's
credibility calls. In determining the credibility of a witness the fact finder closely
observes the witness, as demeanor is a critical factor therein.2 The magistrate judge
obviously did this when she heard both Brown's and Giacomel's testimony and
viewed and assessed their demeanor. Brown's oral affirmation of the contents of
his affidavit constituted testimony on which a credibility determination could be
made. A requirement that a witness may not affirm through oral testimony prior
statements made under oath, but must also laboriously restate each, would merely
place form over substance. The affidavit at issue was filed in the record and
available to the parties, and Brown was subject to cross-examination. The
magistrate judge's acceptance of the prior sworn statements made by Brown, an
attorney with 25 years experience, which he affirmed in his oral testimony, was the
product of a credibility assessment that satisfies due process requirements.
The district court was not required to rehear the testimony on which the
magistrate judge based her findings and recommendation to make an independent
2 Louis v. Blackburn, 630 F.2d 1105 (5th Cir. 1980).
3

evaluation of credibility when, as here, those findings were accepted.3 We perceive
no error in the district court deferring herein to the magistrate judge's credibility
findings; the record adequately supports them.
The judgment appealed is AFFIRMED.
3 Id.; United States v. Raddatz, 447 U.S. 667 (1980).
4