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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-30739
_______________
CHIENO ORMAN,
Petitioner-Appellee,
VERSUS
BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
October 11, 2000
Before SMITH and DENNIS, Circuit
possibility of parole. The district court held
Judges, and HARMON,* District Judge.
that the state had breached its duty under Bra-
dy v. Maryland, 373 U.S. 83, 87 (1963), to
JERRY E. SMITH, Circuit Judge:
disclose exculpatory evidence and that Or-
man's guilty plea violated Alford v. North Car-
Chieno Orman was granted a writ of habeas
olina, 400 U.S. 25, 38 & n.10 (1970), and
corpus regarding his conviction of second-de-
FED. R. CRIM. P. 11(f), which require courts to
gree murder and resulting life sentence without
ensure that there is a factual basis for entering
a conviction whenever a guilty plea is accom-
panied by a claim of innocence.
* District Judge of the Southern District of
On appeal, the state argues that Orman was
Texas, sitting by designation.

barred from seeking habeas relief because he
Orman went back outside, and, shortly
failed to exhaust his state remedies and that
thereafter, Davis claims, she heard a gunshot.
the plea violated neither Brady nor Alford.
Orman then returned to the residence and told
We conclude that, although Orman satisfied
her he had shot Reynolds. Davis did not see
the exhaustion requirement, the plea was val-
the incident.
idly entered.
On his return to the residence, Orman
First, we reiterate our ruling in Matthew v.
grabbed Davis by the neck, held the gun beside
Johnson, 201 F.3d 353, 361-62 (5th Cir.
her head, and discharged it but did not hit her.
2000), petition for cert. filed (Apr. 25, 2000)
He then made Davis take her clothes off. Af-
(No. 99-9224), that Brady requires a prosecu-
ter attempting to rape her, he ordered her to
tor to disclose exculpatory evidence for pur-
dress and get into his truck so he could take
poses of ensuring a fair trial, a concern that is
her home.
absent when a defendant waives trial and
pleads guilty. Because the Supreme Court has
According to Davis, Reynolds, whose body
yet to extend Brady to guilty pleas (let alone
had remained in Orman's truck, was still alive
extend it retroactively), the district court erred
at that time, although he had been shot in the
in requiring the Louisiana courts to do so.
left temple and blood dripped from the wound.
When Orman slowed down for a hole in the
Second, the Louisiana Supreme Court did
road, Davis jumped out of the truck and ran
not act unreasonably when it found that Orman
into the woods. Investigators found footprints
never proclaimed his innocence and therefore
going into the woods at the place Davis had
that no factual basis for the plea was necessary
identified as her escape point.
under Alford. We therefore reverse and re-
mand for any necessary further proceedings re-
Following her escape from Orman, Davis
specting Orman's other grounds for habeas re-
walked to a nearby residence and told the oc-
lief yet to be addressed by the district court.
cupants what had happened. The residents no-
tified the sheriff's department.
I.
A.
Near a bridge that was, according to Davis,
On the evening of the alleged murder, Or-
in the direction Orman had been traveling at
man, his close friend, William Reynolds, and
the time of her escape, investigators later
Reynolds' girlfriend, Dee Dee Davis, went out
found a black baseball cap, bodily fluids, vom-
drinking. Orman also ingested LSD.
it, and Reynolds's body. Similar fluids and
vomit were fo und in Orman's truck. An au-
According to two statements made by Da-
topsy showed that Reynolds had died of a
vis, the three subsequently journeyed to the
single gunshot wound to the left temple.
residence of Orman's grandfather, Pete McIn-
tyre. Leaving Reynolds passed out in Orman's
According to an investigator, Orman then
truck, Orman and Davis entered the residence
returned to the McIntyre residence, got his
to get the keys to McIntyre's truck, confirmed
grandfather's truck, and picked up his girl-
that the truck would start, and returned to the
friend, Tina Wood. According to her state-
residence.
ment, Orman told her that he had shot Rey-
nolds and t hat he planned to turn himself in.
2

Before he had the chance to do so, he was
py of the police report, a copy of the patholo-
apprehended.
gist's report, and a death certificate. The trial
court found a significant factual basis for the
In his petition for habeas relief, Orman al-
plea and thereby affirmed the conviction.
leges, inter alia, that the state failed to dis-
close exculpatory evidence. Specifically, he
On appeal a second time, the intermediate
contends that the state disclosed to his counsel
appellate court again set aside the guilty plea
only that there was a possible conflict between
for lack of a factual basis. Finally, the state su-
two of Davis's statements. The state court
preme court reversed and reinstated Orman's
conducted an in camera review of the state-
conviction.
ments and provided Orman's counsel with re-
dacted copies. Orman claims, however, that
In 1998, Orman filed the instant federal
the state failed to disclose a statement by Todd
habeas petition. On the magistrate's recom-
DeMars, a teacher at the high school Davis
mendation, the district court held, first, that
attended.
the state had failed to disclose exculpatory ev-
idence in violation of Brady, and second, that
According to that statement, Davis had
a factual basis to support the plea was required
seemed depressed four days prior to the mur-
under Alford and that such a basis was lacking.
der. When DeMars asked what was wrong,
The court granted conditional habeas relief for
she said she was about to be kicked out of her
sixty days to give the state the opportunity to
house. When he asked if there was anything
rearraign Orman, and stayed its order pending
he could do, she replied, "Can you kill my boy-
this appeal.
friend?"
II.
Witnesses besides Davis maintained that, on
A habeas petitioner has the burden to prove
the evening in question, Orman was heavily
that he is entitled to relief.1 In addition, Or-
intoxicated with alcohol, acid, or both. More-
man's petition for federal habeas relief is gov-
over, during his jailhouse interview, Orman
erned by 28 U.S.C. � 2254(d) as amended by
stated that he could not remember shooting
the Antiterrorism and Effective Death Penalty
Reynolds but did advise officers that there was
Act of 1996 ("AEDPA"),2 under which federal
a gun under the seat of his truck, which the
officers subsequently recovered.
1 See Williams v. Taylor, 120 S. Ct. 1495,
B.
1518 (2000); Engle v. Isaac, 456 U.S. 107, 134-35
Orman pleaded guilty to second-degree
(1982).
murder. He did not directly appeal.
2 That provision reads as follows:
Nearly three years later, he sought habeas
An application for a writ of habeas cor-
relief in state court. After the trial court de-
pus on behalf of a person in custody pursu-
nied relief, an intermediate appellate court re-
ant to the judgment of a State court shall not
manded to give the state the opportunity to es-
be granted with respect to any claim that
tablish a significant factual basis for Orman's
was adjudicated on the merits in State court
guilty plea. On remand, the state offered a
proceedings unless the adjudication of the
transcript of the preliminary examination, a co-
(continued...)
3

courts may grant the writ on a finding of mere
one of objective reasonableness.4
error by a state court, but only if a state court
"arrives at a conclusion opposite to that
In addition, absent special circumstances, a
reached by [the Supreme Court] on a question
federal habeas petitioner must exhaust his state
of law or if the state court decides a case dif-
remedies by pressing his claims in state court
ferently than [the Supreme Court] has on a set
before he may seek federal habeas relief.5 Or-
of materially indistinguishable facts." Wil-
man did not directly appeal the entry of his
liams, 120 S. Ct. at 1523.
guilty plea and resulting conviction. He did,
however, pursue a claim for state habeas relief
Barring that, the writ is available only if the
before filing this federal habeas suit. Federal
state court "unreasonably applies [clearly es-
habeas relief requires no more.6 Orman there-
tablished federal law, as determined by the Su-
preme Court] to the facts of the prisoner's
case," id., or makes "an unreasonable determi-
4 The Supreme Court recently rejected the use
nation of the facts in light of the evidence pre-
of the "all reasonable jurists" standard adopted in
sented in the State court proceeding."3 It
some circuits, including this court. See Williams,
follows from this that mere disagreement with
120 S. Ct. at 1521-22 ("Stated simply, a federal
the state court is not enough. The standard is
habeas court making the `unreasonable application'
inquiry should ask whether the state court's appli-
cation of clearly established federal law was objec-
tively unreasonable. The federal habeas court
2(...continued)
should not transform the inquiry into a subjective
claimSS
one by resting its determination instead on the sim-
ple fact that at least one of the Nation's jurists has
(1) resulted in a decision that was con-
applied the relevant federal law in the same manner
trary to, or involved an unreasonable appli-
the state court did in the habeas petitioner's case.
cation of, clearly established Federal law, as
The `all reasonable jurists' standard would tend to
determined by the Supreme Court of the
mislead federal habeas corpus courts by focusing
United States; or
their attention on a subjective inquiry rather than
on an objective one.").
(2) resulted in a decision that was
based on an unreasonable determination of
5 See 28 U.S.C. � 2254(b)(1) ("An application
the facts in light of the evidence presented in
for a writ of habeas corpus on behalf of a person in
the State court proceeding.
custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the
28 U.S.C. � 2254(d).
applicant has exhausted the remedies available in
the courts of the State").
3 28 U.S.C. � 2254(d)(2). See also 28 U.S.C.
� 2254(e)(1) ("In a proceeding instituted by an
6 See Carter v. Estelle, 677 F.2d 427, 443 (5th
application for a writ of habeas corpus by a person
Cir. 1982) ("The basic compromise which under-
in custody pursuant to the judgment of a State
lies all of exhaustion doctrine requires that the state
court, a determination of a factual issue made by a
courts be given the first opportunity to pass upon
State court shall be presumed to be correct. The
the petitioner's federal claims. Exhaustion normal-
applicant shall have the burden of rebutting the
ly requires only that the federal claim have been
presumption of correctness by clear and convincing
fairly presented to the highest court of the State,
evidence.").
(continued...)
4

fore was entitled to bring this petition for ha-
announced by the Supreme Court would not
beas relief.
apply retroactively unless the new rule satisfied
the requirements of Teague v. Lane, 489 U.S.
III.
288 (1989).9
Orman claims that the state failed to dis-
close two pieces of exculpatory evidence to
As we recently held in Matthew, which was
the defense in violation of his constitutional
issued after the district court granted habeas
right to due process.7 The duty articulated in
relief in the instant case,
Brady, however, was expressly premised on a
defendant's right to a fair trial, a concern that
[t]he Brady rule's focus on protecting
does not animate the case sub judice.8
the integrity of trials suggests that where
no trial is to occur, there may be no con-
We do not review Orman's Brady claim de
stitutional violation. . . . Because a
novo but, instead, examine the case under the
Brady violation is defined in terms of the
deferential lens required by AEDPA. As we
potential effects of undisclosed informa-
have said, AEDPA requires deference unless
tion on a judge's or jury's assessment of
the state court ruling is contrary to clearly es-
guilt, it follows that the failure of a pro-
tablished federal law as determined by the Su-
secutor to disclose exculpatory informa-
preme Court. But "[t]he Supreme Court has
tion to an individual waiving his right to
not as yet ruled on whether a prosecutor's fail-
trial is not a constitutional violation.
ure to disclose material exculpatory informa-
tion prior to entry of a guilty plea violates the
Matthew, 201 F.3d at 361-62.
U.S. Constitution." Matthew, 201 F.3d at
360. Furthermore, any new constitutional rule
There being no reason in 1993, when Or-
man pleaded guilty, that "a state court would
have felt compelled to decide that a prosecu-
6
tor's failure to disclose exculpatory informa-
(...continued)
tion before entry of a guilty or nolo conten-
either on direct review of the conviction or in a
dere plea was a Brady violation, or otherwise
post-conviction attack.") (citations and quotations
a violation of the Due Process Clause," id. at
omitted).
364, the state's failure to disclose exculpatory
7 See Brady, 373 U.S. at 87 (stating that "the
materials before Orman's guilty plea could not
suppression by the prosecution of evidence favor-
constitute grounds for the district court to
able to an accused upon request violates due pro-
grant habeas relief here. After all, in the ab-
cess where the evidence is material either to guilt or
sence of contrary, clearly established federal
to punishment, irrespective of the good faith or bad
law as determined by the Supreme Court, it
faith of the prosecution").
was patently reasonable for the Louisiana
8 See Matthew, 201 F.3d at 360 ("The prosecu-
tor's duty to disclose material exculpatory informa-
tion is based in the Due Process Clause of the
9 See Teague, 489 U.S. at 310 ("Unless they
Fourteenth Amendment, and exists to ensure that
fall within an exception to the general rule, new
the accused receives a fair trial, i.e., that an impar-
constitutional rules of criminal procedure will not
tial party's assessment of the defendant's guilt is
be applicable to those cases which have become
based on all the available evidence.").
final before the new rules are announced.").
5

courts to decide not to extend Brady to guilty
because you actually did the things
pleas. Therefore, Orman's Brady objections
charged?
are insufficient as a matter of law to warrant
habeas relief.
COUNSEL FOR ORMAN: Your Hon-
or, uh, for the record we're entering this
IV.
plea under North Carolina v. Alford.
A plea of guilty is consistent with due pro-
It's an Alford plea. We are entering that
cess only if entered into knowingly, volun-
type plea because number one, the de-
tarily, and intelligently. Where the defendant
fendant still has amnesia about certain
proclaims his innocence but pleas guilty any-
aspects of the homicide he's pleading
way, due process is satisfied only if the state
guilty to. Number two, because the evi-
can demonstrate a "factual basis for the plea."
dence against him is great, and thirdly,
Alford, 400 U.S. 25, 38 & n.10 (1970).10
because of the possibility of the death
sentence or two life sentences plus 40
On habeas review, the district court found
years being imposed if he is convicted
Orman's plea wanting under Alford. The state
on all charges.
claims error, arguing that Orman did not pro-
claim his innocence before the trial court and
Under Alford, "when a defendant pleads
that, in any case, an adequate factual basis for
guilty while proclaiming his innocence, the
the plea was provided on remand from the
court commits constitutional error by accept-
intermediate Louisiana appellate court.
ing the plea without ascertaining that there is
a factual basis for it." Banks v. McGougan,
In light of the fact that this issue was fully
717 F.2d 186, 188 (5th Cir. 1983). But, "ab-
litigated in the state courts, the federal district
sent statements inconsistent with guilt, state
court was authorized to grant federal habeas
courts are not constitutionally required to es-
relief under AEDPA only if it was objectively
tablish a factual basis for the plea of guilt." Id.
unreasonable for the state courts to have de-
nied Orman his requested relief. Because,
Furthermore, it is not incumbent upon the
however, it was reasonable for the Louisiana
sentencing court to ascertain whether the de-
courts to conclude that Orman had failed to
fendant believes in his innocence. Instead, it is
proclaim his innocence in state court, we
the defendant's duty to assert innocence and
reverse.
thereby bring to the court's attention the need
to ensure a factual basis for the guilty plea not-
At the plea hearing, the following exchange
withstanding his claim of innocence. "[T]he
took place:
due process clause imposes no constitutional
duty on state trial judges to ascertain a factual
THE COURT: Are you pleading guilty
basis prior to accepting a guilty plea unless . . .
the state judge is put on notice that there may
be some need for such an inquiry (as, for ex-
10
ample, when the accused asserts his inno-
See also FED. R. CRIM. P. 11(f) ("Notwith-
standing the acceptance of a plea of guilty, the
court should not enter a judgment upon such plea
without making such inquiry as shall satisfy it that
there is a factual basis for the plea.").
6

cence)." Id.11
Orman never claimed innocence. To be
sure, the fact that counsel claimed that Orman
suffered from amnesia indicates that Orman
was not admitting guilt. But inability to admit
guilt is a far cry from an assertion of inno-
cence. A claim of amnesia, unlike a claim of
innocence, is patently not a "statement[] incon-
sistent with guilt." Banks, 717 F.2d at 188.
Counsel did specifically refer to the plea as
an "Alford plea." One plausible inference from
that reference is that Orman intended to pro-
claim his innocence. That inference is not re-
quired, however. Indeed, the citation to Al-
ford is tempered by the fact that counsel also
explicitly conceded that "the evidence against
him is great."
In sum, it was not unreasonable for the
Louisiana Supreme Court to reject Orman's al-
legation that he proclaimed his innocence
when he pleaded guilty. The district court
therefore erred in granting habeas relief pursu-
ant to Alford.
REVERSED and REMANDED.
11 See also Smith v. McCotter, 786 F.2d 697,
702 (5th Cir. 1986) ("State courts are under no
constitutional duty to establish a factual basis for
the guilty plea prior to its acceptance, unless the
judge has specific notice that such an inquiry is
needed.").
7