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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50596
_______________
PEDRO L. GOCHICOA,
Petitioner-Appellee-
Cross-Appellant,
VERSUS
GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
December 29, 2000
Before SMITH and DENNIS, Circuit
Judges, and HARMON, District Judge.*
Gary Johnson, on behalf of the State of
Texas ("the state"), appeals the grant of a writ
JERRY E. SMITH, Circuit Judge:
of habeas corpus under 28 U.S.C. § 2254, and
the petitioner, Pedro Gochicoa ("Gochicoa")
cross-appeals the district court's refusal to find
*
prejudice from ineffective assistance of
District Judge of the Southern District of
Texas, sitting by designation.
counsel. We affirm in part, reverse in part,

and render judgment in favor of the state.
from which Gochicoa had emerged.
I.
As they searched, a young man named Mi-
The district court originally granted habeas
chael Carrasco approached the officers and
relief to Gochicoa based on violations of the
told them he had been watching the alley from
Confrontation Clause via hearsay testimony
an apartment window approximately 100 to
and related argument. See Gochicoa v.
150 feet away. Carrasco reported that when
Johnson ("Gochicoa I"), 972 F. Supp. 380
Gochicoa rounded the corner of the alley and
(W.D. Tex. 1996). Concluding that the
saw Prieto, he quickly reached into his pocket
admission of the hearsay evidence did not vio-
and made a motion as if he were throwing
late the Confrontation Clause, we reversed.
something to the ground. Carrasco, however,
See Gochicoa v. Johnson ("Gochicoa II"), 118
did not actually see anything leave Gochicoa's
F.3d 440 (5th Cir. 1997). On remand, the
hand. Carrasco led the officers in the direction
district court again granted habeas relief, this
of Gochicoa's gesture, where they found a
time based on the constructive complete denial
small red balloon containing nineteen dosage
of counsel. See Gochicoa v. Johnson
units of heroin. The officers found no other
("Gochicoa III"), 53 F. Supp. 2d 943 (W.D.
objects or refuse on the ground in the area.
Tex. 1999).
Police arrested Gochicoa two days later and
A.
charged him with felony possession of heroin.
While responding to a call complaining of a
At trial, the state did not identify the
"suspicious person," Officer Victor Prieto of
confidential informant or call the informant to
the Pecos, Texas, police department
testify, but mentioned the telephone call from
encountered Jorge Gochicoa ("Jorge"), Pedro
the informant several times during its case in
Gochicoa's brother, sitting in a parked car
chief. During his opening statement, the pro-
near an apartment building.1 As Prieto spoke
secutor made the following remark: "Deputy
to Jorge, Pedro approached the car from an
Gomez . . . pulls up and tells [Prieto] that he
alley, greeted Prieto "nervously," and said to
has gotten a tip from a confidential informant
his brother "let's go." Prieto questioned the
concerning the defendant, and they start
Gochicoas briefly and then allowed them to
searching the area where [Gochicoa] was com-
leave.
ing from for contraband that has been left
behind."
Immediately after the brothers left, Deputy
Andy Gomez arrived and told Prieto that the
During the prosecutor's direct examination
sheriff's department had also received a call,
of Prieto, the following exchange took place:
this time from a confidential informant, report-
ing that a man named Manuel Salcido was in
Q: Did you say anything to [Gochicoa]?
the area selling heroin to Gochicoa. Gomez
and Prieto then proceeded to search the alley
A: No, sir.
Q: Did you have any reason at this point
1 This statement of the facts and proceedings
in time to stop him, to investigate any
underlying Gochicoa's conviction is adopted from
crime that may have been committed, or
Gochicoa II, 118 F.3d at 441-44.
2

do anything else concerning [Gochicoa]?
Q: Did you and Deputy Gomez have a
conversation?
A: No, sir, I had no reason.
A: Yes, sir.
Q: Did you in fact allow them to drive
away?
Q: Without telling me what he said,
based upon that conversation did you
A: Yes, sir.
and Deputy Gomez undertake a search?
Q: At about that time as they were
A: Yes, sir, we did.
driving away, did a peace officer
approach your position?
Q: And where were you looking at?
What area were you searching?
A: Yes, sir.
A: We was looking on the alley mostly
Q: What officer was that?
from where I had seen [Gochicoa]
coming from.
A: It was Reeves County Sheriff's
Deputy Andy Gomez.
Q: All right. And what were you
looking forSSyourself, personally?
Q: Okay. And what was Deputy Go-
mez's purpose in being thereSSdo you
A: Well, we were looking for any kind
have any idea?
of drugs.
A: He advised me that he had some in-
Gochicoa's counsel failed to object to this
formation that [Gochicoa] was selling
continuing line of questioning.
. . . .
On redirect examination of Prieto, the pro-
MR. PAINTER [Gochicoa's attorney]:
secutor again introduced the confidential in-
Your Honor, I object. That's hearsay.
formant's telephone message into evidence
without objection:
MR. ZAVODA [prosecutor]: I'll
withdraw the question, Your Honor.
Q: Now you mentioned the name of
Manuel Salcido when you were
THE COURT: Sustained.
answering questions of Mr. Painter.
Gochicoa's counsel did not ask that the an-
A: Yes, sir.
swer be stricken or that the jury be instructed
to disregard the testimony. Moreover, despite
. . .
the ruling, the prosecutor elicited testimony
from Prieto that indirectly apprised the jury of
Q: You called him the other suspect.
the substance of the informant's out-of-court
Was he another person that was
statement:
supposed to be possessing heroin or
3

selling heroin?
Again, Gochicoa's counsel did not object.
At closing, the prosecutor cited the substance
. . .
of the informant's tip as direct evidence
against Gochicoa.
A: Yes, sir.
What do we know by direct
. . .
evidence? . . . We know that
[Gochicoa] was out at the project on
Q: And [Manuel Salcido's residence is]
August 15, 1991, at about five or 5:15
the general location that [Gochicoa] was
P.M. We know his brother Jorge was
coming from, is that correct?
waiting for him to come back from
where he was at. We know that when
A: That is correct.
he saw Victor PrietoSSOfficer
PrietoSSthat Pedro got nervous. We
When Gomez took the stand, the
heard that from two different witnesses,
prosecutor again acknowledged the earlier
Officer Prieto and Michael Carrasco.
ruling and admonished Gomez not to reveal
We know that Deputy Gomez had
the substance of the statement.
information from a confidential
informant that Manuel Salcido was in
Q: You cannot tell me what the
this area in his home selling heroin and
confidential informant told you, but
that [Gochicoa] was buying it at this
based upon that information did you
particular time.
proceed to the 1000 block of East 10th
in Pecos, Reeves County, Texas?
Gochicoa's counsel did not object to this
argument.
A: Yes, I did.
On appeal, Gochicoa's attorney filed an
. . .
Anders brief2 and withdrew from the case.
Gochicoa then filed an appeal pro se, and the
Q: Again, based upon the information
Texas Court of Appeals affirmed his
you received from the confidential
conviction in an unpublished opinion.
informant, did you and Victor
Gochicoa filed a petition for writ of habeas
PrietoSSOfficer PrietoSSconduct a
corpus with the Texas Court of Criminal
search of the area where Officer Prieto
Appeals, which denied relief without written
was at?
order. Gochicoa then filed the instant federal
habeas petition.
A: Yes, we did.
Gochicoa asserts ineffective assistance of
Q: What were you looking for?
counsel and violation of his Sixth Amendment
right of confrontation based on the hearsay ev-
A: I was looking for heroin is what I
was looking for.
2 See Anders v. California, 386 U.S. 738
(1967).
4

idence. The district court found that the con-
admission of unreliable hearsay may
fidential informant's statements were offered
nonetheless be harmless in light of other
for the truth of the matter asserted, that they
evidence at trial; by examining whether
were hearsay under Texas law, that the
hearsay was "crucial" or "devastating,"
hearsay violated Gochicoa's rights under the
the court seeks to determine whether the
Confrontation Clause of the Sixth
impermissible hearsay evidence was suf-
Amendment, and that the error had a
ficiently damaging to the defense to
substantial and injurious effect on the verdict
warrant reversal.
under Brecht v. Abrahamson, 507 U.S. 619
(1993) (setting forth "substantial and injurious
Id. We reasoned that the "crucial" and "dev-
effect" test for harmless error on habeas
astating" prong of the Confrontation Clause
review). See Gochicoa I, 972 F. Supp. at 392.
test is "therefore somewhat redundant in light
The court therefore granted the writ, declining
of the harmless error rule." Id. at 447 n.5.4
to reach Gochicoa's claims of ineffective
assistance of counsel. See id.
We concluded that the most important pro-
secution witness was not the hearsay declar-
B.
ant, but rather Carrasco, whom Gochicoa had
On appeal, we determined that the ref-
a full and fair opportunity to cross-examine:
erences to the confidential informant's tip were
hearsay under Texas law but that the wrongful
[T]he tip from the informant standing
admission did not violate the Confrontation
alone did not connect Gochicoa to the
Clause under Dutton v. Evans, 400 U.S. 74,
balloon of heroin found in the public
87 (1970). See Gochicoa II, 118 F.3d at 445-
alleyway; only Carrasco's testimony
48.3 Although the hearsay did not fall within
established an immediate, albeit
a firmly rooted exception to the hearsay rule or
circumstantial, link between Gochicoa
carry any particularized indicia of reliability, it
and the drugs. Carrasco testified that,
was "neither crucial to the prosecution nor
as soon as Gochicoa spotted Officer
devastating to the defense in the context of the
Prieto, he reached into his pocket and
trial as a whole." Id. at 447.
made a gesture as if he were throwing
something to the ground. On the basis
We explained the Dutton "crucial" or
of this information alone, Deputy
"devastating" test as follows:
Gomez found the balloon filled with
heroin. Both Officer Prieto and Deputy
The determination of whether the
Gomez testified that there were no other
evidence is "crucial" or "devastating,"
. . . recognizes that the erroneous
4 Gochicoa II interpreted United States v. Sar-
miento-Perez, 633 F.2d 1092 (5th Cir. Unit A Jan.
3 Because Gochicoa filed his habeas petition
1981), as establishing that, "although `[m]uch has
before enactment of the Antiterrorism and Effective
been made of the "crucial" and "devastating" lang-
Death Penalty Act of 1996 ("AEDPA"), Pub. L.
uage in Dutton . . . ,' [the] test simply restates [the]
No. 104-132, 110 Stat. 1214 (1996), we applied
harmless error rule." Gochicoa II, 118 F.3d at 447
pre-AEDPA standards of review. See Gochicoa II,
n.5 (quoting Sarmiento-Perez, 633 F.2d at 1103
118 F.3d at 444.
n.6).
5

objects or refuse on the ground within a
standard for measuring counsel's
ten yard radius of the area. Carrasco's
performance under the first prong of
testimony, coupled with Gochicoa's
[Washington] is reasonably effective
nervous behavior, presented strong
assistance. That is, the defendant must
circumstantial evidence that Gochicoa
show that counsel's representation fell
had exercised direct physical control
below an objective standard of
over the heroin.
reasonableness. Our scrutiny of
counsel's performance must be highly
Id. at 447. We therefore reversed the grant of
deferential, and we must make every
the writ of habeas corpus and remanded for
effort to eliminate the distorting effects
consideration of Gochicoa's remaining claims.
of hindsight . . . . [T]here is a strong
See id. at 448.
presumption that counsel's conduct falls
within the wide range of reasonable
C.
professional assistance.
On remand, the district court considered
Gochicoa's claim of ineffective assistance of
To satisfy the prejudice prong of
counsel, based on his attorney's failure to
[Washington], the defendant must show
object to the inadmissible hearsay and to seek
that there is a reasonable probability
disclosure of the informant's identity.5 See
that, but for counsel's unprofessional
Gochicoa III, 53 F. Supp. 2d at 943. Unless
errors, the result of the proceeding
there is actual or constructive complete denial
would have been different. A
of the assistance of counsel, a petitioner
reasonable probability is a probability
asserting deficiencies in counsel's performance
sufficient to undermine confidence in the
must satisfy the two-prong test articulated in
outcome. The defendant need not show
Strickland v. Washington, 466 U.S. 668, 692-
that counsel's deficient conduct more
93 (1984).
likely than not altered the outcome in
the case[,] [b]ut it is not enough . . . that
This court has described Washington as
the errors had some conceivable effect
follows:
on the outcome of the proceeding.
To obtain relief, a criminal
Motley v. Collins, 18 F.3d 1223, 1226 (5th
defendant must first demonstrate that
Cir. 1994) (internal citations and quotation
counsel's performance was deficient.
marks omitted).
The defendant must also demonstrate
that counsel's deficient performance
Relying on Harris v. Warden, 152 F.3d 430
prejudiced the defense. The proper
(5th Cir. 1998), cert. denied, 526 U.S. 1053
(1999); White v. Johnson, 153 F.3d 197 (5th
Cir. 1998), cert. denied, 525 U.S. 1149
5
(1999); and Mayabb v. Johnson, 168 F.3d 863
The court noted that Gochicoa did not
(5th Cir.), cert. denied, 528 U.S. 969 (1999),
independently develop the two grounds, because
the district court held that it was precluded
they are both dependent on the trial hearsay. See
Gochicoa III, 53 F. Supp. 2d at 955. Gochicoa
from finding Washington prejudice on account
likewise fails independently to develop the two
of our holding in Gochicoa II that the
grounds on appeal.
6

erroneous admission of hearsay was harmless.
When a criminal defendant receives no
See Gochicoa III, 53 F. Supp. 2d at 950. The
meaningful assistance from his court-appointed
court found a constructive complete denial of
lawyer, he is constructively denied his Sixth
assistance of counsel, however, concluding
Amendment right to counsel and need not
that the errors of counsel were so egregious
prove Washington prejudice.8 "A constructive
that the prosecution's case was never
denial of counsel occurs in only a very narrow
subjected to meaningful adversarial testing,
spectrum of cases where the circumstances
and therefore granted habeas relief. See id. at
leading to counsel's ineffectiveness are so
950, 957.
egregious that the defendant was in effect
denied any meaningful assistance at all."
Gochicoa moved to amend the judgment to
Jackson, 150 F.3d at 525 (quoting Childress,
add an alternative basis, namely that the writ
103 F.3d at 1229).
was also granted under the Washington test.
The court denied the motion but granted a cer-
We have found constructive denial in cases
tificate of probable cause, allowing Gochicoa
involving the absence of counsel from the
to appeal its interpretation of the preclusive ef-
courtroom, conflicts of interest between
fect of our previous opinion.
defense counsel and the defendant, and official
interference with the defense; and have stated
II.
that constructive denial will be found when
Gochicoa's trial counsel, Ted Painter, failed
counsel fails to subject the prosecution's case
to object to the inadmissible hearsay and to
to any meaningful adversarial testing. See id.
seek disclosure of the confidential informant's
For example, where counsel's sole duty was to
identity under one of the exceptions
execute a waiver of petitioner's right to jury
enumerated in TEX. R. CRIM. EVID. 508.6 The
trial, and therefore counsel was appointed one
district court held that these failures
to two minutes before the plea, never
constituted a constructive complete denial of
investigated the facts, never discussed the
counsel and therefore granted the writ without
applicable law with petitioner, and never
considering Washington prejudice. See Gochi-
advised petitioner of the rights petitioner was
coa III, 53 F. Supp. 2d at 956-57. We review
surrendering, petitioner was constructively
findings of fact for clear error and conclusions
denied counsel. See Childress, 103 F.3d at
of law de novo. See Gochicoa II, 118 F.3d at
1223-24, 1228 (Petitioner "does not argue that
444. Both of the Washington prongs and con-
he had a bad lawyer in the . . . proceedings,
structive denial of counsel are mixed questions
but that he had none at all, except for the
of law and fact subject to de novo review.7
purpose of waiving a jury trial.").
In contrast, we have refused to find
constructive denial where defense counsel
investigated only certain issues, where
6 The rule allows the state to refuse to disclose
an informant's identity, subject to three exceptions.
See Gochicoa III, 53 F. Supp. 2d at 956.
8 See Jackson v. Johnson, 150 F.3d 520, 524
7 See Washington, 466 U.S. at 698; Childress
(5th Cir. 1998) (citing United States v. Cronic,
v. Johnson, 103 F.3d 1221, 1224 (5th Cir. 1997);
466 U.S. 648 (1984)), cert. denied, 526 U.S. 1041
Motley, 18 F.3d at 1226.
(1999).
7

counsel's trial presentation was "somewhat
The court's conclusions that Painter "whol-
casual," where counsel failed to pursue a
ly abdicated his role in the adversarial process"
challenge based on racial bias in jury selection,
and that "Painter's performance was not mere-
to object to a variation between the indictment
ly incompetent, it was inert," Gochicoa III, 53
and the jury charge, or to raise a meritorious
F. Supp. 2d at 954, 955, are unsupported and
issue on appeal. See Jackson, 150 F.3d at
erroneous. "When the defendant receives at
525. Thus, prejudice is presumed, and
least some meaningful assistance, he must
Washington's second prong inapplicable, only
prove prejudice in order to obtain relief for
"when the defendant demonstrates that
ineffective assistance of counsel." Goodwin v.
counsel was not merely incompetent but inert,
Johnson, 132 F.3d 162, 176 n.10 (5th Cir.
distinguishing shoddy representation from no
1997).
representation at all." Id. (internal quotation
marks omitted). "When the defendant
Painter testified that he failed to object to
complains of errors, omissions, or strategic
the hearsay beyond his one successful
blunders, prejudice is not presumed; bad
objection because he believed that a less
lawyering, regardless of how bad, does not
argumentative approach was more effective,
support the per se presumption of prejudice."
because he believed the hearsay to be
Id. (internal quotation marks omitted). The
immaterial, and because he planned to
critical question "is whether the [petitioner]
concentrate his defense on witness Michael
asserts that he received incompetent counsel,
Carrasco. In particular, he thought "the thrust
or none at all." Childress, 103 F.3d at 1230.
of the defense in this case was on a possession
issue and the credibility of Mr. Carrasco and
According to Gochicoa, Painter met with
his location and how far away from the scene
him twice, once in the county jail after his ar-
he was." Painter further believed that he did
rest and once just before trial began. Painter
request the identity of the confidential
testified that he is unsure how many times he
informant through his general motion for
met with Gochicoa, but that he reviewed the
discovery, requesting information about "[t]he
district attorney's file on the case, filed a gen-
persons whom the state does not intend to call
eral motion for discovery and inspection of ev-
to testify in this case but who the state knows
idence, visited the crime scene and took
possesses [sic] relevant information concerning
pictures, questioned the police officers, re-
the offense."
searched the confidential informant issue, and
questioned the witnesses, including Michael
Irrespective of whether these allegedly stra-
Carrasco. Painter did not file a specific motion
tegic decisions were erroneous, Painter
to disclose the confidential informant's
presented some meaningful assistance to
identity, nor did he file any motions in limine
Gochicoa. The court therefore erred by
to exclude information of, or evidence from,
applying the Cronic constructive-denial test
the confidential informant. Nevertheless, he
rather than the Washington ineffective-
cross-examined the state's witnesses, made
assistance test.
two successful objections (one based on hear-
say), called Prieto as an adverse witness, and
III.
called two witnesses during the punishment
Having determined that the court erred by
phase.
granting habeas relief based on constructive
8

denial of counsel, we must consider Gochi-
and that, accordingly, counsel's failure to ob-
coa's cross-appeal based on Washington.
ject to that instruction could not constitute in-
Gochicoa bears the burden of proving both
effective assistance. Likewise, in White, 153
Washington prongs, and if one of the elements
F.3d at 208, we stated: "[O]ur conclusion that
is det erminative, we need not consider the
the purported . . . error was harmless
other. See Washington, 466 U.S. at 697;
forecloses any argument that deficiency in the
United States v. Kimler, 167 F.3d 889, 893
performance of [petitioner's] trial counsel pre-
(5th Cir. 1999).
cipitated by the . . . error was prejudicial.".10
The court found that Painter lacked
Given our earlier determination that the
credibility as a witness and that his failure to
"crucial" and "devastating" prong of the Dut-
object arose out of ignorance of the law, not
ton Confrontation Clause test is equivalent to
out of an informed trial strategy. See Go-
harmless error,11 our previous holding that the
chicoa III, 53 F. Supp. 2d at 953-55. The
court likewise rejected Painter's explanation
for his failure to file a motion to disclose the
10 See also Mayabb, 168 F.3d at 869 (noting
informant's identity.9 See id. at 955-56.
that harmless error in a jury charge cannot be the
These findings would certainly satisfy the first
basis for Washington prejudice).
prong of Washington, deficient performance.
The court held, however, that it was precluded
11 The prior panel's conflation of the harmless
from finding Washington prejudice based on
error standard with the "crucial" and "devastating"
our prior opinion. See id. at 950.
prong of Dutton, and its decision that the error was
harmless, bind us as the law of this circuit. Of
course, one panel's dictum cannot bind future
In Harris, 152 F.3d at 440, we held that an
panels. See, e.g., Uniroyal Chem. Co. v. Deltech
erroneous jury instruction was harmless error
Corp., 160 F.3d 238, 252 (5th Cir. 1998). A
faithful reading of Gochicoa II, however, does not
allow the conclusion that the statements at issue
9 The court was especially diligent in reviewing
were mere dictum. A statement should be con-
Painter's alleged strategy, because Painter had
sidered dictum when it "could have been deleted
been subject to bar discipline and had abused
without seriously impairing the analytical
alcohol. See Gochicoa III, 53 F. Supp. 2d at 950-
foundations of the holding--[and], being
51. Painter was appointed to represent Gochicoa
peripheral, may not have received the full and
in January 1992, at which point he had been li-
careful consideration of the court that uttered it."
censed for approximately three years following a
In re Cajun Elec. Power Coop, Inc., 109 F.3d 248,
six-year suspension. When he was appointed to
256 (5th Cir. 1997) (citing Sarnoff v. Am. Home
represent Gochicoa, Painter had neglected a legal
Prods. Corp., 798 F.2d 1075, 1084 (7th
matter and failed to keep a client apprised of her
Cir.1986)) (modification in original, quotation
case, which failings would ultimately lead to his
marks omitted).
being disbarred in 1994. In the disbarment
proceeding, Painter stated that "[d]uring the years
When confronting decisions of prior panels,
1990, 1991, and 1992, my addiction to alcohol
however, we are bound by "not only the result but
greatly affected my professional and personal life."
also those portions of the opinion necessary to that
There is no evidence, however, that Painter's judg-
result . . . ." Seminole Tribe v. Florida, 517 U.S.
ment was affected by alcohol abuse during Gochi-
44, 67 (1996). Moreover, "[a]s a general rule, the
coa's trial.
(continued...)
9

inadmissible hearsay did not satisfy this Dutton
of habeas relief, AFFIRM the refusal to
prong precluded the district court from finding
consider Washington prejudice, and RENDER
the hearsay prejudicial under Washington. See
judgment in favor of the state.
Gochicoa II, 118 F.3d at 447. Because the
hearsay is not sufficiently damaging to warrant
reversal as a Confrontation Clause violation
(meaning any error was harmless), it is not
sufficiently damaging when re-framed as
ineffective assistance of counselSSit remains
harmless.12 We therefore REVERSE the grant
11(...continued)
principle of stare decisis directs us to adhere not
only to the holdings of our prior cases, but also to
their explications of the governing rules of law."
County of Allegheny v. Am. Civil Liberties Union,
492 U.S. 573, 668 (1989) (Kennedy, J. concurring
and dissenting), quoted in Seminole Tribe, 517
U.S. at 67.
In Gochicoa II, we plainly relied on the concept
of harmless error when analyzing the hearsay
testimony under Dutton: First, we explained that
Dutton's "crucial" and "devastating" prong "rec-
ognizes that the erroneous admission of unreliable
hearsay may nonetheless be harmless in light of
12(...continued)
other evidence at trial . . . ." Gochicoa II, 118
whether the error was indeed harmless under
F.3d at 447. We then proceeded to equate that
Washington. Gochicoa contends that, because his
prong with harmless error analysis, see id. at 447
Washington challenge involves his "right, under
n.6, before finally concluding that the admitted
Texas law, to have [hearsay testimony] excluded,"
testimony was neither crucial nor devastating "in
our earlier analysis of the testimony under Dutton
the context of the trial as a whole." Id. at 447.
allowed testimony that Texas law might have
Thus, our finding of harmless error in Gochicoa II
excluded.
is entitled to respect not only as necessary to the
result, but also as an "explication of the governing
Nonetheless, the prior panel concluded that the
rules of law" in this case. See County of
disputed testimony "was neither crucial to the pro-
Allegheny, 492 U.S. at 668.
secution nor devastating to the defense in the
context of the trial as a whole." Id. In light of our
12 Gochicoa urges us to reverse the district
equation of Dutton's crucial and devastating prong
court's conclusion that our earlier holding--that
with the harmless error standard, see id. at 447 n.6,
the hearsay testimony was not "crucial" or
and irrespective of whether the testimony might
"devastating" for purposes of a Dutton challenge
have been excluded under Texas law, its inclusion
under the Confrontation Clause, see Gochicoa II,
is harmless as a matter of law, and the district
118 F.3d at 447--precludes it from inquiring into
court correctly concluded that it could not revisit
(continued...)
the issue.
10

DENNIS, Circuit Judge,
harmless error test at all.
concurring
in
part
and
Instead, it applied an inverted
dissenting in part:
sufficiency of evidence test:
If the erroneously admitted
I concur in part II of the
hearsay
evidence
"standing
majority opinion insofar as it
alone" was not a sufficient
holds that the district court
basis for a conviction, it
erred in finding a constructive
therefore is not "crucial and
denial of counsel. I disagree,
devastating" and hence could
however, with part III, which
not be grounds for reversal as
rejects Gochicoa's cross-appeal
a Confrontation Clause
b a s e d o n S t r i c k l a n d .
violation.
Therefore,
I
respectfully
(a)
The Erroneous Dictum
dissent.
of Gochicoa II
I.
The Supreme Court and this
Gochicoa II's suggestion that
court have in the past taken
the "crucial" and "devastating"
great pains to point out that
factor of the Dutton
h e a r s a y e r r o r s a n d
Confrontation Clause test is
Confrontation Clause violations
equivalent to the harmless
are not fungible. On the
error test for erroneously
contrary, they have held that
admitted
hearsay
was
an
the
overlap
between
an
erroneous dictum; actually,
admission of hearsay and a
Gochicoa II did not apply a
Confrontation Clause violation
is not complete; either may
11

occur without the other. This
apparent
that
the
Sixth
court, in Favre v. Henderson,
Amendment's Confrontation
464 F.2d 359, 362 (5th Cir.
Clause and the evidentiary
1972)
(quoting
Green
v.
hearsay rule stem from the same
California, 399 U.S. 149, 155-
roots. But this court has never
156 (1970)), stated:
equated the two, and we decline
While it may readily be
to do so now."); United States
conceded that hearsay rules
and
the
Confrontation
v. Sarmiento-Perez, 633 F.2d
Clause
are
generally
designed to protect similar
1092, 1099 (5th Cir. 1981)
values, it is quite a
different thing to suggest
("Conceptually,
at
least,
that
the
overlap
is
complete and that the
evidence sufficiently reliable
Confrontation Clause is
nothing more or less than a
to qualify for admission under
codification of the rules
of
hearsay
and
their
a recognized exception to the
exceptions as they existed
historically at common law.
hearsay rule might yet offend
Our decisions have never
established such a
confrontation
values;
and,
congruence; indeed, we have
more than once found a
conversely, the admission of
violation of confrontation
values even though the
incriminating hearsay evidence
statements in issue were
admitted under an arguably
might well avoid impinging
r e c o g n i z e d h e a r s a y
exception. * * * The
confrontation rights.") (citing
converse is equally true:
merely because evidence is
WEINSTEIN'S EVIDENCE ¶ 800[04];
admitted in violation of a
long-established
hearsay
MCCORMICK ON EVIDENCE, § 252);
rule does not lead to the
automatic conclusion that
Cupit v. Whitley, 28 F.3d 532,
confrontation rights have
been denied.
536 (5th Cir. 1994) ("Although
See also Dutton v. Evans, 400
the confrontation clause and
U.S. 74, 86 (1970) ("It seems
the hearsay rule are related,
12

the Sixth Amendment right to
into consideration in
confrontation does not perforce
determining whether a
preclude the admission of any
Confrontation Clause violation
hearsay testimony."); Johnson
has occurred. The Supreme
v. Blackburn, 778 F.2d 1044,
Court has never said that only
1051 (5th Cir. 1985) (same);
the first and fifth factors
Spears v. Circuit Court, Ninth
need be considered or that any
Judicial District, 517 F.2d 360
factor
can
be
totally
(5th Cir. 1975) (same) (citing,
disregarded. Indeed, this
inter alia, Hoover v. Beto, 467
c o u r t h a s r e p e a t e d l y
F.2d 516 (5th Cir. 1972); Park
demonstrated the importance of
v. Huff, 506 F.2d 849 (5th Cir.
considering all the Dutton
1975)).
factors. See, e.g., Cupit, 28
In my opinion, the panel in
F.3d at 537 (analyzing the five
Gochicoa II misinterpreted and
Dutton factors separately and
misapplied
the
controlling
stating that courts must assess
precedents of the Supreme Court
"a host of considerations" in
and this Circuit in concluding
deciding
whether
or
not
that
there
had
been
no
wrongfully admitted hearsay
violation of Gochicoa's
evidence violates the
Confrontation Clause right.
Confrontation Clause); Johnson
Contrary to those decisions,
v. Blackburn, 778 F.2d 1044,
Gochicoa II seeks to truncate
1051 (5th Cir. 1985) (placing
and prioritize the factors of
emphasis on the first and
Dutton and progeny to be taken
fourth factors of the Dutton
13

test only because factors two
prior cases in which much more
and three were not applicable);
damaging confrontation errors
Spears, 517 F.2d at 365-66
had occurred. Gochicoa II
(examining the five Dutton
badly misread the meaning of
factors); Favre, 464 F.2d at
this Circuit's discussion of
363-64
(conducting an
Dutton's phraseology in
individual examination of nine
Sarmiento-Perez, 633 F.2d at
factors described in Dutton).
1103 n.6. Before penning
To focus exclusively on the
footnote 6 of Sarmiento-Perez,
first and fifth factors ignores
Judge Tate surveyed Supreme
not only precedent in this
Court precedent. He noted
Circuit but also important
that,
constitutional considerations.

Nor has the Supreme Court or
this court ever said that the
D u t t o n " c r u c i a l " a n d
"devastating" prong is really a
substitute for a harmless error
test rather than one of the
factors to be weighed in
determining whether a
Confrontation Clause violation
has occurred. In fact, Dutton
used those words to distinguish
14

In Dutton v. Evans, 400
U.S. 74, 91 S.Ct. 210, 27
L.Ed.2d 213 (1970), the
Supreme Court held that
t h e r i g h t o f
confrontation
was
not
violated by the admission
of
a
coconspirator's
inculpatory out-of-court
declaration
that
was
admissible
under
the
state's liberal hearsay
e x c e p t i o n , b u t
inadmissible under the
narrower federal hearsay
exception.
The
Dutton
court focused upon the
now- familiar "indicia of
reliability" standard as
t h e t h r e s h o l d o f
admissibility under the
confrontation clause. . .
Sarmiento-Perez, 633 F.2d at
1103. In so holding, the
Dutton
court
distinguished
earlier Supreme Court precedent
by stating:
This
case
does
not
as did Douglas.... It
involve evidence in any
does not involve any
sense "crucial" or
s u g g e s t i o n o f
"devastating," as did all
prosecutorial misconduct
the cases just discussed.
or even negligence, as
It does not involve the
did ... Douglas....
use, or misuse, of a
confession made in the
coercive atmosphere of an
official
interrogation,
15

Id. (quoting Dutton v. Evans,
40 U.S. at 86-87).
At the bottom of the above
paragraph, Judge Tate attached
footnote 6. Judge Tate did not
say that the "crucial" and
"devastating"
language
in
Dutton and Douglas "simply
restates harmless error rule."
Gochicoa II, 118 F.3d at 447
n.5. In footnote 6 of
Sarmiento-Perez
Judge
Tate
actually said:
Much has been made of the
lapse. The alleged
" c r u c i a l " a n d
statements clearly bore
"devastating" language in
on a fundamental part of
Dutton and Douglas. The
the State's case against
thrust of the language in
the
petitioner.
The
these decisions may be
c i r c u m s t a n c e s a r e
read as intending nothing
therefore
such
that
more than the observation
"inferences from a
that the evidence at
witness's
refusal
to
issue was or was not
answer
added
critical
sufficiently damaging to
w e i g h t t o t h e
the
defense
to
be
prosecution's case in a
considered grounds for
form
not
subject
to
reversal:
cross-examination,
and
thus unfairly prejudiced
This
case
cannot
be
the defendant."
characterized
as
one
where the prejudice in
the denial of the right
of cross-examination
constituted a mere minor
16

Sarmiento-Perez, 633 F.2d at
public alleyway; only
1103 n.6 (quoting Douglas v.
C a r r a s c o ' s t e s t i m o n y
Alabama, 380 U.S. 415, 420
established
an
immediate,
(1965) (citations omitted)).
albeit circumstantial, link
between
Gochicoa
and
the
Going from bad to worse, the
drugs." Gochicoa II, 118 F.3d
court in Gochicoa II, after
at
447
(emphasis
added).
mistakenly equating "crucial
"Although the informant's tip
and devastating" with "harmless
certainly bolstered the state's
error," proceeded to ignore the
case," the Gochicoa II court
hearsay "harmless error" test
concluded that "the hearsay
and to convert the "crucial and
evidence was neither crucial
devastating" factor into an
nor devastating in the context
inverted pro-prosecution
of the trial as a whole."13 Id. In
sufficiency of evidence test.
13
In contrast to the court's
Almost immediately after its
approach in Gochicoa II, other
courts have applied the "crucial
misinterpretation of Sarmiento-
and devastating" prong of Dutton
in an even-handed way more in
Perez, the court proceeded to
keeping with Dutton's holding
that it be considered as merely
reject the district court's
one
of
many
factors
or
considerations. For example, in
finding that the hearsay was
Cupit, the court "[v]iew[ed] the
evidence
about
which
Cupit
"crucial
and
devastating"
complained through the . . .
prism of considerations" of the
other four factors. Cupit, 28
because "the tip from the
F.3d at 537. See also Favre, 464
F.2d at 364-67 (evaluating the
informant standing alone did
evidence
without
explicitly
applying a formalistic test);
not connect Gochicoa to the
Spears,
517
F.2d
at
367
( e m p l o y i n g a l o o s e r
balloon of heroin found in the
(continued...)
17

other words, Gochicoa II reasoned
the Dutton factors, also determine the nature
incoherently that if erroneously admitted
of any error committed before deciding
hearsay evidence was by itself insufficient to
whether it justifies reversal. See Cupit, 28
support the defendant's conviction, it could
F.3d at 537. See also Spears, 517 F.2d at 367
not have been "crucial and devastating;"
(applying a harmless error test after examining
therefore, it must have been harmless and not
the factors in Dutton); Favre, 464 F.2d at 366
reversible error.
(same); Hoover v. Beto, 467 F.2d 516, 538
(b)
The Proper Confrontation
(5th Cir. 1972) (same). Because the errors of
Clause Violation And
Harmless Error Tests
Gochicoa's counsel were his repeated failures
In a proper Confrontation Clause analysis
during trial to recognize and object to the
under Dutton, the court must, after analyzing
introduction of the inculpatory hearsay of an
out-of-court accuser, they were trial errors.14
13(...continued)
"significantly effect test" and
14
In addition to trial error,
stating "[i]t is inconceivable
there are two other types of
that
the
testimony
of
the
error. The second type is
receptionist
or
nurse
might
structural error that vitiates
significantly affect the jury's
the proceedings. See Cupit, 28
basis for evaluating the validity
F.3d at 537-38. A "[s]tructural
of the report and the opinions
error is error `affecting the
based upon it") (emphasis added);
framework within which a trial
Gochicoa II, 118 F.3d at 449 n.8
proceeds.'" White v. Johnson, 153
(Jolly, J., dissenting) ("I can
F.3d 127, 201-02 (5th Cir. 1998)
agree that the properly admitted
(quoting Arizona v. Fulminante,
evidence
in
this
case
was
499 U.S. 279, 310 (1991)). This
sufficient to allow a rational
type of error is so serious that
jury to convict Gochicoa, but
it cannot be considered harmless
that is not a question before
(e.g., a biased judge or the
this court today. A
denial
of
counsel
to
the
Confrontation Clause violation
defendant). See Cupit, 28 F.3d
may
occur
when
inadmissible
at 537-38. The third type of
evidence was devastating to the
error recognized by the Court in
defense, even if the properly
Brecht v. Abrahamson, 507 U.S.
admitted evidence, viewed in
619 (1993), is that of "an
isolation,
is
sufficient
to
unusual
case"
in
which
"a
sustain the verdict.").
(continued...)
18

Indeed, the court in Cupit explicitly stated that
United States, 328 U.S. 750 (1946) ("whether
admission of hearsay testimony is classified as
the . . . error `had substantial and injurious
a "classic trial error," so actual prejudice must
effect or influence in determining the jury's
be shown and a harmless error test should be
verdict"), instead of the "harmless beyond a
conducted. In Cupit, a federal habeas
reasonable doubt" standard in Chapman v.
proceeding concerning Cupit's second degree
California used to determine the
murder conviction in state court, this Circuit
effect of constitutional errors
held that the testimony of investigating officers
on direct review. See Cupit,
28 F.3d at 537-39; see also
and witnesses about hearsay statements of an
United States v. Chapman, 193
alleged murder victim prior to his death did
F.3d 375, 379 (5th Cir. 2000).
not violate the accused's Confrontation Clause
Under this habeas "harmless
rights. Cupit, 28 F.3d at 536-37. But
error" test, the conviction
assuming that they did, the court found that
cannot stand if the error had
their admission was harmless error under
"substantial influence" or "if
Brecht, explaining that Brecht required the
one is left in grave doubt."
application of the standard in Kotteakos v.
Cupit, 28 F.3d at 538 (citing
Kotteakos, 328 U.S. at 765;
14(...continued)
Brecht, 113 S.Ct. at 1724
deliberate and especially
egregious error of the trial
type, or one that is combined
(Stevens,
J.
concurring)).
with a pattern of prosecutorial
misconduct, might so infect the
"Our task . . . is to determine
integrity of the proceeding as to
warrant the grant of habeas
. . . whether the petitioner
relief, even if it did not
substantially
influence
the
has successfully established in
jury's verdict." Id. at 638 n.9.

our minds grave doubt as to the

19

question of whether the assumed
himself in virtual equipoise as
wrongfully admitted hearsay
to the harmlessness of the
influenced the conviction." Id.
error." O'Neal, 513 U.S. at
at 538-39 (citing Lowery v.
435. Thus, the ultimate
Collins, 996 F.2d 770, 773 (5th
question becomes "whether the
Cir. 1993)). Thus, in this
petitioner has successfully
last respect, the Cupit court
established in our minds grave
anticipated the Supreme Court's
doubt as to the question of
holding in O'Neal v. McAninch,
whether the assumed wrongfully
513 U.S. 432, 436 (1995)
admitted hearsay influenced the
("When a federal judge in a
conviction." Cupit, 28 F.3d at
habeas proceeding is in grave
538-39. In evaluating the
doubt about whether a trial
trial error, the "strength of
error of federal law had
the prosecution's case is
`substantial
and
injurious
probably
the
single
most
effect
or
influence
in
important factor in determining
determining jury's verdict,'
whether
the
error
was
that error is not harmless.
harmless." Id. at 539.
And, petitioner must win.");
While the court in Gochicoa
see also California v. Roy, 519
II purported to rely on a
U.S. 2 (1996). By "grave
harmless error test, it is
doubt," the Supreme Court
clear that the majority did not
explained, "we mean that in the
undertake the above Brecht-
judge's mind, the matter is so
O'Neal-Roy analysis. The text
evenly balanced that he feels
of the opinion evidences use of
20

a different standard. Because
ineffective
assistance
of
the "crucial and devastating"
counsel claim.
T
o
Dutton factor is not the same
determine the binding effect of
as the Brecht "harmless error"
Gochicoa II on this panel, the
test,
and
is
certainly
law of the case doctrine must
different from Gochicoa II's
be
applied. First, the
eccentric "inverted sufficiency
doctrine of the law of the case
test," the Gochicoa II majority
"`posits that when a court
fell into compounded legal
decides upon a rule of law,
errors and failed to apply the
that decision should continue
correct Confrontation Clause or
to govern the same issues in
harmless error analysis.
subsequent states of the same

case.'" Christianson v. Colt
II.
Indus. Operating Corp., 486
Because Gochicoa II's errors
U.S. 800, 816 (1988) (quoting
were either dictum or the
Arizona v. California, 460 U.S.
clearly erroneous application
605, 618 (1983)). This rule
of an incorrect legal principle
serves to promote policies of
that would work a manifest
both finality and judicial
injustice, we are not bound by
efficiency. See id. With
those mistakes as the law of
respect to rules of law, the
this case; in Gochicoa II we
law of the case doctrine
must
apply
correct
legal
applies even on interlocutory
principles in deciding the
appeals. See Royal Ins. Co. v.
Quinn-L Capital Corp., 3 F.3d
21

877, 881 (5th Cir. 1993). With
decision
unless
`(i)
the
regard to factual matters, this
evidence on a subsequent trial
doctrine applies only to issues
was substantially different,
actually decided and does not
(ii) controlling authority has
apply to obiter dicta. See 18
since made a contrary decision
JAMES WM. MOORE ET. AL., MOORE'S
of the law applicable to such
FEDERAL PRACTICE § 134.20[3], at
issues, or (iii) the decision
134-45 (3d ed. 1999) ("The
was clearly erroneous and would
doctrine does not apply to
work a manifest injustice.'"
statements made by the court in
Free v. Abbott Labs., 164 F.3d
passing, or stated as possible
270, 272-73 (5th Cir. 1999)
alternatives.") If the issue
(quoting North Miss. Comms.,
has
been
decided
either
Inc. v. Jones, 951 F.2d 652,
explicitly or by implication,
656 (5th Cir. 1992)).
however, the law of the case
In the present case, we are
doctrine governs. See Royal
not bound by the dictum or the
Ins., 3 F.3d at 881.
rule of decision adopted by
As applied in this Circuit,
Gochicoa
II
for
several
the law of the case doctrine is
reasons. First, Gochicoa II is
not absolute, and, in fact,
not law of the case with regard
application of this doctrine is
to ineffective assistance of
discretionary. Courts,
counsel because Gochicoa II did
however, "will generally refuse
not
address
whether
the
to revisit a prior panel's
admission
of
the
hearsay
evidence was harmless error
22

under
the

Brecht-Cupit
Furthermore, a finding by the court in
analysis. Instead, the court
Gochicoa II that the error was not "crucial and
in
Gochicoa
II,
while
devastating" does not bar this court from
purporting to examine harmless
considering Gochicoa's ineffective assistance
error
by
its
misguided
of counsel claim. This Circuit has recognized
application of the "crucial and
that an error does not have to be "crucial and
devastating" factor and an
inverted sufficiency of
devastating" to be harmful under Brecht.
evidence test, not only failed
"[H]earsay testimony that is neither `crucial'
to correctly apply the Dutton
nor `devastating' under Dutton may
Confrontation Clause factors
nevertheless amount to reversible error under
but also failed to conduct the
Kotteakos." United States v. Arias-Diaz, 497
Brecht harmless error test.15
F.2d 165, 172 (5th Cir. 1974). Consequently,
even a proper finding that an error was not
15
Although the State of Texas
"crucial and devastating" does not bar a
contends that White v. Johnson,
153 F.3d 197 (5th Cir. 1998), and
Harris v. Warden, 152 F.3d 430,
subsequent finding of a "substantial and
440
(5th
Cir.
1998),
bar
consideration of the ineffective
injurious" error. Thus, this court should
assistance
of
counsel
claim
(because an earlier finding of
address Gochicoa's Sixth Amendment claim
harmless error prevents
examination of the ineffective
assistance of counsel claim),
on a clear slate, free of the clearly erroneous
these
cases
prove
wholly
inapplicable given the finding
and manifestly unjust rules of law applied by
that the court in Gochicoa II did
not apply the harmless error test
at all. Moreover, because Mayabb
Gochicoa II.
v. Johnson, 168 F.3d 863 (5th Cir.
1999), was not a habeas case and,
Assuming, arguendo, that the "crucial and
therefore, may have employed a
different harmless error
standard, that case is doubly
devastating" finding were broad enough to
inapplicable.
23

subsume the Brecht harmless error test, this
counsel. To determine whether the plaintiff
court would not be bound by Gochicoa II
was denied effective assistance of counsel,
because a "decision that was clearly erroneous
courts must apply the two-pronged test of
and would work a manifest injustice" is an
Strickland, 466 U.S. 668, 692-93 (1984). To
exception to the law of the case doctrine.
prevail on a claim of ineffective assistance of
Free, 164 F.3d at 272-73. In the pithy words
counsel, a petitioner must first show that
of the Seventh Circuit, Gochicoa sets off the
counsel's performance was deficient. That is,
clearly erroneous standard because the topsy-
he must show that "counsel's representation
turviness of its rule application "strike[s] us as
fell below an objective standard of
wrong with the force of a five-week-old,
reasonableness." Id. This showing is often
unrefrigerated dead fish." Id. (quoting Parts &
difficult, as the Supreme Court employs a
Elec. Motors, Inc. v. Sterling Elec. Inc., 866
"highly deferential" approach that accords a
F.2d 228, 233 (7th Cir. 1988)). As the district
"strong presumption that counsel's conduct
court stated, "Gochicoa was represented by
falls within the wide range of reasonable
counsel whose inaction and lack of basic
professional assistance." Id. at 689. The
knowledge resulted in a guilty verdict followed
second prong of the test requires that the
by a sentence of sixty (60) years in Texas
petitioner show prejudice due to counsel's
prison."
performance. See id. In defining prejudice,
III.
this Circuit has held that
Finally, application of Strickland to the
present case requires the conclusion that
Gochicoa was denied effective assistance of
24

the defendant must show that there is
a reasonable probability that, but for
counsel's professional errors, the result
of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome. The
defendant need not show "that
counsel's deficient conduct more likely
than not altered the outcome in the
case." But it is not enough, under
Strickland, "that errors had some
conceivable effect on the outcome of
the proceeding."

Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.
the day of the trial understood that the
1994) (quoting Strickland, 466 U.S. at 693-
statements of the informant were hearsay...."
94)) (internal citations omitted).
Order Granting Habeas Writ at 17.
Concerning the first prong of Strickland,
With respect to the prejudice prong,
there appears to be little doubt that counsel's
petitioner can clearly demonstrate a reasonable
inept performance was deficient. As the
probability that, but for counsel's deficient
district court observed, knowledge of the very
performance, "the result of the proceeding
basic rules of evidence is essential to any
would have been different." The hearsay
competent representation in a criminal trial.
testimony established a substantial and direct
By failing to object to "obviously inadmissible
link between Gochicoa and the heroin dealer
hearsay," Gochicoa's counsel demonstrated hi s
who lived in the very street and block where
ignorance of these basic rules. The district
Gochicoa was seen walking and the illegal
court unequivocally stated, "Except for
drugs were later found. Without the tipster's
defense counsel, everyone in the courtroom on
out-of-court statement that Gochicoa was
25

buying from that dealer at that location at that
counsel's deficient performance in allowing the
time, the state's case, as likely as not, would
admission of the hearsay, a reasonable
have foundered because it would have rested
probability exists that the result of the
only upon the tenuous basis of Gochicoa's
proceeding would have been different.
nervousness and Carrasco's testimony that at
We should not assume that we are bound
dusk, he saw Gochicoa from 150 feet make a
by Gochicoa II's distorted application of the
throwing motion but did not see what object,
"crucial and devastating" factor as an inverted
if any, he threw. See Gochicoa II, 118 F.3d at
sufficiency of evidence test. Thus, an
442, 447. As Judge Jolly noted in his dissent,
independent evaluation should be undertaken
"[T]he evidence that Gochicoa was in the area
with respect to Gochicoa's ineffective
to buy heroin [from an identified dealer who
assistance of counsel claim applying the
lived there] provides a crucial link between the
Strickland analysis. Accordingly, I would
defendant and the drugs." Id. at 449 (Jolly, J.,
AFFIRM the grant of habeas, REVERSE the
dissenting). Moreover, the prosecution's
district court's refusal to consider Strickland
repeated reliance on the hearsay evidence
prejudice, and RENDER judgment on the
underscores its importance. See id. (Jolly, J.,
ineffective assistance of counsel claim in favor
dissenting). Even the majority in Gochicoa II
of Gochicoa.
admits that the remaining evidence was solely
"circumstantial" and that the hearsay testimony
"certainly bolstered the state's case. . . ." Id.
at 447. Thus, any confidence in Gochicoa's
conviction is undermined because, but for
26