USCA11 Case: 20-11790 Date Filed: 02/14/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11790
____________________
WILLIE THOMAS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:18-cv-62348-PCH
____________________
USCA11 Case: 20-11790 Date Filed: 02/14/2022 Page: 2 of 4
2 Opinion of the Court 20-11790
Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
The parties and the district court are familiar with the details
of this case, so we will skip to the bottom line. We have decided
that the most efficient way to address this appeal, and a fair way, is
to order a limited remand of the case for the district court to make
fact findings relevant to the issue of whether permitting the peti-
tioner to amend his habeas petition another time would be futile.
The transcript of petitioner’s state trial contains his colloquy
with the court about whether he wanted to testify. It indicates that,
after having been correctly advised by his attorney about the cir-
cumstances under which the jury would be informed of the nature
of his eleven prior felony convictions, petitioner four times in-
formed the state court that he did not want to testify (twice
through his counsel and twice himself). See Doc. 19-4 at 9, 13, 15,
17. He was firm and unequivocal about that. Only after he had,
four times, announced his decision not to testify did the state court
judge make the statement that the parties agree misinformed the
petitioner. The statement was that if he took the stand, the jury
could be told how many of his prior convictions involved crimes of
dishonesty even if he admitted the existence and number of them.
After the court’s statement, nothing changed; the petitioner reiter-
ated his decision not to testify.
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20-11790 Opinion of the Court 3
Because the petitioner had already announced multiple
times that he had decided not to testify before the state court made
the arguable misstatement to him, it appears that his claim he
would have testified but for the court misstating the law to him
would fail. If so, amending his petition to include that claim would
be futile. Futility, of course, is an appropriate basis for denying a
motion to amend. See, e.g., Bryant v. Dupree,
252 F.3d 1161, 1163
(11th Cir. 2001).
In his brief to us, however, the petitioner asserts that but for
the state court’s erroneous advice to him about the law, he would
have changed his mind and announced that he did want to testify
after all. There is nothing in the record to support that assertion,
but it might be because the futility issue was neither raised by the
government nor reached by the district court.
But the futility issue was raised before us, and it involves
credibility and factual issues that can and should be addressed by
the district court on a limited remand. If the petitioner continues
to insist that he would have changed his mind but for the state
judge’s misstatement about the law, the district court should per-
mit petitioner to testify to that at an evidentiary hearing. The dis-
trict court is, of course, the factfinder and will be the sole judge of
the petitioner’s credibility. The court is not required to believe the
petitioner’s testimony even if it is not rebutted by any other testi-
mony. See, e.g., Hawk v. Olson,
326 U.S. 271, 279 (1945) (“This, of
course, does not mean that uncontradicted evidence of a witness
must be accepted as true on the hearing. Credibility is for the trier
USCA11 Case: 20-11790 Date Filed: 02/14/2022 Page: 4 of 4
4 Opinion of the Court 20-11790
of facts.”); Negrón v. City of Miami Beach,
113 F.3d 1563, 1570
(11th Cir. 1997) (noting that “the district court as factfinder was free
to reject” a witness’ “testimony, even if it was uncontradicted”);
Tyler v. Beto,
391 F.2d 993, 995 (5th Cir. 1968) (“Credibility is for
the trier of the facts and the uncontradicted testimony of a witness
does not have to be accepted.”).
We remand to the district court for the limited purpose of
making credibility and fact findings about whether the petitioner
would have changed his mind and decided to testify at trial if the
state court had not made the allegedly incorrect statement. The
district court should decide whether the motion to amend should
be denied on futility grounds. After it decides, the case and record
should be returned to this Court. We retain jurisdiction to decide
this appeal after the case comes back to us.
VACATED AND REMANDED FOR LIMITED PURPOSE;
JURISDICTION RETAINED.1
1 The government’s motion to strike is DENIED as moot.
