Price v. Johnson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11069
Summary Calendar
WALTER HENRY PRICE,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-1189-X
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August 22, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges:
PER CURIAM:*
Walter Price, Texas prisoner #808397, appeals the district court’s dismissal of his claim that
two codefendants (Darren Bealer and Albert Williamson), who testified that Price was involved in the
subject robbery, lied at trial. Price’s claim was supported by recant ing affidavits from Bealer and
Williams. The district court dismissed the claim because Price had not submitted the affidavits with
his 28 U.S.C. § 2254 petition. A certificate of appealability (COA) was granted on this issue and the
respondent was directed to file in this court the affidavits, if they existed, and the relevant portions of
the trial record. The respondent has filed the affidavits and the state court records.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
We decline to review the respondent’s argument, which was raised for the first time on appeal,
that Price procedurally defaulted his recanting-affidavits claim because he submitted the affidavits to
the Texas Court of Criminal Appeals with one of his petitions for discretionary review but did not
include them with his state habeas application. See Fisher v. State of Texas, 169 F.3d 295, 301 (5th
Cir. 1999).
Although the respondent contends that the affidavits were fabricated, such a determination
is a factual finding which we cannot make with the record before us. Nor are we able to determine
if the affidavits are believable. See Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996). We are
also not able to determine whether the affidavits, if genuine and believable, would have materially
affected Price’s trial. Such findings and determinations should be made by the district court. See
Fairman v. Anderson, 188 F.3d 635, 646-47 (5th Cir. 1999).
The dismissal of Price’s claim that Bealer and Williams gave false testimony at trial as stated
in the affidavits, which no court has considered, is VACATED. The case is REMANDED, and the
district court should determine whether the affidavits are genuine, whether the affidavits are
believable, and whether, if genuine and believable, such would have materially affected Price’s trial.
VACATED and REMANDED.
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