Full opinion text
MEMORANDUM OPINION JUSTICE, District Judge. I. Introduction John Cockrum, through his next friend Mandy Welch, Esq., brings the above-entitled and numbered application seeking the writ of habeas corpus. After reviewing the evidence and arguments of the parties, it is found, pursuant to the following findings of fact arid conclusions of law, that the application should be granted in part and denied in part and that a writ of habeas corpus should conditionally issue. II. Factual and Procedural Background In May 1986, in DeKalb, Texas, John Cockrum shot and killed Eva May, during the course of á robbery of the small convenience store that she owned and operated. Cockrum was arrested along with his accomplice, Jerry Morgan, and indicted for capital murder by a Bowie County grand jury. After trial in December 1986, a jury found Cockrum guilty of intentionally causing the death of another in the course of aggravated robbery, and affirmatively answered all special issues, as required by former Tex.Code Crim.P. art. 37.071. In accordance with the jury’s findings, Cockrum was convicted of capital murder and sentenced to death by lethal injection.. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal, and the United States Supreme Court denied Coekrum’s petition for the writ of certiorari. Cockrum v. State, 758 S.W.2d 577 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1358, 103 L.Ed.2d 825 (1989). Cockrum filed an application for the writ of habeas corpus in Texas state court, before the same judge who sat at Cockrum’s trial. Without an evidentiary hearing, the state district court entered findings of fact and conclusions of law, which the Texas Court of Criminal Appeals found to be supported by the record. In a per curiam opinion, the Court of Criminal Appeals denied the habeas corpus application. Ex parte Cockrum, No. 23,249-02 (Tex.Crim.App.1992). In 1993, Cockrum applied for the writ of habeas corpus in federal court, and his execution was stayed pending review of the application. Since its filing, this action has proceeded along a tortuous path, requiring, among other things, the determination of the applicant’s competency to waive further review of his conviction and sentence, In re Cockrum) 867 F.Supp. 484 (E.D.Tex.1994), the substitution of counsel for the applicant, and the resolution of discovery disputes, Cockrum v. Johnson, 917, F.Supp. 479 (E.D.Tex.1996). In February 1996, a hearing on the merits of Cockrum’s application was finally held. On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Pub.L. 104-132, 110 Stat. 1217, was signed into law, and a new issue was injected into this action — whether the newly enacted law applies to Cockrum’s application and if it does, what it means. The State argues that Cockrum’s application must be evaluated under the. newly amended provisions of 28 U.S.C. § 2254, and that under these provisions, all relief to the applicant must be denied. Cpckrum, on the other hand, contends that the AEDPA does not retroactively apply to pending cases, and that, contrary to the State’s interpretation, he is entitled to the.writ even under the newly amended provisions. The parties have fully briefed all issues, including the impact of the new law, and all claims for relief in the application are now ripe for adjudication. This opinion proceeds in four parts. First, the retrospective effect of the new law is considered, and it is determined that the newly enacted amendments to the habeas corpus statute do not apply to this case, but that the uncertain state of the law justifies analyzing Cockrum’s application, in the alternative, under the AEDPA. Second, the applicants challenge to the presumption of correctness of the state habeas court’s fact-findings is addressed, and it is found that the presumption should not attach. Third, the merits of Cockrum’s claims are considered, and it is concluded that because Cock-rum received ineffective assistance in the punishment phase of his trial, the writ of habeas corpus should conditionally issue. Finally, Coekrum’s application is analyzed, in the alternative, under the AEDPA, and it is likewise determined that Cockrum is entitled to the writ of habeas corpus due to the ineffective assistance of counsel. III. Effect of Antiterrorism and Effective Death Penalty Act Title I of the AEDPA significantly curtails the scope of federal habeas review. The law amends chapter 153 of United States Code title 28, by creating stricter filing deadlines for habeas corpus applications, narrowing the circumstances in which an appeal may be taken, altering the standards by which a federal court reviews an applicant’s claims, and restricting the ability of a prisoner to bring more than one application for relief. AEDPA §§ 101-106 (to be codified at 28 U.S.C. §§ 2244, 2253, 2254 & 2255). The AEDPA also creates a new chapter — title 28, chapter 154 — establishing procedures that apply only to prisoners in state custody under a death sentence. AEDPA § 107 (to be codified at 28 U.S.C. §§ 2261-2266). At issue here is § 104, the amendments to 28 U.S.C. § 2254. The State does not argue that § 107, the new chapter governing death penalty eases, applies to this action, despite the fact that Cockrum is a prisoner in state custody under a death sentence. This is so because the applicability of the new death penalty chapter is predicated on the adoption of a mechanism for the appointment and payment of counsel in state post-conviction proceedings. AEDPA § 107(a) (to.be codified at 28 U.S.C. § 2261). No such mechanism was in place when Cockrum’s habeas corpus application was considered by the Texas state system. Thus, § 107 does not apply to this action, and is relevant here only to the extent it sheds light on the retrospective effect of § 104. Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), provides the framework for determining the initial question of whether the AED-PA applies to pending cases on its date of enactment. First, “where the congressional intent is clear, it governs”; if the statute evinces a clear intent for prospectivity or retroactivity, there is no need to analyze the issue further. Id. at -, 114 S.Ct. at 1496 (quoting Kaiser Aluminum & Chem. Corp. v. Bonjomo, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990)). If congressional intent is ambiguous, however, then it must be determined whether the statute has “retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at-, 114 S.Ct. at 1505. If the statute would operate retroactively in this manner, then it does not apply to pending cases. If the new law does not have retroactive effect — ie., it is a rule of procedure, or a jurisdictional statute changing the tribunal to hear the case, or a law altering the standard for granting purely prospective relief — then the new statute does apply to pending cases. Reviewing the AEDPA under the first part of the Landgraf test, it is concluded that Congress did not intend § 104 of the AEDPA to apply to actions pending on the date of its enactment, and thus, it is unnecessary to consider, under the second part of the Landgraf test, whether the law would have retroactive effect. In drafting § 107, Congress stated explicitly that the new death-penalty chapter applies retroactively: “Chapter Í54 of title 28, United States Code ... shall apply to cases pending on or after the date of enactment of this Act.” AEDPA, § 107(c). In contrast, the amendments to Chapter 153, including § 104, lack any provision specifying whether they are prospective or retroactive. .“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Gozlon-Peretz v. United States, 498 U.S.395, 404, 111 S,Ct. 840, 847, 112 L.Ed.2d 919 (1991) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)) (internal quotation marks omitted). Applying this maxim to the AED-PA, it is found that because § 107 contains an explicitly retroactive provision, and because § 104 contains no retroactive provision, Congress intended the latter to have only prospective- effect. Accordingly, because Cockrum’s application was pending on the date that the AEDPA was signed into law, it is found that § 104 does not apply to this action. It is recognized that the Supreme Court in Landgraf, applying the same canon of statutory construction, found a similar, although much weaker, argument to be insufficient to establish congressional intent on the subject of a statute’s retroactivity. See Landgraf, 511 U.S. at ---& - n. 12, 114 S.Ct. at 1494-95 & 1495 n. 12 (holding that two minor, expressly prospective, provisions of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, do not support a negative inference that the rest of the law should be applied retroactively). It is also recognized that the courts that have addressed the issue of the AEDPA’s effect on pending cases have not all reached the same conclusion as is reached in this case. Indeed, it is difficult to find any points of agreement at all among the many recent decisions on this difficult and important question. Some have found, as it is found here, that the AEDPA does not apply to pending cases because that is what Congress intended. See United States v. Trevino, No. 96 C 828, 1996 WL 252570, *3 n. 1 (N.D.Ill. May 10, 1996); Warner v. United States, 926 F.Supp. 1387, 1390 n. 4 (E.D.Ark. 1996); see also Edens v. Hannigan, 87 F.3d 1109, 1111 (10th Cir.1996). At least one court, however, has found congressional intent to be the opposite, i.e., that the AEDPA should apply retroactively. Leavitt v. Arave, 927 F.Supp. 394, 397 (D.Idaho 1996). Several courts have reached a third conclusion— that congressional intent is ambiguous; however, even those opinions that have applied the second part of the Landgraf test have not reached consistent conclusions. Compare Lennox v. Evans, 87 F.3d 431, 432-35 (10th Cir.1996) (holding that the AEDPA’s amendments to 28 U.S.C. § 2253(c)(2) have no retroactive effect) with Boria v. Keane, 90 F.3d 36, 38 (2d Cir.1996) (per curiam) (“[A]pplication of the new statute to this case would be retroactive.”) and Trevino, 1996 WL 252570, *3 n. 1 (holding that the AEDPA has a “truly retroactive effect”). In the Fifth Circuit, the retroactivity of the new habeas provisions remains an open question. Collins v. Johnson, 89 F.3d 210, 216 (5th Cir.1996); Mendez-Rosas v. INS, 87 F.3d 672, 676 (5th Cir.1996) (per curiam). In light of this uncertainty, it would be imprudent to fail to consider the AEDPA altogether in this opinion. Thus, Cockrum’s claims will be analyzed first under pre-AEDPA law, and second, in the alternative, his claims will be evaluated under the AEDPA. IV. Presumption of Correctness of State Factfindings Cockrum challenges the presumption of correctness ordinarily afforded a state court’s findings of fact in a federal habeas corpus proceeding. 28 U.S.C. § 2254(d). Although Cockrum relies on a number of § 2254(d)’s eight enumerated exceptions, he generally alleges that the presumption should not attach because the factfinding process was inadequate. See Andrews v. Collins, 21 F.3d 612, 618 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995); Black v. Collins, 962 F.2d 394, 400 (5th Cir.1992), cert. denied, 504 U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992) (both treating challenges under multiple statutory exceptions as a general challenge to the adequacy of the factfinding procedures employed by the state court). Specifically, Cockrum contends that he did not receive a full and fair hearing because a live, evidentiary hearing was not held and because the state judge and prosecutor engaged in ex parte communications. A. Adequacy of Paper Hearing In February 1992, Cockrum filed his petition in state court, along with a motion for discovery and a motion for an evidentiary hearing. After several extensions were granted, the State filed its response on August 18, 1992. Eight days later, on August 26, 1992, the trial judge, without ruling on the motion for discovery or the motion for an evidentiary hearing, signed findings of fact and conclusions of law. In a per curiam order, the Texas Court of Criminal Appeals denied the petition on December 14, 1992. Paced with widely divergent factual allegations and with affidavits attesting to contradictory versions of events, the state habeas court resolved all factual disputes against Cockrum without hearing any testimony. In Buxton v. Lynaugh, 879 F.2d 140, 142-47 (5th Cir.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990), it was held that such a procedure is “full and fair” within the meaning of § 2254(d), as long as the state habeas judge was the same judge who presided at trial. That is the case here — the state judge that conducted Cock-ram’s trial also heard his petition for habeas relief. As the Fifth Circuit has explained, the reason that a “paper hearing” can be adequate in such a case is that the trial judge is “in an optimal position to assess the credibility of the affidavits” before it. May v. Collins, 955 F.2d 299, 314 (5th Cir.), cert. denied, 504 U.S. 901, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992). When a state judge must “choos[e] between competing versions of the actual events at trial ..., he [can] compare the information presented in the various affidavits against his own firsthand knowledge of the trial.” Id. In such a situation, live testimony is not necessary, and the federal court should generally accord a presumption of correctness to the state judge’s conclusions. Consistent with this rationale, the Fifth Circuit has upheld “paper hearing” determinations of ineffective assistance claims, on the theory that the state habeas judge had an opportunity to observe the conduct of defense counsel at trial. E.g., Sawyers v. Collins, 986 F.2d 1493, 1504-05 (5th Cir.), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993); Clark v. Collins, 956 F.2d 68, 72 (5th Cir.), cert. denied, 503 U.S. 901, 112 S.Ct. 1254, 117 L.Ed.2d 485 (1992). Similarly, when an applicant alleges that testimony given at trial was false, the trial judge’s firsthand observations of the witness on the stand provide a legitimate basis for rejecting the witness’s recanting affidavit. E.g., Ellis v. Collins, 956 F.2d 76, 79-80 (5th Cir.) (per curiam), cert. denied, 503 U.S. 915, 112 S.Ct. 1285, 117 L.Ed.2d 510 (1992); May, 955 F.2d at 314. While acknowledging this general rale, Cockrum argues that a paper hearing was insufficient in this case to resolve the factual dispute underlying his claim that the State misrepresented the terms of a key witness’s plea bargain. Factually, this claim alleges that the prosecution struck a deal with Jerry Morgan, who was Cockram’s accomplice and the primary witness at Cockram’s trial, assuring Morgan of an early release on parole; and further, that this deal was improperly withheld from the jury. In support of these allegations, Cockrum submitted the affidavit of Jerry Morgan to the state habeas court, an affidavit which asserted that the prosecutor “promised me that I would be paroled as soon as I was eligible if I cooperated and provided the State with a statement.” Petition for Writ of Habeas Corpus, No. 86-F-144 — 5, app. A, ¶5 (Affidavit of Jerry Morgan). With its response, the State submitted an affidavit from the prosecutor in question, as well as an affidavit from Morgan’s defense attorney. These two affidavits, which are essentially identical, contradict Morgan: “The State did not agree to an early parole release date or promise early release on parole as part of the plea bargain agreement.” Response to Petitioner’s Application for Writ of Habeas Corpus, No. 86-F-144-5, Ex. B, ¶ 5 (Affidavit of Paul Hoover); id., Ex. D, ¶ 5 (Affidavit of James Elliott). The state habeas court, which not only observed Morgan’s testimony at Coekrum’s trial, but also took Morgan’s guilty plea, found that no deal regarding parole had been made, obviously crediting the State’s affiants over Morgan. See Findings of Fact and Conclusions of Law, No. 86-F-144-5, ¶ 2 (5th Dist.Ct.Bowie County, Tex.1992) (“The plea bargain did not include an agreement for early release on parole.”). Cockrum argues that the rationale for the rule developed in Buxton and May depends on the ability of the judge to draw on his observations at trial when assessing the pleadings and affidavits before him at the habeas stage. Cf. Vuong v. Scott, 62 F.3d 673, 684 (5th Cir.) (“[T]he fact that the judge has a personal recollection of the proceeding actually contributes to the adequacy of a paper hearing rather than detracting from it.”), cert. denied, — U.S. -, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995). When the applicant asserts facts that occur outside the courtroom, Cockrum points out, the trial judge is in no better position to rule on the issue at the habeas stage than a state judge who did not preside over the applicant’s trial. Cf. Nethery v. Collins, 993 F.2d 1154, 1157 n. 8 (5th Cir.1993) (finding paper hearing inadequate when habeas judge different from trial judge), cert. denied, — U.S. -, 114 S.Ct. 1416, 128 L.Ed.2d 87 (1994). Without the judge’s benefit of firsthand observation, Cockrum argues that the primary rationale for deferring to the “paper hearing” disappears, and - an evidentiary hearing is necessary to resolve factual disputes, especially those raised by contradictory affidavits. Emphasizing that the adequacy of a paper hearing must be determined on a case-by-case basis, May, 955 F.2d at 312 (“[I]t is necessary to examine in each case whether a paper hearing is appropriate to the resolution of the factual disputes underlying the petitioner’s claim.”), Cockrum argues that in this case, the state judge had no satisfactory basis for resolving the factual dispute raised by the affidavits of the prosecutor and Morgan’s attorney, on the one hand, and Morgan, on the other. Because the plea bargaining process occurred outside the courtroom, Cockrum contends that the state judge was not in a position to evaluate the credibility of the affiants on the point of whether a deal regarding parole had been struck. While the general thrust of Cockrum’s argument has merit, its application to the facts of this case is foreclosed by Amos v. Scott, 61 F.3d 333, 346-17 (5th Cir.), cert. denied, — U.S. -, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995). The applicant in Amos asserted a claim nearly identical to Cockrum’s — “that the State failed to disclose that it had reached an agreement with [the witness/accomplice] in exchange for his testimony and failed to correct false testimony elicited from [the witness/accomplice].” Id. at 346. As with Cockrum, the state judge that presided over Amos’s trial also presided over the state habeas proceedings. With his state habeas petition, Amos submitted an affidavit from the witness/accomplice asserting that a deal had been struck with the State, a deal which was not revealed to the jury at trial. Id. Without hearing testimony, the state habeas court found that no deal was made between the State and the witness/accomplice. In federal court, Amos argued that a paper hearing was inadequate to resolve this claim, and that therefore the presumption of correctness should not apply. The Fifth Circuit unequivocally rejected this argument: [A] factfinding procedure that involves credibility determinations and is based on a “paper hearing” affords the habeas petitioner a full and fair hearing when the state court judge who presided over the petitioner’s trial conducts the habeas proceeding. Whenever such a judicial identity exists, the presumption of comctness applies, and a federal habeas court must accord the presumption of correctness to the factual findings. In the instant case, the disputed facts stem from state habeas credibility assessments that were made by the same state court judge who had presided over Amos’ trial. We are satisfied, therefore, that the fact-finding procedure followed by that judge afforded Amos a full and fair hearing. Id. at 347 (footnote omitted) (emphasis added). Applying Amos to this case, it is concluded that the lack of a live, evidentiary hearing on the “parole promise” claim did not deprive Cockrum of a full and fair hearing. B. Ex Parte Communications Both the judge and the attorney representing the State of Texas at the state habeas level testified that they had several ex parte telephone conversations concerning Cockrum’s petition. Deposition of the Honorable Jack Carter, Jan. 17, 1996, at 9; Deposition of Winonia Griffin, Jan. 18, 1996, at 9-10. The judge, without notifying Cockrum, initiated the first telephone call shortly after the State filed its response. The judge discussed the merits of Cockrum’s claims with the State’s attorney, and asked her to submit proposed findings of fact and conclusions of law for his review. Deposition of Winonia Griffin, at 9-10. The State’s attorney did so, but did not serve the document on Cockrum. Id. at 11-12. The judge called the State’s attorney back, and either asked her to make modifications after further discussion of the merits, Deposition of the Honorable Jack Carter, at 11-12, 26, or simply told her to remove the word “Proposed” from the title “Proposed Findings of Fact and Conclusions of Law” and to resubmit the document for his signature, Deposition of Winonia Griffin, at 9. Once again, Cockrum was not notified of the conversation, nor was he given any opportunity to review the first or final draft. After the requested revisions were made, the document was sent to the judge, who signed it as his findings of fact and conclusions of law. Although these ex parte conversations were informal, the State was advocating its position on the merits of the petition. Deposition of the Honorable Jack Carter, at 20, 26-27. Obviously, it is highly improper for the judge to entertain argument in this manner. It is important, however, to identify precisely why it is improper. Contrary to Cockrum’s argument, the adoption of findings prepared by the State’s attorney, and the concomitant deference to her research, is not objectionable, although it is certainly not laudable. Nichols v. Scott, 69 F.3d 1255, 1277 (5th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996). What is improper is the fact that the document was solicited, submitted, and signed without any notice to Cockrum, see Brown v. Dixon, 891 F.2d 490, 495 n. 12 (4th Cir.1989) (although adopting a prosecutor’s suggestions are not improper, “the impropriety arose from the judge’s failure to notify defense counsel of his course”), cert. denied, 495 U.S. 953, 110 S.Ct. 2220, 109 L.Ed.2d 545 (1990), and that discussions concerning the substance of the petition occurred outside Cockrum’s presence, without his knowledge or approval. It is also important to stress that not all ex parte contacts between prosecutor and judge deprive a party of a fair hearing'within the meaning of § 2254(d). For instance, the fact that a judge merely received a proposed order outside the presence of opposing counsel does not justify setting aside the presumption of correctness. Campbell v. Wainwright, 738 F.2d 1573, 1576 (11th Cir.1984), cert. denied, 475 U.S. 1126, 106. S.Ct. 1652, 90 L.Ed.2d 195 (1986). Similarly, an ex parte letter from prosecutor to judge, pointing out that a draft order fails to address certain claims for postconviction relief, can be said to be “innocuous and the nondisclosure [of the letter] harmless beyond a reasonable doubt.” Brown, 891 F.2d at 495 (citations omitted). In determining whether ex parte contact requires setting aside the presumption of cor-' rectness, therefore, it is necessary to examine the nature of the communication to assess its impact on the factfinding process. Cf. Rushen v. Spain, 464 U.S. 114, 119-20, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (holding that ex parte communication between judge and juror must be evaluated for prejudicial effect). Here, although the judge and attorney could not'recall much detail, they both admitted to discussing the merits of Cockrum’s claims, and the judge concedes that the prosecutor was advocating the State’s position during their conversations. They specifically recall discussing Cockrum’s claim that he received ineffective assistance of counsel at the punishment phase, a claim which the judge and attorney felt turned on an application of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). See Deposition of the Honorable Jack Carter, at 19-20; Deposition of Winonia Griffin, at 10; see also Findings of Fact and Conclusions of Law, ¶ 28 (“Evidence of physical and psychological abuse,' drug abuse, and voluntary intoxication does not rise to the level of Penry mitigating evidence. Defense Counsels were not ineffective for failing to present such evidence.”); Response to Petitioner’s Application for Writ of Habeas Corpus, at 29-30 (“Applicant essentially argues that his trial counsel was ineffective because they failed to present mitigating evidence in accord with Penry v. Lynaugh.”). It is found that the ex parte communications at issue in this case were not innocuous or harmless, but rather struck at the heart of the factfinding process. The Fifth Circuit considered the effect of ex parte contacts on the presumption of correctness in James v. Collins, 987 F.2d 1116, 1122-23 (5th Cir.), cert. denied, 509 U.S. 947, 114 S.Ct. 30, 125 L.Ed.2d 780 (1993), and held the presumption to apply despite allegations that the state habeas court’s findings resulted from an ex parte collaboration between judge and prosecutor. James, however, is distinguishable from the instant case for several reasons. First, and foremost, the federal district court in James found no evidence that any misconduct had occurred. Id. at 1123. In this ease, there is ample evidence of ex parte discussions between judge and prosecutor touching on the merits of Cockrum’s claims for relief. Second, the applicant in James did not “seriously contest” the accuracy of the majority of the state court’s findings, id. at 1122, and indeed, most of the applicant’s claims, which included broad-based challenges to Texas’s capital-murder sentencing scheme, did “not depend on the facts as developed by the state court,” id. at 1123 n. 9. Cockrum, by contrast, vigorously contests the accuracy of the state court’s findings, and most of his claims— particularly the ineffective assistance claim and the claim that the State misrepresented the terms of Morgan’s plea bargain — are fact-intensive. “In capital proceedings ' generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (plurality opinion). The factfinding procedure employed by the state habeas court in this case fell well short of this aspiration, and lacked two fundamental safeguards of due process — notice and the opportunity to be heard. It is found that the ex parte communications between judge and prosecutor undermined the integrity and reliability of the factfinding process so as to deny Cockrum á fair hearing at the state habeas level. Under any of several statutory exceptions, 28 U.S.C. § 2254(d)(2), (6) & (7), it is found that the presumption of correctness afforded a state habeas court’s findings of fact should not apply in this case. C. Default The State contends that even if the state court’s factfinding procedures were inadequate, Cockrum is not entitled to complain of these inadequacies in federal court because he raised no objection before the Texas Court of Criminal Appeals. Drawing on the procedural default doctrine and the Supreme Court’s decision in Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), the State argues that in light of the plenary authority of the Court of Criminal Appeals in habeas corpus proceedings, it is incumbent upon a petitioner to object to any perceived errors in the state district court’s factfinding process. By failing to so object, an applicant relinquishes the right to complain in federal court of those defects, unless the applicant can demonstrate cause and prejudice. Thus, in this case, the State argues that within the three-month period between the entry of findings of fact by the district court and the denial of the application by the Court of Criminal Appeals, Cock-rum could and should have objected that the factfinding process was inadequate because of the ex parte communications between judge and prosecutor. In response, Cock-rum does not argue that cause and prejudice justify his failure to object; rather, he argues that he has not defaulted in any way his right to challenge the presumption of correctness. Initially, it bears emphasis that the procedural default doctrine, in which federal review is barred because the applicant has failed to comply with an adequate and independent- state procedural rule, is not applicable to this case. Cf. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). The doctrine applies “only if the state court denied relief because of the defendant’s violation of state procedural requirements,” Shaw v. Collins, 5 F.3d 128, 131 (5th Cir.1993) (emphasis in original), and the Court of Criminal Appeals did not rest its denial of any of Cockrum’s claims on the failure to raise an objection of the sort described by the State. Moreover, no provision in Texas law requires an applicant to file objections with the Court of Criminal Appeals, and the failure to .object to the adequacy of the lower court’s factfinding process does not waive review of such errors. Cf. Coleman, 501 U.S. at 727, 111 S.Ct. at 2553 (applying procedural default doctrine to rule specifying that “no appeal shall be allowed unless a notice of appeal is filed with the trial court within 30 days of final judgment”); Wainwright v. Sykes, 433 U.S. 72, 86, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977) (applying doctrine to contemporaneous objection rule, interpreted as requiring that objection be raised “at trial or not at all”); Francis v. Henderson, 425 U.S. 536, 537, 96 S.Ct. 1708, 1709, 48 L.Ed.2d 149 (1976) (applying doctrine to state rule providing that unless objection was timely made, “all such objections shall be considered as waived and shall not afterwards be urged or heard”). - Clearly, the Court of Criminal Appeals can and does remedy inadequate factfinding procedures in the absence of objections by the-litigants. E.g., Ex parte Adams, 707 S.W.2d 646, 647 (Tex. Crim.App.1986); Ex parte Acosta, 672 S.W.2d 470, 472 (Tex.Crim.App.1984); Ex parte Campos, 613 S.W.2d 745, 746 (Tex. Crim.App.1981); Ex parte Harris, 593 S.W.2d 330, 333 (Tex.Crim.App.1979). Indeed, contrary to the State’s argument, it is uncertain that any objection raised by Cockrum would have been considered at all. Texas Rule of Appellate Procedure 213 provides for summary disposition by the Court of .Criminal Appeals after an initial screening of a habeas corpus application — a screening that- Cockrum’s application did not survive— and suggests that briefing and argument will be entertained only after the Court of Criminal Appeals determines that the application should be submitted to the court for more thorough review. The State relies most heavily on Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), in which the Supreme Court determined the standard to apply when a habeas corpus applicant .seeks an evidentiary hearing after failing to properly develop material facts in state court. In doing so, the Court partially overruled Townsend v. Sain, 372 U.S. 293, 313, 83. S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), the decision in which the Court originally identified the six circumstances when a federal court must hold an evidentiary hearing on a habeas corpus application challenging a state conviction. One of the Townsend circumstances is when “the material facts were not developed at the state-court hearing,” id. at 313, 83 S.Ct. at 757, as long as the failure to develop the facts was not attributable to the “inexcusable neglect” of the applicant, id. at 317, 83 S.Ct. at 759. The Townsend Court defined inexcusable neglect by citing to Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963), a procedural default case which announced the “deliberate bypass” standard, whereby an applicant’s neglect is deemed inexcusable only if the applicant intentionally forgoes an opportunity for state review. Because the Court ultimately abandoned Fay’s deliberate bypass standard in the procedural default context in favor of the more stringent cause and prejudice standard, Coleman, 501 U.S. at 750, 111 S.Ct. at 2565, the Court in Keeney similarly replaced the deliberate bypass standard approved in Townsend with the cause and prejudice standard. See Keeney, 504 U.S. at 8, 112 S.Ct. at 1719. Thus, after Keeney, an applicant seeking a federal evidentiary hearing on the grounds that the material facts were not adequately developed at the state-court level must show cause and prejudice for the applicant’s failure to develop them. The State seeks to extend Keeney to this case, but an applicant’s inexcusable neglect, under a deliberate bypass standard or otherwise, has never been a part of .the inquiry into whether a state hearing was full and fair. Rather, such an inquiry is confined to the factor at issue in Keeney — whether the material facts were adequately developed at the state court hearing. In Townsend, the Court was concerned that an applicant would take advantage of this factor by “deliberately withholding evidence from the state factfinder in the hope of finding a more receptive forum in a federal court.” Keeney, 504 U.S. at 16, 112 S.Ct. at 1724 (O’Connor, J., dissenting); see Townsend, 372 U.S. at 317, 83 S.Ct. at 759 (inexcusable neglect requirement prevents “needless piecemeal presentation of constitutional claims”); cf. McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (applying eause and prejudice standard to abuse of the ‘writ doctrine because of similar incentives to withhold claims for manipulative purposes). With respect to the denial of a full and fair hearing, however, Townsend expressed no such concern: “Even where the procedure employed does not violate the Constitution, if it appears to be seriously inadequate for the ascertainment of the truth, it is the federal judge’s duty to disregard the state findings and take evidence anew.” Townsend, 372 U.S. at 316, 83 S.Ct. at 759. The State nonetheless argues that a concern for abuse similar to the concern underlying Keeney justifies the application of a eause and prejudice standard in the context of this case — ie., whenever a lower state court deprives an applicant of a full and fair hearing, the applicant has an incentive to withhold objection from a higher state court with the expectation that a federal court will set aside the presumption of correctness. To the extent that this is a realistic concern, the procedural default doctrine and. the exhaustion of state remedies requirement, 28 U.S.C. § 2254(b), adequately protect against such abuse and appropriately accommodate., the interests of comity and federalism identified by the State. These doctrines assure that an applicant will take full advantage of the State’s procedures for preserving error and pursuing appellate remedies before a federal court considers his claims for relief. Nothing in § 2254(d) or the Supreme Court’s decisions adopting the cause and prejudice standard suggests that a federal court must presume correct facts found pursuant to a process that is less than full and fair simply because an applicant did not raise an objection that the state court did not require, and mo$t likely did not .allow, him to make. It is found that Cockrum’s failure to lodge an objection with the Court of Criminal Appeals concerning the lower court’s factfinding procedures has no impact on the determination of whether the presumption of correctness should attach in this case. D. Conclusion Cockrum was denied a fair hearing of his claims at the state habeas leyel because of ex parte communications between the' state judge and prosecutor. Accordingly, it is found that the state court’s findings of fact are not entitled to a presumption of correctness, and that the relevant facts underlying Cockrum’s claims for relief should be rédetermined based on the evidence heard at the federal evidentiary hearing. Y. Claims for Relief In the state habeas proceeding and in his initial filings in federal court, Cock-rum raised over twenty grounds for relief. By the time of the evidentiary hearing, all but1 the following four claims had been abandoned: (1) a claim that the State, in violation of due process, suppressed Impeachment evidence and failed to correct misleading testimony concerning the terms of Jerry Morgan’s plea bargain; (2) a -claim that Cockrum’s due process rights' were violated in connection with the denial of his motion to transfer venue;' (3) a claim that the jury’s discussions of the possibility of parole during deliberations at the punishment phase denied Cockrum due process; and (4) a claim that Cockrum was denied the effective assistance of counsel, guaranteed by the Sixth Amendment, in the punishment phase of his trial. Cockrum bears the burden of proving these claims by a preponderance of the evidence. See Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938); United States v. Atkins, 834 F.2d 426, 435 (5th Cir.1987). A. Suppression of Evidence and Misleading Testimony Jerry Morgan, who drove Cockrum to and from the scene of the crime, was originally indicted for capital murder in Bowie County. After jury selection began for his trial, Morgan’s attorney negotiated a plea bargain, whereby Morgan pleaded guilty to burglary of a habitation. Morgan agreed to testify against Cockrum, which he did, and the State agreed to recommend a ninety-nine year sentence, which is what Morgan received. Despite the lengthy term of years, this was a favorable deal for Morgan because, under the prevailing practice at that time in Texas, Morgan knew that he would likely be paroled in approximately six years. The preponderance of the evidence indicates that during the plea negotiations, Morgan’s attorney told Morgan, in the presence of the prosecution, that accepting the State’s offer and pleading guilty to a ninety-nine year séntenee would likely mean release on parole after approximately six years. The prosecution did not explicitly promise Morgan that he would be eligible for parole in approximately six years, or that Morgan would be paroled when first eligible. Although Morgan did not make a quid pro quo agreement with the State for early release on parole in exchange for his testimony, it appears that the prosecution did agree not to write a letter opposing Morgan’s parole at such time as the Texas Board of Pardons and Paroles reviewed his parole eligibility. Whenever a Texas state inmate becomes eligible for parole, the district attorney in the county of conviction, among other persons, is notified and provided with an opportunity to write a letter to the Texas Board of Pardons and Paroles, supporting or opposing the inmate’s parole. The letter is merely advisory; the Board of Pardons and Paroles, not the district attorney, possesses the authority to grant or deny parole. Morgan’s attorney testified that when negotiating a plea, it is his standard practice to obtain assurances that the prosecution will not write a letter opposing his client’s parole, and he vaguely remembers making such a request on Morgan’s behalf. Transcript, Feb. 20, 1996, at 139-42 (testimony of Paul Hoover). Morgan, on the other hand, specifically remembers that the prosecution agreed to recommend that he make parole at the first opportunity, but this seems unlikely in light of his attorney’s testimony. Transcript, Feb. 21, 1996, at 192-93 (testimony of Jerry Morgan). At the other extreme, one of the prosecutors who'negotiated the plea insisted that he would never make any promises about a defendant’s parole in the course of a plea bargain. Deposition of James Elliott, Jan. 17, 1996, at 45, 50, 55. He conceded, however, that his superior, who was the District Attorney of Bowie County and who participated in Morgan’s plea negotiations, may have agreed to a request from' Morgan’s attorney not to oppose his client’s parole. Id. at 49-50. The prosecutor' also testified that the Bowie County District Attorney’s Office has never opposed parole for persons, such as Morgan, convicted on a guilty plea, id. at 48, and thus, it seems plausible that the such a condition would be agreed to when proposed by Morgan’s attorney. Although the evidence is not unequivocal, it is found that the State promised not to oppose Morgan’s parole. This promise was not disclosed to Cockrum’s attorneys. At Cockrum’s trial, Morgan testified that he had pleaded guilty and received a ninety-nine year sentence, but no mention was made of his parole eligibility or the agreement not to oppose parole: Q. [A]re you under a sentence for ninety-nine (99) years? A. I am. Q. Did you plead guilty to the burglary of Eva May’s store? A. I did. Q, And then were you sentenced? A. I was. Q. How many years, please? A. Ninety-nine (99) years. Statement of Facts, at 1253. Although the defense did not know of the State’s promise not to oppose Morgan’s parole, Cockrum’s counsel was aware, either through his own knowledge of Texas parole practice or through conversations with Morgan’s attorney, that Morgan would serve only a fraction of his actual sentence. Proof of the attorney’s knowledge is in his trial notes, which describe the nature of Morgan’s plea bargain as “serve only 6-7 yrs on 99 year sentence.” Respondent’s Exhibit No. 17; Transcript, Feb. 22, 1996, at 36 (testimony of Rick Shumaker). He decided not to ask Morgan about his parole eligibility after determining that the potentially damaging effect of this information outweighed any benefits of revealing it to the jury. Specifically, he feared that if the jury realized how little time a person could actually serve on a lengthy prison sentence, then it would be less likely to consider a life sentence for Cockrum in the event he were found guilty. Transcript, Feb. 22, 1996, at 36-37 (testimony of Rick Shumaker). Under the principles of due process developed in Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 765-66, 31 L.Ed.2d 104 (1972), the State must disclose material impeachment evidence to a defendant, and must also correct false testimony when it appears. See Amos, 61 F.3d at 346 & n. 49. Cockrum contends that at his trial, the State violated these principles in two distinct ways (1) by concealing the agreement that the Bowie County District Attorney’s Office would not oppose Morgan’s parole when he came up for review before the Board of Pardons and Paroles, and (2) by eliciting testimony concerning the length of Morgan’s sentence that misled the jury into believing Morgan would serve ninety-nine years in prison. Each claim is evaluated in turn. 1. Concealment of Promise Not to Oppose Parole In order to be entitled to relief, Cockrum must demonstrate: (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defense, and (3) the evidence was material. Spence v. Johnson, 80 F.3d 989, 994 (5th Cir.1996). “[Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); see also Kyles v. Whitley, — U.S. --, -, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). “In assessing the materiality of undisclosed impeachment evidence, ‘we must consider the nature of the impeachment evidence improperly withheld and the additional evidence of the defendant’s guilt independent of the disputed testimony.’ ” Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.) (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir.1989)), cert. denied, — U.S. -, 115 S.Ct. 754, 130 L.Ed.2d 653 (1994). The assurances made by Morgan’s attorney in the presence of the prosecution do not create a promise by the State of early parole, see Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir.1985), or early parole eligibility, see Hayes v. Maggio, 699 F.2d 198, 202-04 (5th Cir.1983). Thus, the State had no duty to disclose any information about Morgan’s parole eligibility — information that was, in any event, known by Cockrum’s attorneys. What the prosecution did promise and did not reveal to the defense was that when Morgan became eligible for parole, the Bowie County District Attorney’s Office would not write a letter of opposition to the Board of Pardons and Paroles. In evaluating the materiality of concealing a similar promise, the Fifth Circuit has recently held: [T]he fact that such promises were made is not material on the record before us. No reasonable jury would have believed [the witness/aeeomplice] fabricated his testimony — incriminating himself and his brother in kidnapping, rape, and murder — and pleaded guilty to two life sentences in prison based on oral promises that two individuals would not oppose his parole efforts some time in the distant future. Such promises were hardly a guarantee that [the witness/accomplice] would be paroled, nor did they bind future ... County officials. Spence, 80 F.3d at 996. Evaluating the promise’s potential impact in this case in light of this holding confirms that the failure to disclose the promise to the defense was not material. As identified in Spence, the incremental impeachment value of the evidence is slight, and it is highly unlikely, and certainly not reasonably probable, that the jury would have discredited Morgan’s testimony if it had known of the promise. Indeed, the jury may never have learned of the promise if it had been disclosed to Cock-rum — the attorney who cross-examined Morgan doubted that he would have brought the evidence out for the same reasons he did not question Morgan about the parole implications of a ninety-nine year sentence. Transcript, Feb. 22, 1996, at 63-64 (testimony of Rick Shumaker). Furthermore, although Morgan’s testimony was the primary evidence establishing Cockrum as the triggerman, there was sufficient evidence connecting Cockrum to the crime for the jury to convict. Shortly before and after the murder, several witnesses saw Cockrum a short distance from the crime scene with a gun of the same type used to kill the victim. Statement of Facts, at 1178 (testimony of Kenneth Thom); id. at 1300-03 (testimony of Jana McGraw); id. at 1242-44 (testimony of Patrick BesanWMatthews, M.D.). Cockrum was apprehended after fleeing to Arkansas and cheeking into a motel under an assumed name, and despite having been impecunious several days before the robbery, he possessed a significant sum of money at the time of his arrest. Id. at 1306-07 (testimony of Jana McGraw); id. at 1324 (testimony of Thomas Hodge). Certainly, the State’s ease would have been weakened if Morgan had been discredited, but it cannot be said that an acquittal was reasonably probable in the absence of his .testimony. 2. Misleading testimony Cockrum concedes that Morgan’s testimony was not perjurious. He rests his Napue/Giglio claim instead on the argument that Morgan’s “carefully tailored” testimony deceived the jury into believing that he would serve ninety-nine years behind bars, and thus created a misleading impression of the nature of Morgan’s plea bargain. Without an understanding of Morgan’s parole eligibility, Cockrum argues, the jury could not see what Morgan stood to gain by pleading guilty and agreeing to testify. Cockrum further alleges that the misimpression was not an innocent mistake, but rather part of a deliberate strategy by the State — i.e., the prosecution crafted Morgan’s plea bargain with an eye toward bolstering Morgan’s credibility before Cockrum’s jury and with the knowledge that early parole eligibility was crucial to Morgan’s decision to accept the deal, asked intentionally leading questions to create the misleading impression that Morgan would serve ninety-nine years in prison without parole, and capitalized on this impression at closing argument. The State, in response, not only opposes this claim on the merits, but also argues that relief would be barred under the nonretroactivity doctrine, which generally prohibits the application of new rules of criminal law on collateral review. See generally Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). The question of retroactivity must be addressed first. Penry v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 2943-44, 106 L.Ed.2d 256 (1989); Smith v. Black, 904 F.2d 950, 981-82 (5th Cir.1990), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992). Notwithstanding the presence of two narrow exceptions, a federal court is barred from considering a claim on collateral review unless, at the time that the conviction became final, a state court “would have felt compelled by existing precedent to conclude that the rule [the applicant] seeks was required by the Constitution.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990)); see also Graham v. Collins, 506 U.S. 461, 465-67, 113 S.Ct. 892, 897, 122 L.Ed.2d 260 (1993). The rule Cockrum seeks here is that due process is violated when the truthful testimony of a witness creates a false impression that serves to conceal the true nature of a witness’s plea bargain. Well before Cockrum’s conviction became final, the Fifth Circuit, as well as other circuits, held that “technically correct, yet seriously misleading” testimony could fall within the due process concerns of Napue and Giglio. E.g., Blankenship v. Estelle, 545 F.2d 510, 513 (5th Cir.1977); Dupart v. United States, 541 F.2d 1148, 1149-50 (5th Cir.1976) (per curiam); see United States v. McClintic, 570 F.2d 685, 692 (8th Cir.1978); Boone v. Paderick, 541 F.2d 447, 450 (4th Cir.1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977); United States v. Harris, 498 F.2d 1164, 1169 (3d Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 665 (1974); see also Memorandum Opinion and Order, Nov. 15, 1995, at 12 (holding that Cockrum’s conviction became final, for purposes of Teague, on March 6, 1989). In.each of these cases, due process was violated because the effect of the witness’s truthful answer was to falsely deny what they were being asked — whether a deal had been struck with the prosecution. For example, the testimony of a witness who asserts that no “case” is pending against him and that his testimony is “voluntary” — when in fact he had been promised immunity against pending state and federal charges and received monetary payment in exchange for his testimony — is “highly misleading to the jury,” although “technically not perjurious.” Dupart, 541 F.2d at 1150; see also Blankenship, 545 F.2d at 513 (“[W]e will not tolerate prosecutorial participation in technically correct, yet seriously misleading, testimony which serves to conceal the existence of a deal with material witnesses.”). Similarly, in reviewing testimony that included a witness’s assertion that he had not struck a deal with the United States Attorney’s office of a particular district — when he had in fact struck a deal with the United States Attorney’s office in another district — the Fifth Circuit remarked, “The testimony heard by the jury, if not outright lies, certainly conveyed the false impression that none of these three witnesses had received any promises of leniency or other considerations.” United States v. Barham, 595 F.2d 231, 241 (5th Cir.1979). In light of these decisions, it is found that ruling in Cockrum’s favor on this claim would not retroactively apply a new rule of law. While not barred, this claim fails on the merits. First, Morgan’s testimony was not so misleading as to rise to the level of a due process violation. It is one thing to say that a witness’s truthful, but misleading responses to questions inquiring whether a deal has been struck creates a false impression that a deal has not been struck. It is another to say that the truthful description of a witness’s sentence has the effect of falsely concealing a deal struck with the State, or that the truthful assertion of the length of a witness’s sentence is “highly misleading” in the absence of an estimate of the witness’s parole eligibility. In other words, for a witness to say that he has no deal with a particular United States Attorney’s Office is, in effect, to deny that he has any deal at all with the government. For Morgan to say he is under a ninety-nine year sentence, on the other hand, is not to deny that a deal has been reached in exchange for his testimony or to deny the possibility that he will be paroled. Morgan’s testimony was neither perjurious nor the type of “technically correct, yet seriously misleading” testimony condemned in Dupart, Blankenship, and Bar-ham. Additionally, this claim must fail because Cockrum’s counsel was aware of the parole implications of Morgan’s sentence, and chose to avoid the issue on cross-examination. Even if the jury were under the misimpression that Morgan would serve ninety-nine years in prison without parole, it was a misimpression that the defense, as a result of reasonable trial strategy, decided not to correct. While Giglio/Napue error has been found despite the defense’s knowledge of the falsity of the testimony, a constitutional violation has never been found when the decision to leave the error uncorrected was the result of a deliberate and reasonable trial tactic. See Dupart, 541 F.2d at 1150 (remanding with directions to determine if defense counsel’s failure to impeach was a “deliberate trial tactic”); United States v. Iverson, 648 F.2d 737, 738 (D.C.Cir.1981) (per curiam) (petition for rehearing) (drawing distinction between defense counsel’s mere awareness of information and decision to forgo use of information); cf. Barham, 595 F.2d at 243 n. 17 (suggesting that no reversible error would exist if, among other things, the prosecutor erroneously but “reasonably assumed defense counsel knew the evidence was false and was consciously choosing to let it go unimpeached”). B. Transfer of Venue Claim Under Texas law, a criminal defendant who seeks to transfer venue must support his motion with the affidavits of two residents of the county where the action is instituted, averring that a fair and impartial trial is not possible in that county. Tex.Code Crim.Proc. art. 31.03. If the State files controverting affidavits, the trial judge must hold a hearing to resolve the factual dispute presented. Id. art. 31.04. If no controverting affidavits are filed, then the motion to transfer venue must be granted as a matter of law. Foster v. State, 779 S.W.2d 845, 855 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1505, 108 L.Ed.2d 639 (1990); Cockrum, 758 S.W.2d at 583 n. 3; McManus v. State, 591 S.W.2d 505, 516 (Tex.Crim.App.1979), partially overruled on other grounds by Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.1988); Wall v. State, 417 S.W.2d 59, 63 (Tex.Crim.App.1967). Before his trial, Cockrum moved to transfer venue and filed two supporting affidavits stating that Cockrum could not receive a fair trial in Bowie County because of the publicity surrounding the murder. The State filed two controverting affidavits, both of which asserted, in relevant part: I have read the affidavits in support of Defendant’s Motion for Change of Venue in this cause. The affiants of said affidavits are not credible as they are prejudiced to said Defendant and their means of knowledge are not sufficient to support and justify the statements contained therein. Record, at 34, 35. These controverting affidavits were executed by a local bailbondsman and the Sheriff of Bowie County. It was established that during the first day of jury selection, the prosecutor approached the bail-bondsman and the Sheriff, who were talking in the hallway of the courthouse, and asked if they thought Cockrum could get a fair trial. When they responded that Cockrum could, the prosecutor had them sign the controverting affidavits. After jury selection, a hearing was held on the motion to transfer. Statement of Facts, at 1105-44. Two representatives of local newspapers testified to the media coverage that Cockrum’s trial had received, and Cock-rum called the State’s compurgators as adverse witnesses. The bailbondsman admitted that, contrary to the sworn statement in his affidavit, he had not read the affidavits in support of Cockrum’s motion, and he also testified that he had no personal knowledge of the credibility of Cockrum’s affiants. The Sheriff, who was not asked whether he had read Cockrum’s supporting affidavits, also admitted that he had no personal knowledge of the credibility of one of Cockrum’s affiants. The Sheriff testified that he knew Cockrum’s other affiant, and while he thought that the affiant was generally a credible person, he disagreed with the affiant’s opinion that Cockrum could not receive a fair trial. On cross-examination, the bailbondsman testified that he signed the affidavit because he believed that anyone who thought that Cockrum could not get a fair trial must not be credible. The Sheriff likewise testified that although he did not personally know one of Coekrum’s affiants, he presumed that the person must be prejudiced in Cockrum’s favor, and also that someone living in Bowie County’s less populous section generally would not have an adequate basis for assessing the ability of Cockrum to receive a fair trial. Throughout their testimony, both compurgators maintained the position that Cock-rum could receive a fair trial in Bowie County- At the conclusion of the hearing, Cock-rum’s counsel moved to strike the State’s affidavits from the record because they were not based on the personal knowledge of the affiants, and argued that once the affidavits were struck, the motion to transfer had to be granted as a matter of law. The trial court refused to strike the affidavits, and found, based not only on the evidence introduced at the hearing but also on his observations during jury selection, that Cockrum could receive a fair trial. Consequently, the motion to transfer venue was denied. On appeal, the Court of Criminal Appeals rejected the contention that the insufficiency of the State’s affidavits entitled Cockrum to a change of venue as a matter of law, and also held that the trial court’s denial of the motion to transfer was not an abuse of discretion. Cockrum, 758 S.W.2d at 582-84. In a footnote, the Court of Criminal Appeals remarked, “This opinion does not address what consequences might result from the State’s compurgators falsely swearing that they knew [Cockrum’s] compurgators and knew that their affidavits were unreliable.” Id. at 583 n. 4. Picking up on this footnote, Cock-rum contends that the State’s affidavits were perjured, that they should have been struck from