Opinion
CIVIL ACTION NO. 1:00-CV-282-C
May 15, 2003
ORDER
On this day the Court considered the Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254 by Petitioner Thomas Howard Hennington, III ("Hennington"). Respondent Cockrell has filed an Answer with Brief in Support and copies of Hennington's relevant state court records, Hennington filed objections to the answer on April 9, 2001.
Respondent has lawful custody of Hennington pursuant to a judgment and sentence from the 91st Judicial District Court of Eastland County, Texas, in Cause No. 18,391, styled The State of Texas v. Thomas Howard Hennington, III, aka Jerry Hennington. In Cause No. 18,391, Hennington was indicted for the felony offense of murder and two prior convictions were alleged to enhance the punishment. Although he entered a plea of not guilty, a jury found Hennington guilty of the offense of murder on October 18, 1990, and assessed his punishment at ninety-nine (99) years' confinement in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") and a $10,000 fine. His conviction and sentence were affirmed on direct appeal in an unpublished opinion issued by the Eleventh Court of Appeals on January 23, 1992. Thomas Howard Hennington, III, a/k/a Jerry Hennington v. State of Texas, No. 11-90-264-CR (Tex.App.-Eastland 1992, pet. ref'd) (unpublished).
Hennington then filed an application for writ of habeas corpus in the state trial court on August 9, 1994 (No. 27,249-01), and the application was referred to the Texas Court of Criminal Appeals. By Order dated January 25, 1995, the application was remanded to the state trial court for an evidentiary hearing. The trial court conducted an evidentiary hearing on April 12, 1995, and on May 3, 1995, entered findings of fact and conclusions of law but did not make a recommendation to the Court of Criminal Appeals. In an unpublished opinion delivered on September 20, 1995, the Texas Court of Criminal Appeals granted Hennington's application for writ of habeas corpus, ordered that the conviction be vacated, and remanded him "to the Sheriff of Eastland County to answer the indictment."
Hennington again pleaded not guilty to the charge of murder. Following a second trial, a jury again found Hennington guilty of the offense of murder on July 28, 1997. On July 29, 1997, the jury found both enhancement paragraphs to be true and sentenced him to forty-eight (48) years' confinement in the TDCJ-ID. This second conviction and sentence were affirmed on direct appeal. Hennington v. State, No. 11-97-00240-CR (Tex.App.-Eastland, 1999) (unpublished). The Texas Court of Criminal Appeals refused his petition for discretionary review on August 18, 1999. Hennington then filed an application for writ of habeas corpus challenging his second conviction and sentence (No. 27,249-02) on July 13, 2000. The trial court allowed the application to be overruled by operation of law on August 16, 2000. Tex. Code Crim. Proc. Ann. Art. 11.07, § 2(c) (Vernon Supp. 2003). The Texas Court of Criminal Appeals denied the application without written order on October 25, 2000.
Hennington timely filed the instant petition on December 14, 2000.
GROUNDS FOR REVIEW
The Court understands Hennington to raise the following grounds for review in his petition:
1. The State of Texas knowingly and intentionally used the perjured testimony of witness Randy Wells in violation of his due process and equal protection rights under the Fifth and Fourteenth Amendments to the Constitution of the United States.
2. The State of Texas knowingly suppressed material evidence and lost or destroyed material exculpatory evidence in violation of his constitutional right to a fair trial.
3. The state trial court erroneously allowed evidence of extraneous offenses to come before the jury and failed to properly instruct the jury as to the limited purpose for which such evidence could be considered even though trial counsel requested an instruction.
4. The state trial court erroneously denied his motion for a directed verdict.
"A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief." Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)). See 28 U.S.C. § 2254 (b)(1)(A) (providing that a federal petition shall not be granted unless the petitioner has exhausted the state court remedies). A prisoner in custody of the State of Texas must present his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review or an application for a writ of habeas corpus to sufficiently exhaust his state court remedies. Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990). Hennington has exhausted his claims.
STANDARD OF REVIEW
Jurisdiction is vested in this Court by virtue of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 and 2254. See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (determining that AEDPA applies to noncapital habeas petitions filed after April 24, 1996, the effective date of the statute); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997) (holding that the relevant date for determining applicability of the AEDPA to habeas corpus petitions is the date the actual petition is filed).
Under § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief on any of his claims that were adjudicated on the merits in the state court proceedings unless the adjudication of the claims —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United states; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d). "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, ___, 122 S.Ct. 1843, 1849 (2002).
"In the context of federal habeas proceedings, a resolution (adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural" Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). "When faced with a silent or ambiguous state habeas decision, the federal court should `look through' to the last clear state decision on the matter," to determine whether the state court decision was procedural or substantive. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999). Although "adjudication on the merits" requires that a state court afford a petitioner a `full and fair' hearing on the merits, it does not require a live hearing. Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000).
In Texas writ jurisprudence, a "denial" of relief usually serves to dispose of the merits of claims. Miller v. Johnson, 200 F.3d at 281. See Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998) (holding that the "denial" of habeas relief by the Texas Court of Criminal Appeals serves, under Texas law, to dispose of the merits of the state habeas claim); Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (holding that "denial" signifies the Court of Criminal Appeals addressed and rejected the merits of a state habeas claim, while "dismissal" signifies the Court declined to consider the claim for reasons unrelated to the merits). But see Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999) (finding the "denial" of a state application by the Court of Criminal Appeals inconclusive for purposes of determining whether there was an adjudication on the merits).
A state court's determination of any factual issues must be presumed correct, and the habeas petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). See Jackson v. Anderson, 112 F.3d 823, 824 (5th Cir. 1997) (holding that the burden of rebutting the presumption was made more onerous by the AEDPA amendment to § 2254).
"Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact." Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002). "A state-court decision is `contrary to' . . . clearly established [Supreme Court] precedents if it `applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent,'" Early v. Packer, 537 U.S. ___, 123 S.Ct. 362, 365 (2002) (quoting Williams v. Taylor, 529 U.S. 329, 362 and 405-406) (2000)). This standard does not require that the state court cite to Supreme Court cases "— indeed, it does even require awareness of [the Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 123 S.Ct. at 365 (emphasis in original).
A state court decision is an "unreasonable application" of clearly established Supreme Court law "if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of a particular case." Bell v. Cone, 122 S.Ct. at 1850 (citing Williams v. Taylor, 529 U.S. at 407-408). "The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and [the Supreme Court] stressed in Williams that an unreasonable application is different from an incorrect one." Bell v. Cone, 122 S.Ct. at 1850 (citing Williams v. Taylor, 529 U.S. at 409-410). "Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court has] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 793 (2001) (citing Williams v. Taylor, 529 U.S. at 410-411). See Woodford v. Visciotti, 537 U.S. ___, 123 S.Ct. 357, 361 (2002) (holding that the "unreasonable application" clause "authorizes federal court intervention only when a state-court decision is objectively unreasonable").
Section 2254(d)(2) provides the standard of review for pure questions of fact, Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). "To establish that habeas relief is warranted on the § 2254(d)(2) ground that the state court's decision was based on an `unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding,' a petitioner must rebut by clear and convincing evidence the § 2254(e)(1) presumption that a state court's factual findings are correct." Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002). See Miller-El v. Cockrell, 2003 WL 431659, at *12 (citing 28 U.S.C. § 2254 (d)(2)) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, 28 U.S.C. § 2254 (e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding. . . .").
DISCUSSION
1. Did the State knowingly and intentionally use perjured testimony?
Hennington first alleges that the Assistant District Attorney for Eastland County called Randy Wells to testify despite knowing that he would commit perjury. He alleges that the prosecutor knew Wells lied when he stated that he had never testified Hennington's wife had shot the victim because Wells had testified at Hennington's first trial, and his wife's trial, that Bennington's wife had shot the victim. Hennington complains that the prosecutor failed to correct the lie. He argues that the exhibits attached to his petition clearly show that the prosecutor knew that the witness's testimony was false and he was denied a fair and impartial trial in violation of the due process and equal protection guarantees in the Fifth and Fourteenth Amendments to the United States Constitution.
Although Hennington argues that the fact that the State Bar found "gross misconduct" on the part of the prosecutor in connection with his prosecution of Hennington, this is irrelevant to the determination of whether Hennington can now show that the prosecutor violated his constitutional right to due process in the second trial. There is nothing in the record to show whether the finding was a result of the prosecutor's actions in the first trial or the second trial, end there is nothing in the record to demonstrate that the standards required to show attorney misconduct and harm from the use of perjured testimony are the same.
"The Supreme Court has held that due process is violated when the State knowingly offers false testimony to obtain a conviction and fails to correct such testimony." Tucker v. Johnson, 242 F.3d 617, 625-26 (5th Cir. 2001) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). "To establish a due process violation based on the government's use of false or misleading testimony, the [petitioner] must show (1) that the witness's testimony was actually false, (2) that the testimony was material, and (3) that the prosecutor knew the witness's testimony was false." Fuller v. Johnson, 114 F.3d 491, 496 (5th Cir. 1997). "[T]his requirement imposes a strict burden of proof on a federal habeas petitioner." Carter v. Johnson, 131 F.3d 452, 458 (5th Cir. 1997). A due process claim that the government "knowingly used perjured testimony at trial or allowed untrue testimony to go uncorrected presents a mixed question of law and fact." Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999).
"Evidence is `false' if; inter alia, it is `specific misleading evidence important to the prosecution's case in chief" Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997). To merely dispute testimony "is not to prove that it is `false.'" Fuller v. Johnson, 114 F.3d at 496. "Conflicting or inconsistent testimony is insufficient to establish perjury." Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001).
"Perjury is material and anew trial is required, if `there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998) (quoting Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993)) (emphasis added and citation omitted). See Kyles v. Whitley, 514 U.S. 419, 434 (1995) ("[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal. . . ."). In assessing materiality, a court must evaluate the false testimony "in the context of the entire record," and "[i]f there is no reasonable doubt about guilty whether or not the [false] evidence is considered, there is no justification for a new trial." Brady v. Maryland, 373 U.S. 83, 112-113 (1963). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976). The materiality standard "is identical to" the ineffective assistance of counsel "prejudice" standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Johnson v. Scott, 68 F.3d 106, 109-110 (5th Cir. 1995). "Materiality" is not "a sufficiency of the evidence test." Kyles v. Whitley, 514 U.S. at 434 (1995). "[T]he issue of materiality involves a mixed question of law and fact." Tucker v. Johnson, 242 F.3d at 626.
Assuming without deciding that the Assistant District Attorney knowingly failed to correct false testimony by Wells that he never previously testified Hennington's wife also shot the victim, such testimony is not material. See Tucker v. Johnson, 242 F.3d at 627 (holding that even assuming the testimony is actually false, a petitioner must still prove testimony is material and the prosecution knew the testimony was false). Wells always maintained throughout his written statements prior to trial and in his testimony in the prior trials that Hennington shot the victim. The testimony regarding the involvement of Hennington's wife was not relevant to whether or not Hennington shot the victim. See Creel v. Johnson, 162 F.3d at 391 (holding that where testimony regarding the location of the victim's body was not probative to whether the defendant committed the murder and there was no dispute at trial about the circumstances surrounding the discovery of the body, the testimony was not material); Carter v. Johnson, 131 F.3d at 459 (finding that when a prosecutor did not rely on fraudulent testimony to establish the essential elements of the offense, there was no "reasonable likelihood that the false testimony could have affected the judgment of the jury"). Moreover, both the Assistant District Attorney and a Texas Ranger testified at trial that Wells had previously testified that Hennington's wife had also shot the victim and that Wells had frequently lied to law enforcement during the investigation and trials surrounding this homicide. The jury had the opportunity to observe Wells testify and the record shows that extensive impeachment evidence regarding Wells's credibility was presented to the jury. Thus, the record refutes Hennington's argument that the prosecution's failure to immediately correct the false testimony created a false impression or left a false impression about Wells's credibility with the jury.
Hennington simply has not carried the burden of demonstrating that the allegedly false evidence was material and thus he has failed to show that the state court's denial of this claim was contrary to or an unreasonable application of clearly established Supreme Court law.
2. Did the State knowingly suppress material evidence and lose or destroy material exculpatory evidence in violation of Hennington's constitutional right to due process?
In this second ground for review, Hennington complains that the State suppressed a statement taken from Randy Wells on the night of February 5, 1990; the State suppressed a third written statement taken from Randy Wells; the State lost or destroyed a hammer that was in the victim's car; the State failed to maintain custody of the victim's car the State suppressed statements by witnesses that placed another suspect near the scene; and the State suppressed a statement by another suspect that he "had killed" the victim. He argues that this "continuous pattern of misconduct on the part of the State and the bad motive and evil intent is evidenced by the fact that during the second trial . . . the State completely changed their theory of the case." He concludes that because of the "intentional prosecutorial misconduct he has been denied the opportunity to fully develop a potential defense" and obtain a fair trial.
"Under Brady [v. Maryland, 373 U.S. 83 (1963)], a defendant's due process rights may be violated when exculpatory or impeachment evidence, which is both favorable to the defendant and material to guilt or punishment, is concealed by the government." Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000). "The essential elements of a Brady claim are: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defense; and (3) the evidence was material to either guilt or punishment." Id. at 814 n. 2. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Wilson v. Whitley, 28 F.3d 433, 437 (5th Cir. 1994) (quoting United States v. Bagley, 473 U.S. 667, 682 (1984)). "If the suppression of evidence results in constitutional error, it is because of the evidence, not the character of the prosecutor." United States v. Agurs, 427 U.S. at 110.
The Eleventh Court of Appeals addressed Hennington's complaint that material evidence was suppressed and determined that
[d]uring his second trial, [Hennington] introduced most, if not all, of the "exculpatory" evidence withheld in the first trial. This evidence consisted of witnesses' statements that placed another suspect around the scene of the crime. Other statements recounted a "confession" by that suspect. Furthermore. [Hennington] put on the testimony of two investigative experts. These witnesses testified about their conclusions drawn from crime scene photographs. They also testified that the police may have handled the investigation in such a way as to lose, destroy, or overlook key pieces of evidence. [Hennington] also presented testimony from former Eastland County Jail inmates who claimed that they were coerced into giving testimony favorable to the State or that they knew of coercion of other witnesses by the State.
The record clearly supports these findings and Hennington offers no evidence to refute these findings of fact. Even though Hennington properly contends that the evidence was suppressed prior to his first trial, he has failed to demonstrate that evidence was withheld prior to his second trial and therefore he has failed to demonstrate a Brady violation.
Hennington also complains that law enforcement officers lost evidence (the hammer), released evidence (the car), and/or destroyed evidence. Although "[T]he Due Process Clause . . . makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence," it "requires a different result when [courts] deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Arizona v. Youngblood, 488 U.S. 51, 57 (1988). Thus, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 58. Other than his conclusory allegations, however, Hennington has failed to demonstrate that the relatively inexperienced law enforcement from the very small department intentionally destroyed or lost evidence and there is no evidence that the Assistant District Attorney was present at the scene of the homicide. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) ("[M]ere conclusory allegations on a critical issue are insufficient to raise a constitutional claim.").
Accordingly, the Court ends that the state court's denial of relief was neither contrary to nor an unreasonable application of clearly established Supreme Court law.
3. Did the trial court erroneously admit evidence of extraneous offenses and then fail to instruct the jury that the evidence could be used for a limited purpose?
Hennington next complains that even though his trial counsel objected to the admission of his written statement because it contained evidence of inadmissible extraneous offenses, the trial court overruled the objection and admitted his entire statement into evidence without determining relevancy or balancing its probative value against its prejudicial effect. He also complains that the trial court failed to instruct the jury that the extraneous offenses could be considered for only a limited purpose.
On March 19, 1990, Hennington gave a three and one-half page statement to Texas Ranger Kea. The statement reads in part:
On January 31, 1990, Randy Wells and I left Ft. Worth going to Cross Plains Texas. We were going to this guy named Higginbotham that Randy had sold snakes to. We were going to rob him. We had a 25 caliber auto pistol in the pickup. We had bought the gun at a flea market in Stephenville a couple of weeks earlier. We stopped before we got to Rising Star and shot the gun once and it jammed. Then we went on to Cross Plains to the guys house. When we got there, there was a kid there with the guy. We looked around and talked to the guy. We left and rode around a little while and went back to the guys house and he was gone, only the kid was there. We left and went back to Cross Plains. Randy said there was another guy that had a bunch of money but he was not at home. So we went Ranger. We were going to go to my wife's house and see if my unemployment check had come in. . . . Randy had said on the way that he could get some money from [the victim].
The remainder of the statement described the events leading up to the murder and the activities of Hennington and Randy Wells until they were arrested.
The Eastland Court of Appeals made the following findings:
(1) Hennington objected to the admission of the planned robbery of Higgonbotham.
(2) Besides planning to rob Higginbotham or "another guy that had a bunch of money," the "statement details [Hennington's] activities with Wells [on the day of the murder] as a continual search for money."
(3) The planned robbery of Higginbotham [was] relevant to the offense charged when considered with the other statements contained in the statement.
(4) After the shooting, Hennington removed the victim's purse from the car.
Under Texas law, except for certain exceptions, extraneous offenses are inadmissible as proof of a defendant's guilt in the crime for which he is on trial. See Tex. R. Crim. Evid. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.") Such offenses may, however, "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . ." Id. Indeed, the Texas Court of Appeals determined that the extraneous offenses could properly be admitted as evidence of motive, plan, or intent under Texas Rule of Evidence 404(b) and the "trial court did not abuse its discretion in admitting [Hennington's] entire statement into evidence or in failing to redact portions of that statement concerning extraneous offenses."
The United States Court of Appeals for the Fifth Circuit has determined that
[i]t is well settled law in this Circuit that in reviewing state evidentiary rulings in habeas corpus petitions [w]e do not sit as a super state supreme court to review error under state law. An evidentiary error in a state trial justifies federal habeas relief only if the error is so extreme that it constitutes a denial of fundamental fairness under the Due Process Clause. The challenged evidence must be a crucial, critical, or highly significant factor in the context of the entire trial.Bridge v. Lynaugh, 838 F.2d 770, 772 (5th Cir. 1988) (internal quotations and citations omitted). See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Thus, "[e]videntiary rulings are only reviewable on habeas to the extent the `trial judge's error was so extreme it constituted denial of fundamental fairness.'" Green v. Johnson, 160 F.3d 1029, 1047 (5th Cir. 1998) (quoting Mattheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985)).
First Hennington's complaints that the evidence was irrelevant and more prejudicial than probative are not constitutional issues but evidentiary issues more properly considered by the state courts. Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir. 1997).
Second, because Hennington does not demonstrate and the record does not show that the extraneous offense evidence played a "crucial, critical, or highly significant" role in his conviction, Hennington has failed to demonstrate that the state court adjudication was contrary to or an unreasonable application of clearly established Supreme Court law. See Robinson v. Whitley, 2 F.3d 562, 566-567 (5th Cir. 1993) (holding that evidence of an extraneous offense having independent relevance as an integral part of the crime for which the defendant was tried was properly admitted); ( Bailey v. Procunier, 744 F.2d 1166, 1169 (5th Cir. 1984) (holding that petitioner's due process rights were not violated by admission of motive evidence because it was tangential to state's theory of the case),
Finally, with regard to Hennington's complaint that the trial court failed to instruct the jury that the extraneous offense evidence could be considered for only a limited purpose, the record shows that trial counsel did not request such an instruction when he objected to the evidence, when his objection was overruled, or when the evidence was presented to the jury. When examining a jury instruction on habeas review, the only question for a federal court is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process" Weeks v. Scott, 55 F.3d 1059, 1065 (5th Cir. 1995). After considering the record of Hennington's trial, this Court cannot say that the trial court's failure to give a limiting instruction "so infected the entire trial" that Hennington's conviction violates due process.
4. Did the trial court erroneously deny Hennington's motion for an instructed verdict?
Hennington finally argues that the trial court should have granted his motion for an instructed verdict because there was insufficient evidence to support his conviction for murder.
"Habeas relief under section 2254 on a claim of insufficient evidence is appropriate only `if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt'" West v. Johnson, 92 F.3d at 1393 (quoting Jackson v. Virginia, 443 U.S. at 317). "A determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1); Carter v. Johnson, 131 F.3d 452, 460 (5th Cir. 1997).
The Eleventh Court of Appeals addressed the sufficiency of the evidence and determined that
Wells testified that he was present when the murder occurred. When the prosecutor asked him "who pulled the trigger," Wells answered, "Jerry Hennington." Later, the State introduced [Hennington's] statement in which [he] claimed that Wells shot the victim but admitted that he took the victim's purse, turned off the victim's car, wiped fingerprints from the door handles, and fled from the scene. By placing [Hennington] at the scene and by detailing suspicious behavior by [him], [Hennington's] statement corroborates Wells' accomplice testimony.
The appellate court then held that under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979), "the evidence [was] legally sufficient" and the trial court did not err in denying the motion for an instructed verdict.
Petitioner has failed to present clear and convincing evidence to rebut the presumption that the state court findings of fact are correct. Although he argues that there were conflicts in the evidence which should have been resolved in his favor, "a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not appear affirmatively in the record that the trier of fact resolved any such conflicts in favor of the prosecution," and the federal habeas court "must defer to that resolution." Jackson v. Virginia, 443 U.S. at 326.
After reviewing the facts as determined by the state appellate court "in the light most favorable to the prosecution," this Court finds that "any rational trier of fact could have found the essential elements of the [felony offense of murder] beyond a reasonable doubt" See Donahue v. Cain, 231 F.3d 1000, 1004 (5th Cir. 2000) (internal quote and citations omitted) (holding that a federal habeas court must determine "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"). Accordingly, Hennington has failed to demonstrate that the state court's adjudication of this question was contrary to or an unreasonable application of clearly established Supreme Court law.
CONCLUSION
For the reasons stated above, the Court finds that Hennington's Petition for Writ of Habeas Corpus should be denied and dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are hereby denied.