Opinion
No. 3:97-CV-2728-M
October 17, 2001
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
A state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.
II. PARTIES
Petitioner, Bruce Charles Jacobs ("Jacobs"), is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent, Janie Cockrell, is the Director of TDCJ-ID
III. PROCEDURAL HISTORY
A jury convicted Jacobs of capital murder, and his punishment was assessed at death by lethal injection. State v. Jacobs, Cause No. F86-99780-HJL (Criminal District Court No. 3 of Dallas County, Texas). The case was appealed to the Texas Court of Criminal Appeals, and that Court affirmed the conviction and death sentence in an unpublished opinion. Jacobs v. State, No. 69,857 (Tex.Crim.App. March 23, 1994) (unpublished opinion), cert. denied, 115 S.Ct. 355 (1994). Jacobs subsequently filed a state application for writ of habeas corpus on October 7, 1996. The Court of Criminal Appeals denied relief in an unpublished written order adopting the trial court's findings of fact and conclusions of law. Ex parte Jacobs, No. 34,253-01 (Tex.Crim.App. October 22, 1997). Jacobs then filed two supplemental state applications for writ of habeas corpus on February 5, 1997, and June 3, 1997, which were dismissed by the Court of Criminal Appeals as abuses of the writ on October 22, 1997. Ex parte Jacobs, No. 34,253-02 (Tex.Crim.App. October 22, 1997); Ex parte Jacobs, No. 34,253-03 (Tex.Crim.App. October 22, 1997).
Jacobs filed his initial federal petition for writ of habeas corpus on March 18, 1998 and an amended petition on May 15, 1998. Respondent filed an answer and motion for summary judgment on August 24, 1998, and furnished the state court records. Jacobs filed a reply brief to Respondent's answer on December 3, 1998.
IV. RULE 5 STATEMENT
Respondent states that Jacobs has exhausted all of his state court remedies, except with regard to grounds for relief twenty-five, twenty-six, and thirty-nine, which Respondent claims Jacobs did not address either on direct appeal or in his state writ of habeas corpus. Nonetheless, Respondent asserts that these claims should be denied on their merits pursuant to 28 U.S.C. § 2254 (b)(2).
An application for a writ of habeas corpus may be denied on its merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.28 U.S.C. § 2254(b)(2) (West 2001).
V. ISSUES
In forty-two grounds for relief, Jacobs raises the following claims:
A. Jacobs' federal constitutional rights were violated during the state habeas process because:
1. Article 11.071 of the Texas Code of Criminal Procedure is unconstitutional as applied because it prohibited Texas state courts from considering certain claims raised by Jacobs on their merits. (Jacobs' grounds for relief 1-8).
2. Jacobs' state court writ application was inadequately reviewed in violation of his federal constitutional fights under the Eighth and Fourteenth Amendments. (Jacobs' grounds for relief 9-11).
3. The state habeas court's failure to appoint a "social science expert" for purposes of the state habeas proceedings resulted in violations of Jacobs' federal constitutional rights under the Sixth, Eighth, and Fourteenth Amendments. (Jacobs' grounds for relief 12-15).
4. The inadequate funding of Jacobs' counsel appointed to represent him in his state habeas proceedings under Article 11.071 of the Code of Criminal Procedure violated Jacobs' federal constitutional rights to substantive and procedural due process and equal protection of the law under the Fourteenth Amendment, effective assistance of counsel under the Sixth Amendment, and the protection against cruel and unusual punishment under the Eighth Amendment (Jacobs' grounds for relief 16-17).
5. The designation by the Texas Legislature of the Court of Criminal Appeals as the entity which determines compensation of attorneys and experts under Article 11.071 of the Texas Code of Criminal Procedure created a conflict of interest which violates Jacobs' federal constitutional rights to substantive and procedural due process and equal protection of the law under the Fourteenth Amendment, effective assistance of counsel under the Sixth Amendment, and the protection against cruel and unusual punishment under the Eighth Amendment. (Jacobs' ground for relief 18).
6. Jacobs' federal constitutional rights under the Eighth and Fourteenth Amendments were violated by the State's refusal to provide its entire case file to state writ counsel and because Article 11.071 of the Texas Code of Criminal Procedure does not provide a mechanism for the disclosure of the State's investigation and prosecution files. (Jacobs' grounds for relief 29-33).
B. The admission into evidence of illegally seized evidence obtained following an illegal arrest violated Jacobs' federal constitutional rights under the Fourth and Fourteenth Amendments. (Jacobs' grounds for relief 27-28).
C. Evidence admitted at trial regarding the identification of Jacobs by the victim's father was impermissibly tainted by the pretrial identification procedures and thus violated Jacobs' federal constitutional rights to due process under the Fourteenth Amendment. (Jacobs' ground for relief 40).
D. The trial court's refusal to admit Jacobs' evidence of the unreliability of eyewitness identification violated Jacobs' federal constitutional right to due process and equal protection of the law under the Fourteenth Amendment. (Jacobs' ground for relief 42).
E. Jacobs was denied his federal constitutional right to effective assistance of counsel at trial under the Sixth Amendment when counsel failed to adequately investigate and present available mitigating evidence at the punishment phase and when counsel agreed with the prosecution that all prospective jurors who held strong views for or against the death penalty should be excused from service. (Jacobs' grounds for relief 34-38).
F. The punishment jury charge failed to provide an adequate vehicle for the consideration of Jacobs' mitigating evidence and failed to define certain terms, thereby violating Jacobs' constitutional rights under the Fifth, Eighth and Fourteenth Amendments. (Jacobs' grounds for relief 22-24).
G. The trial court's failure to inform the jury at punishment that Jacobs would not be eligible for parole for at least twenty years if sentenced to life in prison violated his federal constitutional rights under the Eighth and Fourteenth Amendments. (Jacobs' ground for relief 25).
H. The lack of a life-without-parole punishment option in the Texas capital sentencing scheme violates Jacobs' federal constitutional rights under the Eighth Amendment. (Jacobs' ground for relief 26).
I. The State engaged in prosecutorial misconduct at trial in violation of Jacobs' federal constitutional rights to substantive and procedural due process and equal protection of the law under the Fourteenth Amendment, confrontation of witnesses under the Sixth Amendment, and the protection against cruel and unusual punishment under the Eighth Amendment. (Jacobs' ground for relief 39).
J. The evidence at trial was insufficient to show Jacobs committed murder while in the course of a burglary and consequendy, Jacobs' execution would violate his federal constitutional rights under the Eighth and Fourteenth Amendments. (Jacobs' ground for relief 41).
K. Jacobs is currently not competent to be executed and thus his execution would violate the cruel and unusual punishment clause under the Eighth Amendment; moreover, the procedure used by the Texas state courts to determine Jacobs' competency to be executed violated Jacobs' federal constitutional rights. (Jacobs' grounds for relief 19-21).
VI. STANDARD OF REVIEW
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 a State court proceeding.28 U.S.C. § 2254(d) (2000).
Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), petition for cert. filed, (U.S. June 29, 2001) (No. 00-10896). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-3 (2000). With respect to the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. Under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal precedent from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407 .
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495 (5th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1420, 149 L.Ed.2d 360 (2001). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
This amendment applies to all federal habeas corpus petitions which, as with the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
VII. FACTUAL BACKGROUND
The Texas Court of Criminal Appeals recited the following factual background in its opinion on direct appeal:
[T]he evidence shows the victim, sixteen-year-old Conrad Harris, was visiting his father, Hugh Harris, and his step-mother, Holly Kuper, at theft University Park home, located adjacent to Southern Methodist University (SMU) in Dallas. On July 22, 1986, at approximately 6:45 a.m., Harris and Kuper were awakened by Conrad's screams coming from his bedroom. Harris ran to wake Conrad because he thought Conrad was having a nightmare. When Harris opened Conrad's bedroom door, he saw Conrad on the floor bleeding and a man holding a butcher knife about three feet away from Harris. Conrad had been stabbed. The man with the butcher knife said something like, "that will take care of that." The man then left the house. Conrad died from the 24 to 26 stab and cut wounds he sustained in the attack. A butcher knife was later found outside the house; however, there were no identifiable prints on it. Harris told the police the man he saw in Conrad's room had a beard and muscular arms and shoulders. The man also wore a tank top and a panama hat. At trial, Harris identified appellant as the man with the butcher knife he saw in Conrad's bedroom.
Holly Kuper testified she got up after hearing Conrad's screams and noticed the screen on back screen door was tipped. Kuper noticed the contents of her purse had been dumped out and a one-hundred-dollar bill was missing. In the kitchen, Kuper found a dinner knife on the drain board that was not there the night before. The police lifted several fingerprints from the dinner knife.
The description of the assailant Harris gave the police matched that of a man who appeared at the Harris home the day before the murder. Kuper testified that at approximately 8:00 a.m., on July 21, 1986, she was awakened by a knock at her front door. She answered the door and a man asked for directions to a nearby street. Later, when Kuper opened the back door, she saw the same man who then tried to force his way into the house. Kuper managed to close the door and call the police. Kuper described the man as being short, having a beard and strong arms, wearing blue jeans and a t-shirt, and carrying a gym bag. The day of the murder, Kuper and Harris independently made composite drawings of the man they saw.
Alexander Wensowitch testified that on July 22, 1986, between 6:40 and 6:45 a.m., he was parked near the SMU campus reading a newspaper when a man came out of a nearby alley. The man wore a panama hat and had a beard and well-developed muscles. Soon after Wensowitch saw the man, he heard sirens and the man "broke into a run" toward the SMU student center. Later that day, Wensowitch heard a radio broadcast about a murder in the SMU area with a description of the suspect; he called the police and reported what he saw. At trial, Wensowitch testified appellant looked like the man he saw coming out of the alley.
Kay Harp testified that on July 22, 1986, at approximately 7:00 a.m., she saw a man wearing a panama hat get into a taxi cab at a 7-11 store located near the SMU student center. After seeing a composite of the suspect in a local newspaper, and realizing it matched the man she saw, she called the police, told them what she saw and also how to contact the cab driver.
The cab driver, Zerai Haile, testified that on the morning of the murder, a man with a beard and wearing a hat got into his cab at a 7-11 store. Haile took the man to Tenth and Tyler streets in South Oak Cliff. Haile was shown a composite drawing of the suspect, and he said it looked like the man who entered his cab.
On July 24th, Haile accompanied University Park Investigator McDonnell and several other investigators along the route he traveled with the suspect. Haile saw appellant walking down the street in almost the same location he left him on the morning of the murder. Haile said appellant looked like the man he picked up at the 7-11, except the man did not have the beard. The police noticed appellant matched the various witnesses' descriptions of the assailant, and he also was wearing a panama hat; however, the officers did not know appellant's name or who he was. Appellant entered a house. The police began taking steps to put the house under surveillance and to obtain a search warrant. But, appellant left the house, after staying there only a short while, and walked to a nearby 7-11. Appellant was still wearing the panama hat.
McDonnell and the other officers approached appellant inside the store with drawn weapons and ordered him to lie down on the floor. McDonnell testified the police patted appellant down for weapons, handcuffed him, arrested him and then took him outside. Another officer checked appellant's left middle finger to see if it had a particular print pattern that was lifted from the dinner knife at the murder scene. Appellant's print matched those found on the dinner knife. The police then searched appellant and found a vinyl bag containing six one-hundred-dollar bills. The police also seized his panama hat.
Appellant then consented to a search of the house he was seen entering earlier. The police seized a gym bag, a pair of jeans, a turquoise shirt and some beard hair fibers. The police later showed Kuper and Harris an identification card with appellant's picture on it; Kuper identified appellant as the person she saw at her house the day before the murder, and Harris said it "looked like the guy" he saw in Conrad's bedroom.Jacobs v. State, slip op. at 1-4 (footnotes omitted).
VIII. EXAMINATION OF THE ISSUES
A. State Writ Process
In his first through eighteenth and twenty-ninth through thirty-third wounds for relief, and this Court's first ground, Jacobs both asserts that his federal constitutional rights were violated during the state writ process in numerous ways and questions the constitutionality of the Texas procedural statute governing capital state habeas applications both on its face and as it applied to his case. Furthermore, within the body of Jacobs' argument for his ninth through eleventh grounds for relief, grounds in which Jacobs asserts that his constitutional rights were violated because his state writ application was inadequately reviewed by the state habeas court, Jacobs also questions the adequacy of the factual findings of the state habeas court, stating that "[a]ll indication is that Mr. Jacobs' claims were not `adjudicated on then merits'" and further stating that Jacobs' claims should be reviewed de novo by this Court. Accordingly, even though these concerns with the factual findings made by the state court are addressed by Jacobs' within the body of claims alleging federal constitutional violations, this Court will address these concerns as separate claims that 28 U.S.C. § 2254(d) is inapplicable in Jacobs' case because his claims were not, in fact, adjudicated on the merits by the state courts and that the factual findings made by the state courts should not be presumed to be correct and instead should be reviewed de novo by this Court.
Alleged Federal Constitutional Violations
In his first through eighth grounds for relief, Jacobs contends that Article 11.071 of the Texas Code of Criminal Procedure, the statute that governs the filing and disposition of state writ applications, is unconstitutional under the federal constitution because of the deadline it imposes for filing initial state writ applications and the limits it places on the filing of subsequent applications. In his ninth through eleventh grounds, Jacobs asserts that the state writ process in his case was constitutionally inadequate because his writ application was inadequately reviewed when the trial court signed and adopted the State's proposed findings without notice to Jacobs, Jacobs was not permitted to challenge the State's proposed findings, and Jacobs was not given an evidentiary hearing. In his twelfth through fifteenth grounds for relief, Jacobs argues that Article 11.071 is unconstitutional because it does not provide for funds to hire experts, and it lacks standards by which it may determine if an expert should be appointed, thus resulting in a failure to appoint social science experts in his case. In his sixteenth through eighteenth grounds for relief, Jacobs asserts that Article 11.071 is unconstitutional because it does not provide adequate funding for the representation of indigent petitioners. And finally, in his twenty-ninth through thirty-third grounds for relief, Jacobs argues that his constitutional rights were violated because he was not allowed access to the State's investigation and prosecution files during the state writ process and that Article 11.071 is unconstitutional for failing to provide a mechanism by which access to these files could be obtained. See TEX. CODE. CRIM. PROC. ANN. art. 11.071 (Vernon 1995).
Contrary to Jacobs' arguments in these wounds for relief, the United States Supreme Court has held that state collateral proceedings are not constitutionally required, and states have no federal constitutional obligation to provide collateral relief to state criminal defendants. Murray v. Giarrantano, 492 U.S. 1, 10 (1989); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Therefore, because the federal constitution does not require that a state provide a criminal defendant with any state post-conviction collateral proceeding, a claim that the procedure that is provided is constitutionally inadequate cannot serve as the basis for federal habeas relief.
The Fifth Circuit has held that a petitioner is not entitled to federal habeas relief on a claim that the state writ process was inadequate because this is an attack on a proceeding collateral to his detention and not the detention itself. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 120 S.Ct. 22 (1999); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995). And the Fifth Circuit has consistently held that a federal habeas petitioner is not entitled to relief based upon various claims that the state habeas process was constitutionally inadequate. See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir.) (holding that claim that state habeas process constitutionally inadequate because Rudd was not allowed access to the state's case file is not a basis for federal habeas relief), petition for cert. filed, (U.S. August 27, 2001) (No. 01-6049); Trevino, 168 F.3d at 180 (holding that Trevino not entitled to federal habeas relief where the state habeas court adopted the district attorney's proposed findings three hours after they were filed); McGowin v. Scott, 67 F.3d 100, 102 (5th Cir. 1995) (noting that the fact that a petitioner was not provided a transcript of state court proceedings is an infirmity in state habeas proceedings that does not constitute a ground for federal habeas relief); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992) (holding that the quashing of Duff-Smith's subpoenas by the state habeas court is not a basis for federal habeas relief); McCoy v. Lynaugh, 874 F.2d 954, 966 (5th Cir. 1989) (ruling that the failure of a state habeas court to consider affidavits is not a ground for federal habeas relief because there is no constitutional right to attack a state conviction collaterally); Miller v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987) (ruling that there is no federal habeas relief available based on a claim that petitioner was denied an evidentiary hearing in state court). In all such cases, the Fifth Circuit has stated that a claim of an infirmity in the state habeas proceeding does not constitute a wound for relief in federal court. Moreover, the Supreme Court has also stated that the federal constitution does not require states to appoint counsel in state post-conviction proceedings, even in capital cases. Murray, 492 U.S. at 10 . And, the Supreme Court went on to state, because state post-conviction counsel is not constitutionally required, ineffective assistance of state habeas counsel cannot form the basis for habeas relief. Coleman v. Thompson, 501 U.S. 722, 752 (1991). Therefore, Jacobs' claims that his due process rights, his equal protections rights, his right to be free from cruel and unusual punishment, and his right to effective assistance of counsel were violated by the state habeas process do not provide a basis for federal habeas relief. Instead, Jacobs must establish that his conviction is itself constitutionally infirm, and none of these grounds for relief attack the underlying conviction or sentence. See Trevino, 168 F.3d at 180; Duff-Smith, 973 F.2d. at 1182 . Accordingly, Jacobs' argument in his first through eighteenth and twenty-ninth though thirty-third grounds for relief that his federal constitutional rights were violated by the state habeas process in numerous respects is without merit.
While Jacobs has made claims that, outside of the context of the state habeas process, would be considered as distinct federal constitutional claims, all of the claims made by Jacobs in his first through eighteenth and twenty-ninth through thirty-third grounds for relief assert that the state habeas process was constitutionally inadequate, and this Court will only address these claims within the context of the state habeas process.
Adjudication on the Merits
Jacobs also argues, albeit in the body of his argument with respect to grounds for relief nine, ten, and eleven, that, because the state habeas court for the most part conducted only a paper hearing and then adopted the State's proposed findings and conclusions, there was no adjudication on the merits. Jacobs further contends that, because of the particular facts of his state habeas procedure, the state habeas court's factual findings are not entitled to a presumption of correctness. (Amended Petition at 71, 72, n. 5).
The Fifth Circuit has held that an "adjudication on the merits" as that phrased is used in § 2254(d) refers to the state court's disposition of the case on substantive rather than procedural grounds. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849 (2000); Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). To determine whether claims were adjudicated on the merits by the state courts, federal courts should consider the following factors: 1) what state courts have done in similar cases; 2) whether the case's history suggests that the state court recognized any ground for not resolving claim on the merits; and 3) whether the state court's opinion suggests reliance on procedural grounds rather than substantive grounds. Miller, 200 F.3d at 281 . Where there has been no clear adjudication on the merits, review by the federal court must be de novo. Miller , 200 F.3d at 281, n. 4, citing Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).
On direct appeal, the Court of Criminal Appeals decided only one point of error on procedural grounds, and this ground was not raised by Jacobs in his federal petition. See Jacobs, slip op. at 16. Likewise, in its findings and conclusions regarding Jacobs' initial state writ application, the state habeas court decided that Jacobs was procedurally barred from raising claims based on the Texas Constitution and claims that had already been raised and rejected on direct appeal. (State Habeas Findings #36, 40, 69-71). But none of the claims presented by Jacobs in his federal petition that were either presented on direct appeal or in his initial state writ application were decided on merely procedural grounds by the state courts. Accordingly, all federal claims raised by Jacobs on direct appeal or in his initial state writ application were adjudicated on the merits by the state courts, and his argument that there was no adjudication on the merits is unfounded.
Jacobs, however, has raised several claims that Respondent contends were not raised on the state level and therefore are unexhausted. This Court will address any unexhausted claims under § 2254(b)(2), the section of the AEDPA that addresses unexhausted claims, not § 2254(d). Furthermore, Jacobs has raised several ineffective assistance of counsel claims that he presented in his first supplemental state application that were dismissed as an abuse of the writ by the Court of Criminal Appeals. Because these claims were dismissed on procedural grounds, they have not been adjudicated on the merits. This Court will address those claims in the body of these findings and again will not address the claims under § 2254(d), a section which is applicable only with respect to claims that were adjudicated on the merits. Accordingly, contrary to Jacobs' claim, all of his grounds for relief have either been adjudicated on the merits by the state courts, and therefore are properly addressed by this Court pursuant to § 2254(d), or will be addressed by this Court by means other than that provision of the AEDPA.
Presumption of Correctness of Factual Findings
Jacobs further states within the body of his argument for his ninth through eleventh grounds that the state habeas court's findings are not entitled to a presumption of correctness under § 2254(e)(1) of the AEDPA because of the procedures used by the state habeas court. (Amended Petition at 72, n. 5). The record and Jacobs' own account indicate that, after the initial state application was filed on October 7, 1996, on February 5, 1997 a hearing was held regarding Jacobs' competency to be executed before a state habeas judge who was not the judge who presided over the trial. Prior to this hearing, three mental health experts had examined Jacobs and submitted reports to the state habeas court, and Jacobs himself testified at this hearing. On that same day, Jacobs filed a supplemental application alleging three additional grounds for relief, a motion to compel the State to release its case file to state habeas counsel, and a motion for an evidentiary hearing.The State filed its response to the initial application and the supplemental application on February 14, 1997, along with proposed findings regarding the initial application and a proposed order designating the supplemental application as a subsequent writ that is not allowed under state law. Jacobs' state habeas counsel received a copy of the responses to both applications, but did not receive copies of the proposed findings and order. On February 22, 1997, the state habeas judge adopted and signed the State's proposed findings regarding Jacobs' first state habeas application, but did not address the motions filed by Jacobs. Acting under a belief that the initial application had not been sent to the state habeas judge's chambers, state habeas counsel forwarded a copy of the application to the judge on February 27, 1997. The district clerk's office forwarded the entire file to the Court of Criminal Appeals on May 29, 1997.
On June 3, 1997, unaware that the state habeas court had already adopted the State's proposed findings, state habeas counsel filed a second supplemental application. After discovering that findings had already been adopted by the court, state habeas counsel filed a motion to quash the findings with the Court of Criminal Appeals on June 17, 1997. The State filed a response to Jacobs' second supplemental application on July 1, 1997, again alleging that this supplemental application was a subsequent application not allowed under state law. On July 8, 1997, the state habeas judge signed an order ruling that this second supplement was a subsequent writ. On October 22, 1997, the Court of Criminal Appeals issued three orders, one of which denied relief on Jacobs' initial application and the other two dismissing the supplemental applications as abuses of the writ. (Petition at 9-15; Exhibits, vol. 3:ex. A, B, C, D, O, P).
Section 2254(e)(1) states that:
In a proceeding instituted by an application for a writ of habeas corpus pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C.A. § 2254(e)(1) (West 2000). Jacobs does not identify which factual findings he believes should not be afforded a presumption of correctness, but instead makes a general statement in a footnote in his petition that he has presented clear and convincing evidence that the findings should not be presumed to be correct. (Amended Petition at 72, n. 5). One basis for his challenge, however, is that the state habeas judge signed the State's proposed findings without alteration and that he, apparently inadvertently, did not receive a copy of the State's proposed findings and therefore was not given an opportunity to file objections to the findings. (Amended Petition at 63-4). Jacobs also alleges that Dallas County has a practice of inappropriate ex parte communications between the prosecutors and the state habeas judges, and has included as support for this claim affidavits from various people alleging that in other cases the State intentionally submitted proposed findings to state habeas judges ex parte. (Petition Exhibits, vol 3:ex. F, G). In addition, Jacobs asserts his belief that the state habeas judge did not read the initial state petition before signing the State's proposed findings. Finally, Jacobs contends that the factual findings should not be afforded a presumption of correctness because the state habeas court did not conduct an evidentiary hearing. (Amended Petition at 72).
Jacobs does not, however, allege that the prosecutor who represented the State in the instant case intentionally withheld proposed findings from state habeas counsel, nor does he allege that the prosecutor had any inappropriate a pane communication with the state habeas judge in this case. (Petition at 63).
With regard to Jacobs' claim that the factual findings are not entitled to a presumption of correctness because the state habeas court did not conduct an evidentiary hearing, the Court initially notes that this is not a correct statement with respect to the issue of competency. As Jacobs himself states, the state habeas court did conduct an evidentiary hearing on the issue of Jacobs' competence to be executed after three different mental health experts had examined Jacobs in order to determine his competence. While these experts did not testify at this hearing, but instead submitted their reports to the judge and the parties stipulated to what testimony they would give if called, Jacobs concedes that all three agreed that Jacobs is competent to be executed under the current standard used by both federal and state courts. (Amended Petition at 10-11). Furthermore, the only other claim that Jacobs made in his initial state application that was not a record-based claim was Jacobs' claim that the jury was unable to adequately understand the jury instructions at the punishment phase of the trial. As support for this claim, Jacobs submitted five affidavits from five experts to the state habeas court. These affidavits were addressed by the state habeas court in the findings and conclusions it adopted. The opinions of these experts were not disputed in the findings. Rather, the state habeas court determined that relief was not warranted despite the opinions of these experts (SHF #49-64).
Jacobs did raise claims in his first supplemental application for writ of habeas corpus that were not record-based claims. These claims, however, were never addressed on the merits by the state habeas court because the entire application was forwarded to the Court of Criminal Appeals as a subsequent writ of habeas corpus that was not allowed under state law. (Petition Exhibits, vol. 3:ex. B). Accordingly, the state habeas court made no factual findings with respect to those claims.
With regard to Jacobs' other complaints about the state habeas process, those being that the state habeas judge signed the State's proposed findings without alteration, that Jacobs did not receive a copy of the State's proposed findings and was not given an opportunity to file objections to the findings, and his claim that there has in the past been a practice of inappropriate ex parte communications between the State and the state habeas court, Jacobs has indeed pointed to some irregularities in the state habeas court procedure, but he has not presented any clear and convincing evidence that his claims were not duly considered by the state habeas court. To the contrary, included within the court's findings of fact and conclusions of law is a statement that the court had examined all of the exhibits submitted by Jacobs and the State both with their pleadings and at the evidentiary hearing and had considered all the exhibits and the entire record of the trial in reaching the findings of facts and conclusions of law. (SHF #32). And while Jacobs has asserted that the state habeas judge did not read his initial state petition before signing the State's proposed findings and that there have been inappropriate a parte communications between state habeas judges and prosecutors in other Dallas County cases, Jacobs has neither presented clear and convincing evidence that the state habeas judge never read or considered his claims nor clear and convincing evidence that any inappropriate ex parte communications between the State and the state habeas judge occurred in the instant case.
While Jacobs cites Cockrum v. Johnson, 934 F. Supp. 1417, 1427 (E.D. Tex. 1996), overruled by Cockrum v. Johnson, 119 F.3d 297 (5th Cir. 1997), as support for his various attacks against the state habeas process, in that case the federal district court determined that it would not presume the factual findings to be correct because the habeas judge contacted the prosecutor to discuss the merits of the case, solicited proposed findings from her, and subsequently asked the prosecutor to make certain revisions to the document. Jacobs does not allege that any of this activity occurred in the case at hand.
The Fifth Circuit has stated that each case must be examined in order to determine the appropriateness of a paper hearing. See May v. Collins, 995 F.2d 299, 312 (5th Cir. 1992), cert. denied, 504 U.S. 901 (1992). And, although the Fifth Circuit has noted that the presumption of correctness of a state court's findings of fact is particularly strong when, unlike in the instant case, the same judge presided over the trial, Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000), Jacobs has not presented any evidence that the state habeas court in the case at hand was required to make any credibility determinations, especially relying on affidavits alone. Moreover, Jacobs does not direct this Court to any particular factual finding made by the state habeas court that he disputes. Indeed, the majority of factual findings made by the state habeas court are supported by the actual record of the trial and, as noted earlier, Jacobs does not dispute the findings of fact made on the issue of Jacobs' competency to be executed. Therefore, while in other circumstances, where the state habeas judge who was not the trial judge would be required to make credibility judgments, a more in-depth evidentiary hearing might be required in order for particular findings of fact to be entitled to a presumption of correctness, in the case at hand it cannot be said that the factual findings made by the state habeas court are not entitled to a presumption of correctness because the evidentiary hearing held in this case was a limited one.
Accordingly, given that the state habeas court conducted a limited evidentiary hearing on one disputed issue, that the court made no credibility determinations with respect to other grounds for relief on which a live hearing was not conducted, that Jacobs has failed to present evidence that his claims were not duly considered by the state habeas court, and that Jacobs has not pointed this Court to any specific factual finding made by the state habeas court that he disputes, it cannot be said that Jacobs has presented clear and convincing evidence to rebut the statutory presumption of correctness afforded state factual findings. As Jacobs' federal constitutional attacks on the state habeas procedure do not provide a basis for federal habeas relief, and Jacobs' has failed to establish either that his claims were not adjudicated on the merits in state court or that the state court's factual findings are nor entitled to a presumption of correctness, Jacobs' first through eighteenth and twenty-ninth through thirty-third grounds for relief are without merit, and it is recommended that they be denied.
B. Illegally Seized Evidence Claim
In his twenty-seventh and twenty-eighth grounds for relief, and this Court's second ground, Jacobs complains about the admission into evidence of items seized from his home after he was arrested. In his twenty-seventh ground for relief, Jacobs asserts that this evidence should have been suppressed because it was a product of a search conducted after a warrantless arrest which violated Jacobs' Fourth Amendment rights. In his twenty-eighth ground for relief, Jacobs contends that Article 14.04 of the Texas Code of Criminal Procedure, a Texas statute outlining the state law regarding when a police officer may make a warrantless arrest, is illegal as applied to him because it does not require that an officer have probable cause and it does not require exigent circumstances.
On direct appeal, the Court of Criminal Appeals addressed Jacobs' twenty-seventh ground for relief and ruled that his Fourth Amendment rights were not violated during his arrest because the police officers who arrested Jacobs had probable cause to arrest him. The Court of Criminal Appeals further ruled that the officers had met the exception set forth in Article 14.04 of the Texas Code of Criminal Procedure. See Jacobs, slip op. at 5. The state habeas court did not address Jacobs' twenty-seventh ground on its merits, but did address his twenty-eighth ground and concluded that Jacobs had not proved that Article 14.04 violates the federal constitution. (SHF #67, 68).
With regard to his twenty-seventh ground for relief, Jacobs concedes that in Stone v. Powell, 428 U.S. 465, 482 (1976), the Supreme Court held that a claim that evidence was admitted into evidence at trial pursuant to an unconstitutional search and seizure cannot be a basis for federal habeas relief if the state had provided the opportunity for a full and fair litigation of the Fourth Amendment claim. (Amended Petition at 175). Nevertheless, without further elaboration, Jacobs asks this Court to reevaluate the rule set forth by the Supreme Court in Stone v. Powell because it was decided before the AEDPA was signed into law.
But, although the Supreme Court has not addressed the viability of Stone v. Powell in light of the passage of the AEDPA, in Williams v. Taylor, 529 U.S. 362, 375 (2000), a case handed down by the Supreme Court last year, the Court did remark that Stone v. Powell is well-settled law. Moreover, the Fifth Circuit has cited Stone v. Powell with approval several times since the enactment of the AEDPA in 1996. See Beazley v. Johnson, 242 F.3d 248, 269 (5th Cir.), petition for cert. filed, (U.S. June 13, 2001) (No. 00-10618); Jones v. Johnson, 171 F.3d 270, 278, n. 30 (5th Cir.), cert. denied, 527 U.S. 1059 (1999); Lucas v. Johnson, 132 F.3d 1069, 1083 (5th Cir. 1998), cert. dism'd, 524 U.S. 965 (1998). Accordingly, as there is no basis in either Supreme Court or Fifth Circuit case law for Jacobs' contention that the enactment of the AEDPA has abrogated the well-settled law that Fourth Amendment search and seizure claims cannot provide a basis for habeas corpus relief, Jacobs' twenty-seventh ground for relief cannot provide a basis for relief if his Fourth Amendment claim was fully and fairly litigated by the state courts.
The Fifth Circuit has stated that a Fourth Amendment claim has been fully and fairly litigated in state court where the material facts were adequately developed in state court and there is no undeveloped evidence sufficient to call into question the reliability of the state Court's determination. Andrews v. Collins, 21 F.3d 612, 631 (5th Cir. 1994); Streetman v. Lynaugh, 812 F.2d 950, 958 (5th Cir. 1987). In the instant case, there was a pre-trial hearing on the issue of whether or not Jacobs' arrest was lawful in which witnesses were called and documentary evidence was submitted. (Statement of Facts, vol. III). The Court of Criminal Appeals then addressed this issue at length on appeal. Jacobs has alleged no undeveloped facts relating to his claim that his Fourth Amendment rights were violated because of an unlawful arrest. Therefore, this issue was fully and fairly litigated at the state level, and Jacobs' twenty-seventh ground for relief is not a basis for federal habeas relief.
In his twenty-eighth ground for relief, Jacobs contends that Article 14.04 of the Texas Code of Criminal Procedure violates the Fourth Amendment, as well as the Fourteenth Amendment which makes the Fourth Amendment applicable to the states. Article 14.04 of the Texas Code of Criminal Procedure states that:
Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.TEX. CODE CRIM. PROC. ANN. art. 14.04 (Vernon Supp. 2001). It is Jacobs' contention that this article violates the Fourth Amendment because it does not require probable cause and does not require certain exigent circumstances, such as the impracticality of obtaining a warrant, the possibility that evidence may be removed or destroyed, or the possibility that there is danger to the police officers. (Amended Petition at 181).
This Court initially notes that the wording of this statute requiring that there be proof that a felony has been committed is quite similar to the definition of "probable cause." But, regardless of the wording of this particular statute, it is well-settled in Texas case law that Texas police officers may not arrest someone without a warrant unless they have both probable cause and meet one of the exceptions contained in Articles 14.01-14.04 of the Texas Code of Criminal Procedure. See Stull v. State, 772 S.W.2d 449, 451 (Texas. Crim. App. 1989) (en banc); Self v. State, 709 S.W.2d 662, 665 (Tex.Crim.App. 1986). Indeed, in its opinion on direct appeal in the instant case, the Court of Criminal Appeals outlined this well-established rule before ruling that the police officers who arrested Jacobs had probable cause to arrest him. See Jacobs, slip op. at 5. Thus, Texas law, be it case law or statutory law, does require that an officer have probable cause before making a warrantless arrest.
With respect to Jacobs' assertion that the statute is unconstitutional for not requiring certain exigent circumstances before a warrantless arrest is made, the Fourth Amendment does not require that there be any exigent circumstances before an officer may make a warrantless arrest in public. Rather, all that is required for an officer to make a warrantless arrest in a public place is that the officer have probable cause to believe that a felony has occurred. United States v. Watson, 423 U.S. 411, 416-24 (1976). Texas state law gives its citizens greater rights by requiring that police officers meet one of its exceptions before making a warrantless arrest. But, as the Fifth Circuit has noted, while states are free to place greater restrictions on arrests under state law, their citizens do not thereby acquire any greater right under the federal constitution. Fields v. City of South Houston, Texas, 922 F.2d 1183, 1189 (5th Cir. 1991), citing Street v. Surdyka, 492 F.2d 368, 372 (4th Cir. 1974).
The state court's conclusion that Jacobs had failed to prove that Article 14.04 violates the federal constitution is not contrary to clearly established federal law, and Jacobs' twenty-eighth ground for relief is therefore without merit. It is recommended that Jacobs' twenty-seventh and twenty-eighth grounds for relief be denied.
C. Identification Procedures
In his fortieth ground for relief, and this Court's third ground, Jacobs contends that his federal constitutional rights were violated by the admission into evidence of the testimony of the victim's father identifying Jacobs as the assailant. Specifically, Jacobs asserts that the pre-trial identification procedures used by the police and the State were impermissibly suggestive, thereby rendering the witness "in-court identification of Jacobs as the assailant unreliable and, therefore, inadmissible.
Jacobs also incorporates in his fortieth ground for relief a claim that information about the pre-trial identification procedures used with Hugh Harris was withheld from the defense. This issue will be addressed fully when Jacobs' thirty-ninth ground for relief alleging prosecutorial misconduct is addressed in Subpart I, infra.
When confronted with this issue on direct appeal, the Court of Criminal Appeals apparently did not decide whether or not the pre-trial identification procedures were, in fact, impermissibly suggestive, and instead held that Harris' in-court identification was not affected by any suggestive procedures. In reaching this decision, the court noted that: 1) Harris testified at the pre-trial hearing that, after looking Jacobs up close and in the eyes, he was certain that Jacobs was the assailant; 2) Harris was never asked to identify Jacobs from his identification card; 3) Harris testified at trial that the identification card did not assist him in identifying Jacobs at trial and that it was based on seeing Jacobs in his son's bedroom; and 4) Harris accurately described Jacobs as the suspect before ever being shown a picture of him. Jacobs, slip op. at 14. This ruling by the Court of Criminal Appeals that, even assuming that the pre-trial identification procedures were impermissibly suggestive, there was no substantial likelihood of misidentification, was not an unreasonable application of Supreme Court precedent on this issue.
Applicable Facts
During the pre-trial identification hearing, Hugh Harris testified regarding pre-trial identification procedures used by the police as follows: On the day of the murder he went to the police station and prepared a composite drawing of the man he saw standing over his son holding a knife. (Pre-trial hearing at 196). Three days after the murder he again went to the police station upon request. At that time, he was read and shown a written statement written by Jacobs, in which he admitted being in the house that morning, but claimed that he did not murder the victim and had been there because he had been having an affair with Holly Kuper, Harris' wife. When the officer showed Harris this statement, the officer also made a statement to the effect that the police had caught the assailant, and he put Jacobs' photo identification card on the table. Harris looked at the picture and stated that it looked like the assailant. The officer never asked Harris whether Jacobs was the assailant, and Harris did not have the impression that the officer was asking him to identify the man. Harris told the officer that he wanted to see Jacobs in person to make sure that it was the right man. Harris was never shown either a photographic or live lineup that included Jacobs. (PTH at 197-200).
This statement was not admitted into evidence at trial. (SOF IV:4-5; XII:42-3).
With regard to pre-trial identification procedures used by the State, Harris further testified at this same hearing that, before this hearing began, Harris sat in the courtroom for a period of time waiting to be sworn in, and that afterwards, Harris told the prosecutor that, although he had seen Jacobs sitting in the courtroom, he wanted to see Jacobs' face in order to make an identification. (PTH at 184-88). Harris also testified that his identification of Jacobs as the assailant while on the stand at the hearing was the first time that he knew Jacobs was the assailant and that being shown Jacobs' identification card did not aid him in this identification. (PTH at 200-5). When Harris actually identified Jacobs at this pre-trial hearing as the assailant, it was from only a few feet away, and Jacobs was wearing his panama hat, as requested by the State. (PTH at 184-88).
On cross-examination at this hearing, Harris admitted that after sitting in the courtroom with Jacobs present, he would have said that Jacobs was the assailant with the information that he had, but he wanted to have more information by seeing him face-to-face and up close. (PTH at 212-3). Harris also acknowledged that he saw Jacobs on television photographed at a distance walking from a van to a building, but that this viewing did not help or affect his identification of Jacobs. (PTH at 205).
At trial, Harris identified Jacobs as the man he saw holding a knife in his son's bedroom on the morning of the murder. He further testified that he was identifying Jacobs as the assailant from his memory of that morning and not because he was shown a photograph of Jacobs by the police and not because he had seen Jacobs from a distance on television. On cross-examination at trial Harris acknowledged that, on the day of the murder, he was shown several pictures by a police officer, but a picture of Jacobs was not included in this group. At that time, Harris identified a man other than Jacobs as looking similar to the man he saw in his home. (SOF XX: 160-5, 191-4).
Analysis
Jacobs contends that the pre-trial identification procedure was impermissibly suggestive because Harris was shown a single photograph of Jacobs and told that the police had caught the man who had murdered his son, because Harris sat in the courtroom prior to the beginning of the pre-trial identification heating while Jacobs was also in the room, and because Jacobs was required to put his panama hat on before Harris identified him as the assailant during the pre-trial heating. Jacobs further contends that there is a substantial likelihood that these suggestive procedures caused a misidentification because Harris did not have a long time to view the assailant, because Harris' composite sketch differs from Jacobs in some ways, because Harris identified someone other than Jacobs as the suspect, and because of the nine month lapse in time between the murder and the pretrial hearing when Harris identified Jacobs.
The Due Process clause protects accused individuals from the use against them of unreliable identification evidence that resulted from impermissibly suggestive procedures. Manson v. Brathwaite, 432 U.S. 98 (1977). The key factor in determining the admissibility of identification testimony is whether, under the totality of the circumstances, the identification was reliable. Id . at 114. The United States Supreme Court has established a two-prong test to determine the admissibility of identification evidence. First, it must be determined whether the identification procedure was impermissibly suggestive and second, whether the procedure posed a "very substantial likelihood of irreparable misidentification." Simmons v. State, 390 U.S. 377, 384 (1968); see also United States v. Rogers, 126 F.3d 655, 658 (5th Cir. 1997). If the answer to both questions is yes, the identification is inadmissible. United States v. Sanchez, 988 F.2d 1384, 1389 (5th Cir. 1993). The five factors to be considered in determining the likelihood of misidentification are: 1) the opportunity of the witness to observe the criminal at the time of the crime; 2) the witness's degree of attention; 3) the accuracy of the witness's prior description; 4) the witness's level of certainty; and 5) the time between the crime and the identification. Neil v. Biggers, 409 U.S. 188, 199 (1972). These factors should be weighed against the corrupting effect of a suggestive identification procedure. Manson, 432 U.S. at 114 .
Harris testified at trial that it was well-lit in the room where he saw the assailant because the sun was already up, that he focused on the assailant's face for at least five seconds from a distance of three feet or less, that he focused on the face and the eyes especially, and that he was able to identify Jacobs from the day of the murder and not because of the photograph he was shown or the brief time he saw him on television from a distance. (SOF XX:78, 81, 110-11, 140, 152-3, 193-4). Harris also helped construct a composite sketch of the assailant that had similar characteristics as Jacobs and matched descriptions of others, including the fact that the assailant had a full beard. And, Harris gave a written statement on the day of the murder describing the assailant as a short, compact looking man in a straw hat, a description that matched the description given by several others. (SOF XXVII:State's Ex. #13, 31). Accordingly, even though it had been several months since the murder when Harris identified Jacobs as the assailant, Harris' prior descriptions of Jacobs were accurate, he was able to have an unobstructed view of the man from a short distance away, his attention was focused entirely on the assailant right in front of him, and once Harris saw Jacobs face-to-face so that he could see his eyes and his build, he was very certain that Jacobs was the man who murdered his son.
Moreover, defense counsel cross-examined Harris extensively about both his observance of the crime and his pretrial identification of Jacobs. (SOF XX:136-85). Such cross-examination substantially lessens any danger of misidentification that the use of a pre-trial photo line-up may create. See Simmons, 390 U.S. at 384 . Therefore, based on the factors set forth in Neal v. Biggers, it cannot be said that the Court of Criminal Appeals' determination that the in-court identification was not affected by the pre-trial procedures was unreasonable. See United States v. Burbridge, 252 F.3d 775, 780-1 (5th Cir. 2001) (stating that, even if one-on-one show-up was impermissibly suggestive, some factors taken into consideration in determining that there was no danger of irreparable misidentification were the facts that the two witnesses viewed the unmasked robber from a few feet away for fifteen seconds, testified that they watched his face closely and were very attentive to him, gave descriptions of robber that were consistent in all major aspects of his appearance, and witnesses were certain of the identification when initially asked to identify the perpetrator). Jacobs' fortieth ground for relief is therefore without merit, and it is recommended that it be denied.
D. Evidence of Eyewitness Reliability
In his forty-second ground for relief, and this Court's fourth ground, Jacobs asserts that his rights to due process and equal protection under the Fourteenth Amendment were violated because the trial court excluded the testimony of a defense expert about the possible unreliability of identification testimony in general, and, in particular, Hugh Harris' identification of Jacobs as the man whom he saw in his son's room holding a knife.
In addressing this issue on direct appeal, the Court of Criminal Appeals, citing its previous decision in Pierce v. State, 777 S.W.2d 399, 415 (Tex.Crim.App. 1989), held that the trial court had not abused its discretion in excluding the evidence because the jury would not "have been measurably aided" by the testimony. Jacobs, slip op. at 17. Jacobs contends, however, that his constitutional rights were violated by the exclusion of this evidence because, under the circumstances of his case, the expert testimony regarding eyewitness identification was vital.
At trial, defense counsel requested, and was denied, permission to have defense expert, Dr. Robert Powitzky, a forensic psychologist, present during Hugh Harris' testimony. (SOF XX:7-8, 10). The trial court did, however, allow Dr. Powitzky to read a transcript of Hugh Harris' testimony, and out of the presence of the jury, Powitzky testified that, if called as a witness, he would testify about the various factors that might render identification testimony unreliable. He also gave his opinion that there was a "distinct possibility" that Hugh Harris was mistaken in his identification of Jacobs as the assailant, given the stress of the situation, the limited time Harris had to view the assailant, and the length of time between the event and when Harris identified Jacobs as the assailant. (SOF XXIII:179-204). Subsequent to this hearing, the trial court denied defense counsel's request to present Powitzky as a defense witness. In reaching this ruling, the trial judge stated that he was taking into consideration the fact Hugh Harris' eyewitness was not the State's sole evidence against Jacobs as well as the trial judge's own belief that the cross-examination of Harris was an adequate vehicle to reveal any possible mistakes in the identification and to illustrate the stress Harris was under at the time of the attack. (SOF XXIII:214-5).
The Supreme Court has noted that state and federal lawmakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. And, the exclusion of evidence does not unconstitutionally abridge an accused's right to present a defense so long as the exclusion is not arbitrary or disproportionate. United States v. Sheffer, 523 U.S. 303, 308 (1998), citing Rock v. Arkansas, 483 U.S. 44, 56 (1987). But, as noted by Jacobs in his response brief, the Supreme Court has found that certain state evidentiary rules excluding certain types of evidence do violate criminal defendants' federal constitutional rights. In Rock v. Arkansas, the Supreme Court held that a rule excluding all hypnotically refreshed testimony impermissibly infringed on criminal defendant Rock's constitutional right to testify on her own behalf because it resulted in the exclusion of most of her testimony about the circumstances surrounding her husband's death. Rock, 483 U.S. at 56-61 . In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court ruled that a Mississippi state evidentiary rule that excluded the hearsay statements by a third party confessing to the murder for which Chambers was on trial and the state's "voucher" rule which prevented defense counsel from treating this third party as a hostile witness and cross-examining him deprived Chambers of a fair trial because he was not allowed to present witnesses in his own defense. Id . at 300-2. And, in Washington v. Texas, 388 U.S. 14, 23 (1967), the Court held that state evidentiary rules preventing a criminal defendant from calling as a witness any co-participant in the crime, either charged or convicted, violated a criminal defendant's Sixth Amendment right to compulsory process.
Jacobs cites these three Supreme Court cases which have invalidated particular state evidentiary rules as support for his claim, as well as the Fifth Circuit case United States v. Moore, 786 F.2d 1308 (5th Cir. 1986). (Amended Petition at 227; Response Brief at 22). In Moore, the Fifth Circuit stated that it accepted "the modern conclusion that the admission of expert testimony regarding eyewitness identifications is proper, and we have no prior contrary authority which binds us." Id at 1312. Nevertheless, the Fifth Circuit went on to hold that the district court in the case before it did not abuse its discretion in refusing to admit eyewitness identification expert testimony, stating that such a decision is squarely within the discretion of the trial judge. The Court went on to note that in some cases where eyewitness testimony will determine guilt or innocence, expert eyewitness identification testimony may be critical, but held that Moore was not such a case. Id . at 1312-3.
As can be seen by the foregoing authority, the Supreme Court has invalidated some state evidentiary rules that prevented criminal defendants from testifying on their own behalf or presenting witnesses on their behalf. Nonetheless, in Sheffer, the Supreme Court ruled that a per se rule against the admission of polygraph evidence in court martial proceedings did not violate an accused's right to present a defense. Id . at 316. And, in Sheffer, the Supreme Court stated that its own case law did not stand for the proposition that a defendant is denied a fair trial whenever an evidentiary rule excludes favorable evidence. Instead, an exclusion of evidence will be considered unconstitutionally arbitrary or disproportionate only in circumstances where it has infringed on a "weighty interest of the accused." Id . at 308, 316. Furthermore, the Fifth Circuit has noted that, in federal habeas actions, a state court's evidentiary rulings will mandate relief only when an error is so extreme that it constitutes a denial of fundamental fairness. Little v. Johnson, 162 F.3d 855, 862 (1998), cert. denied, 526 U.S. 1118 (1999); Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir. 1986).
In the instant case no state evidentiary rule existed which excluded Dr. Powitzky's testimony. Instead, the trial judge in this case ruled that expert eyewitness testimony would not be admitted at trial, basing his decision on the fact that the eyewitness testimony was not the sole evidence against Jacobs and his own belief that the cross-examination of Hugh Harris was adequate do shed light on possible inadequacies in his identification of Jacobs as the assailant. And, in fact, as noted by the Court of Criminal Appeals in its decision on direct appeal, there was substantial evidence of Jacobs' guilt other than Hugh Harris' identification of him, including a set of his fingerprints found on a knife in the victim's house, and testimony from several witnesses that a man matching Jacobs' unique description was at the victim's house the day before and was seen running from the location of the house shortly after the murder, hailing a cab, and directing that cab to a location where he was arrested several days later. Jacobs, slip op. 1-3. Furthermore, bloody clothes were found in Jacobs' apartment and several one-hundred-dollar bills were in Jacobs' possession at the time of his arrest. ( See Id . at 3-4; SOF XXI:249-52).
While the trial court in the instant case did exclude testimony that would have been favorable to Jacobs, neither Supreme Court case law nor Fifth Circuit case law dictates a determination that the trial judge abused his discretion in this set of circumstances such that his decision was arbitrary or disproportionate or resulted in a denial of fundamental fairness. To the contrary, the Fifth Circuit has made clear that the decision whether to admit eyewitness testimony is squarely within a trial court's discretion, and the circumstances of the instant case are not such that it can be said that the trial judge's decision to exclude expert testimony on eyewitness identification resulted in a denial of fundamental fairness, especially given the substantial amount of other evidence linking Jacobs to the murder. Moreover, the circumstances of this case are not comparable to the situations where the Supreme Court has ruled the exclusion of evidence to be a violation of the federal constitution. Accordingly, the Court of Criminal Appeals' decision that the trial court did not abuse its discretion in excluding the evidence is not contrary to clearly established federal law. Jacobs' forty-second ground for relief is without merit, and it is recommended that it be denied.
E. Ineffective Assistance of Counsel Claims
In his thirty-fourth through thirty-eighth grounds for relief, and this Court's fifth ground, Jacobs asserts that his right to effective assistance of counsel at trial under the Sixth Amendment was violated. Specifically, in his thirty-fourth ground, Jacobs asserts that his trial counsel were ineffective for failing to present favorable witnesses at the punishment phase of the trial; in his thirty-fifth ground he asserts that his trial counsel were ineffective for failing to present evidence of his mental illness and abusive upbringing at the punishment phase of the trial; in his thirty-sixth ground he contends that counsel were ineffective for failing to adequately investigate, discover, and present exculpatory and mitigating evidence; and in his thirty-eighth ground he contends that counsel were ineffective for entering into an agreement with prosecutors to excuse certain jurors who had very strong feelings either for or against the death penalty. Respondent contends that these claims are procedurally barred from being considered on federal habeas corpus review because the claims were not addressed by the Texas state court because of a state procedural rule.
Jacobs has titled his thirty-seventh ground for relief as a claim that he is entitled to a new trial because the statutory scheme under which he was sentenced failed to accommodate certain mitigating evidence. This ground, however, is included with the grounds alleging ineffective assistance of counsel and is not briefed separately. Moreover, Jacobs has raised substantially the same argument in his twenty-second ground for relief. Accordingly, this Court will address the thirty-seventh claim along with the ineffective assistance claims with which it has been grouped by Jacobs.
As Jacobs concedes, these claims were not raised in his initial state writ application. Instead, Jacobs raised these claims in a pleading that Jacobs entitled a "supplemental brief" to his original petition. (Amended Petition at 194). After the state responded to this supplement, the state habeas court signed a document entitled "Notation of Subsequent Writ Application," in which the state habeas court stated that the supplemental brief was a subsequent application for writ of habeas corpus under Article 11.071 of the Texas Code of Criminal Procedure. (Petition Exhibits vol 3:ex. B). The Court of Criminal Appeals dismissed the supplement as an abuse of the writ because the court determined that the application did not meet the requirements of Article 11.071 § 5. Ex parte Jacobs, No. 34,253-02 (Tex.Crim.App. October 22, 1997).
Under Article 11.071 § 5, if a subsequent application for a writ of habeas corpus is filed after an initial application has already been filed, the state habeas court may not consider the merits of or grant relief based on the subsequent application unless the application either establishes that the claims could not have been presented previously because the factual or legal basis was unavailable, that, but for a violation of the federal constitution no rational juror could have found the applicant guilty, or that, but for a constitutional violation, no rational juror would have answered any of the punishment special issues in the state's favor. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a) (Vernon 1995).
(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071 or 37.0711.TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a) (Vernon 1995).
The Supreme Court has held that, when a state prisoner defaulted his federal claims when he raised them in state court pursuant to an independent and adequate state procedural rule, federal habeas review is barred unless the prisoner can establish either cause and prejudice for the default as well as actual prejudice as a result of the alleged violation of federal law or that failure to consider the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Fifth Circuit has determined that Article 11.071 § 5 is an independent and adequate state procedural rule by which Texas state courts may rule that state prisoners have procedurally defaulted federal constitutional claims raised in state writs of habeas corpus. Barrientes v. Johnson, 221 F.3d 741, 759 (5th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001). Accordingly, unless Jacobs can establish either cause and prejudice for not raising these ineffective assistance of counsel claims in his initial state application or that the failure to address these claims now would constitute a fundamental miscarriage of justice, these claims will be procedurally barred.
Jacobs does not assert that this Court's failure to address these claims would be a fundamental miscarriage of justice. But, apparently in an attempt to meet the requirement that he establish cause and prejudice for not raising these claims in his initial state application, Jacobs asserts that, contrary to the ruling by the Court of Criminal Appeals dismissing his supplemental application as a subsequent writ that did not meet the requirements of Article 11.071 § 5, these ineffective assistance of counsel claims could not have been raised in his initial application because adequate compensation was not provided to state writ counsel to investigate these claims. As support for this argument, Jacobs has submitted an undated document entitled "Texas Court of Criminal Appeals' Guidelines and Rules for Attorneys' Fees and/or Expenses Pursuant to Article 11.071, V.A.C.C.P., Appointment." This document states that attorneys appointed to represent prisoners under sentences of death in their state applications for writ of habeas counsel would be compensated at a rate of $100.00 per hour, that after incurring $7500.00 in counsel's fees or $2500.00 in expenses an attorney must seek and obtain authorization from the Court of Criminal Appeals before incurring additional fees, and that, as a general rule, the court would not compensate counsel for fees in excess of $7500.00 or expenses in excess of $2500.00. Federal habeas counsel, James Volberding, was appointed by the Court of Criminal Appeals on April 16, 1996, to represent Jacobs on the state level as well. (Petition Exhibits, vol. 3:ex. E). Counsel states in Jacobs' federal habeas petition that, although he performed over 160 hours of work before filing the initial state habeas application on October 7, 1996, in which he raised seventeen grounds for relief including the claim that Jacobs is incompetent to be executed and the claim that the punishment jury instructions were unconstitutional, he submitted invoices before filing the initial application totaling only $6000.00. Then, after filing the application, he submitted another invoice for the remaining amount of work performed by him in the amount of $12,380.00, most of which the Court of Criminal Appeals paid. Once he determined that the Court of Criminal Appeals was willing to pay for work above and beyond the initial $7500.00, counsel began researching the ineffective assistance of counsel claims by interviewing four members of Jacobs' family and obtaining depositions and an affidavit. He then filed a supplemental application in which he raised the ineffective assistance of counsel claims. (Amended Petition at 204-6).
The Supreme Court has stated that ordinarily the existence of cause for a procedural default must turn on whether the petitioner can show that some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rule. Murray v. Carrier, 477 U.S. 478, 486 (1986). Two examples given by the Court of instances when this test would be met are where the factual or legal basis was unavailable to counsel or where there was some interference by officials that made compliance with the procedural rule impracticable. Id . Jacobs has cited to no case, and this Court can locate none, that extends this rule to situations in which counsel does not present a particular claim because he fears that he will not be compensated for it. Rather, the Supreme Court has stated that ignorance or inadvertence on an attorney's part does not constitute "cause" for a procedural default. Coleman, 501 U.S. at 753 . In the instant case, counsel had six months from the time he was appointed until the day on which the state habeas application was due. There is nothing in the record before this Court to indicate that this was an insufficient time to investigate and develop the ineffective assistance claims that Jacobs raises had counsel desired to do so. Indeed, once counsel began to investigate these claims, he filed a supplemental application addressing these claims less than six months later. But, acting under a reasonable belief that he was limited in the amount he would be paid for his work, counsel made a decision about what claims to raise in the initial application. Presumably, counsel could have developed the ineffective assistance of counsel claims, but he instead chose to raise seventeen other claims. Indeed, he also chose to exceed the amount of hours for which he expected to be paid without first getting permission to do so. While it is true that counsel had to make decisions about what claims were most important to raise, such decisions are often made by legal counsel, and there is no precedent for finding that it constitutes cause for a procedural fault. As Jacobs has failed to establish cause for his failure to raise these claims in his initial state writ application, this Court need not address the prejudice prong. See Means v. Johnson, 138 F.3d 1007, 1011 (5th Cir.), cert. denied, 525 U.S. 968 (1998). Jacobs is procedurally barred from raising his thirty-fourth through thirty-eighth grounds for relief in federal court, and it is therefore recommended that they be denied.
F. Jury Instructions
In his twenty-second through twenty-fourth grounds for relief, and this Court's sixth ground, Jacobs asserts that the jury instructions provided at the punishment phase of the trial were constitutionally inadequate. In his twenty-second ground for relief, Jacobs asserts that his right to be free from cruel and unusual punishment under the Eighth Amendment was violated because the jury instructions given at the punishment phase of his trial did not provide an adequate vehicle for the jury to consider mitigating evidence. In his twenty-third ground for relief, Jacobs argues that his rights under the Fifth, Eighth, and Fourteenth Amendments were violated because the jury instructions provided at the punishment phase of the trial did not explain the concept of mitigating evidence. Finally, in his twenty-fourth ground for relief, Jacobs contends that his rights under the Fifth, Eighth, and Fourteenth Amendments were violated because the jury instructions provided at the punishment phase of the trial did not define certain terms used in the instructions. On direct appeal, the Court of Criminal Appeals concluded that Article 37.071, as it existed at the time of Jacobs' trial, was not unconstitutional for not requiring that the jury receive an instruction regarding the consideration of mitigating evidence and that the jury could have given mitigating effect to Jacobs' evidence through the instructions provided to them. See Jacobs, slip op. at 18-9. When it addressed all of these same issues at the state level, the state habeas court concluded that Jacobs had failed to prove by a preponderance of the evidence that the jury in his case was unable to consider and give effect to this mitigating evidence presented by the defense at trial or that the jury instructions were unconstitutional because certain terms in the punishment jury charge were not defined. (SHF #48, 51-3, 63).
Jury Instructions on Mitigating Evidence
In his twenty-second ground for relief, Jacobs contends that the instructions given to the jury at the punishment phase of his trial were not sufficient to allow the jury to consider evidence presented by Jacobs at punishment from Jacobs' neighbor, his landlord, and an acquaintance that he was peaceful, helpful, and consistently employed. (SOF XXV: 10-29; XXVI: 126-36).
Because Jacobs committed capital murder prior to September of 1991, his jury was required to answer special issues regarding whether the murder was committed deliberately and whether there was a probability that Jacobs would be a future danger to society. See TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981). Jacobs cites Penry v. Lynaugh, 492 U.S. 302 (1989), a Texas capital murder case, as support for his claim that the jury in his case was unable to consider the mitigating evidence he presented in answering these questions. The punishment special issues given to the jury at Penry's trial were the same as those given to the jury at Jacobs' trial. In Penry, the Supreme Court held that Penry's constitutional rights were violated because the jury in Penry's capital murder trial was unable to give any mitigating effect, through the punishment special issues as they existed at that time, to evidence presented by the defense that Penry was mentally retarded and suffered severe physical and emotional abuse as a child. The Supreme Court ruled that the jury was unable to give any mitigating effect to this evidence because a juror could have believed that Penry committed the murder deliberately and that he would be a future danger to society and also believed that he should not be executed because of his retardation and the abuse he suffered, but would have been unable to vote to spare his life. Indeed, the Supreme Court noted that Penry's evidence of mental retardation and severe childhood abuse was a "double-edged sword" because it mitigated his responsibility because he would be less able to control his behavior than an average person, but, because he could not learn from his mistakes due to his mental limitations, he posed a future danger to society. 492 U.S. at 322-5. Although at the time of Jacobs' trial the trial court was not statutorily required to submit a mitigation special instruction, Jacobs contends that such an instruction was constitutionally required because the jurors in his case, like the jurors in Penry's case, were unable to adequately consider the mitigating evidence that he presented at trial through their answers to the two special issues. The Court disagrees.
The two questions that the jury was required to answer at Jacobs's trial were:
Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, Bruce Charles Jacobs, that caused the death of the deceased, Conrad Harris, was committed deliberately and with the reasonable expectation that the death of the deceased would result?
Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Bruce Charles Jacobs, would commit criminal acts of violence that would constitute a continuing threat to society?
(Transcript at 77).
After Penry was handed down by the Supreme Court, and after Jacobs' trial, Article 37.071 of the Texas Code of Criminal Procedure was amended, the deliberateness special issue was deleted, and a mitigation special issue was added. The mitigation special issue that has been added to Article 37.071 reads as follows:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.TEX. CODE CRIM. PROC. ANN. art. 37.071(e) (Vernon Supp. 1999).
Subsequent to Penry, the Supreme Court has stated that a trial court's refusal to give an additional mitigating instruction does not constitute a constitutional error unless there is a reasonable probability that the jury applied the challenged instructions in a way that prevented the consideration of constitutionally relevant mitigating evidence. Boyde v. California, 494 U.S. 370, 382 (1990); Johnson v. Texas, 509 U.S. 350, 367-8 (1993). Moreover, the Supreme Court has specifically stated that a state may shape and structure the jury's consideration of evidence at the punishment phase of a capital murder trial, so long as it does not preclude the jury from giving effect to any relevant evidence. Buchanan v. Angelone, 522 U.S. 269, 270 (1998).
In Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994), the Fifth Circuit outlined the analysis that should be done for evaluating Penry claims such as the one Jacobs makes. First, for a petitioner to be entitled to relief on a claim that the jury was unable to consider mitigating evidence, the mitigating evidence must be constitutionally relevant and second, it must have been beyond the effective reach of the jurors. Mitigating evidence is constitutionally relevant in a Penry claim where a defendant has shown that he has a uniquely severe permanent handicap through no fault of his own and that the criminal act was attributable to this severe permanent condition. Boyd v. Johnson, 167 F.3d 907, 911-2 (5th Cir.), cert. denied, 527 U.S. 1055 (1999). Thus, for Jacobs to be entitled to relief on this claim, he must establish both that there was evidence presented at his trial that he has a uniquely severe permanent handicap and that the murder was attributable to this condition as well as that the jury was unable to consider this evidence through the two special issues given to them.
Jacobs presented evidence through a neighbor, his landlord, and an acquaintance that he was peaceful, helpful, and a good and consistent worker. (SOF XXV:10-29; XXVI:126-36). Moreover, Jacobs' trial counsel argued in his closing statement that the jury should also take into consideration that it had been fourteen years since Jacobs had been in prison for a previous offense. (SOF XXVI:155-9). None of this evidence presented at trial can be considered constitutionally relevant under the test outlined by the Fifth Circuit, as it is not evidence of a severe, permanent handicap. Moreover, evidence that Jacobs had not been incarcerated for some time and evidence that he was kind and helpful to some people he knew is surely precisely the type of evidence that may be considered when a jury is determining whether there is a reasonable probability that a defendant will commit criminal acts of violence. See Crank v. Collins, 19 F.3d 172, 175 (5th Cir. 1994) (holding that good character evidence is within the effective reach of the jury under the future dangerousness special issue). Thus, Jacobs' claim that the jury was unable to consider his mitigating evidence through its answers to the two special issues must fail. The state court s conclusion that the jurors were able to consider Jacobs' mitigating evidence within the context of the two special issues given to them was not an unreasonable application of federal law.
Jury Instruction on Concept of Mitigating Evidence
In his twenty-third ground for relief, Jacobs asserts that his federal constitutional rights were violated because the jury in his case was not given an instruction explaining the concept of mitigating evidence at the punishment phase of the trial. The jury in Jacobs' case received the following instruction:
You are instructed that in answering the special issues, which you will show in your verdict, you may take into consideration all of the facts shown by the evidence admitted before you in the full trial of this case, and the law as submitted to you in this charge and the charge heretofore given to you by the Court.
(Transcript at 75-6).
As support for his claim that this instruction is unconstitutional because it does not explain the concept of mitigating evidence, Jacobs has submitted to both the state habeas court and this court several affidavits from several "social science experts," including two English professors, a psychology professor, a communication and rhetoric professor, and a philosophy professor. All of these experts examined the jury instructions given to the jury in Jacobs' case. All of these experts have experience in examining language and the way it is understood when read. (Petition Exhibits, vol. 2:ex. F, O, H, I, J). Several of these experts state in their affidavits that they have concerns because the punishment jury charge never mentions or defines the concept of mitigating evidence. Therefore, these experts contend, there is a possibility that the jurors in Jacobs' case did not know that they could consider mitigating evidence in reaching their answers to the two special issues. (Exhibits G, H, J). Accordingly, because the jury in his case was not instructed that they could specifically consider mitigating evidence submitted in the case, and the concept of mitigating evidence was not defined, Jacobs argues that his rights under the Fifth, Eighth, and Fourteenth Amendments were violated because his mitigating evidence was beyond the reach of the jury.
Contrary to Jacobs' argument, however, when confronted with a similar claim as the one Jacobs raises, the Fifth Circuit initially noted that the failure to instruct the jury on the concept of mitigating evidence generally does not constitute a constitutional error unless there is a reasonable probability that the jury applied the challenged instructions in a way that prevented the consideration of constitutionally relevant mitigating evidence. Trevino v. Johnson, 168 F.3d 173, 182 (5th Cir.), cert. denied, 527 U.S. 1056 (1999) (citing Johnson v. Texas, 509 U.S. 350, 367-8 (1993)). The Fifth Circuit then went on to hold in Trevino that a state court's conclusion that an identical instruction as the one given in Jacobs' case did not preclude the consideration of mitigating evidence such as social history and age is not a conclusion either contrary to, or an unreasonable application of, federal law. Thus, regardless of the evidence submitted by Jacobs from social science experts, pursuant to Fifth Circuit precedent, the conclusions reached by the Court of Criminal Appeals and the state habeas court that Jacobs' constitutional rights were not violated because the jury was not instructed on the concept of mitigating evidence generally are not contrary to clearly established federal law. Jacobs' twenty-third ground for relief is without merit.
Definitions of Terms in Jury Instructions
Finally, in his twenty-fourth ground for relief, Jacobs argues that his constitutional rights were violated because the jury was not given definitions of terms used in the punishment jury charge, including "deliberately," "criminal acts of violence," "probability," "continuing threat," and "society." At both the state level and again before this Court, Jacobs uses affidavits from social science experts as support for this argument.
According to their affidavits, after reading the instructions given to the jury at the punishment phase of Jacobs' trial, several of these social science experts saw potential problems with the jurors' understanding of terms such as "deliberately" as compared with the term intentional. The same experts believed that jurors could have a problem understanding the term "probability" and whether this term in the context of the second special issue means any chance that a defendant would commit a criminal act of violence or that it is more likely than not that a defendant would commit a criminal act of violence. (Exhibits F, H, I, J). And two of the experts expressed more general concerns about the jurors' understanding of the terms "criminal acts of violence," "continuing threat," and "society." (Exhibit F, I).
This Court notes initially that no evidence has been presented to either the state habeas court or this Court that any jurors actually did misunderstand these terms. Jacobs has, however, submitted excerpts from the voir dire of nine of the jurors who served on the jury in Jacobs' trial (Petition Exhibits, vol. 1:ex. P-S, vol. 2:ex. A-E). In these excerpts, contrary to Jacobs' argument that the jury was unable to understand certain terms, the attorneys for the State and the defense spend a substantial amount of time discussing the terms "deliberately" and "probability" and the meanings that the potential jurors place on those words. Moreover, the state habeas court made findings of fact, supported by the record, that each juror was provided with the court's definition of intentional murder, that eight of the jurors were given a suggested definition of "deliberately" by defense counsel, and that each juror acknowledged that "deliberately" means something more than "intentionally" and that he or she would not automatically answer the first special issue in the affirmative simply because Jacobs had already been convicted of committing an intentional murder (SHF #62). Thus, at least with respect to the term "deliberately," and to a lesser extent the term "probability," the evidence available to this Court contradicts Jacobs' contention that the jurors did not have an adequate understanding of these terms.
Furthermore, the Fifth Circuit has consistently held that these terms are not unconstitutionally vague and can instead be understood in their common meaning. James v. Collins, 987 F.2d 1116, 1119-20 (5th Cir. 1993) (not necessary to define "deliberately," "probability," "criminal acts of violence," or continuing threat to society"); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993) (not necessary to define "deliberately," probability," or "society"); Thompson v. Lynaugh, 821 F.2d 1054, 1060 (5th Cir. 1987) (holding that "deliberately" need not be defined as its common meaning is sufficiently clear to allow jury to answer special issues). And, although in Penry the Supreme Court held that the special issues given to the jury in Jacobs' case do not allow juries to consider certain mitigating evidence, the Supreme Court has never determined that the federal constitution requires that certain terms used in the two issues be given specific definitions. Given the existence of a long line of Fifth Circuit precedent that is contrary to Jacobs' position on this issue, this Court concludes that the opinions of several experts questioning how jurors might understand these phrases, without further evidence of misunderstanding by the jurors in the instant case, does not render the state habeas court's conclusion an unreasonable application of federal law. Jacobs' twenty-second, twenty-third, and twenty-fourth grounds for relief are without merit, and it is recommended that they be denied.
G. Parole Eligibility
In his twenty-fifth ground for relief, and this Court's seventh ground, Jacobs argues that his federal rights to due process, equal protection, and his right to be free from cruel and unusual punishment were violated because the jurors in his case were not informed that he would not be eligible for parole for twenty years if given a life sentence. Respondent argues in response that Jacobs is procedurally barred from raising this claim because he has failed to exhaust his state claims and because the Texas Court of Criminal Appeals would now find that this claim has been procedurally defaulted. Respondent further contends that even if the claim is considered on its merits, it fails.
In his amended petition and his response brief, Jacobs asserts that he did exhaust this claim because this point was raised, albeit indirectly, within one or more of the grounds for relief argued during the state habeas process. Procedural default occurs when a petitioner fails to exhaust all available state remedies and the state court to which he would be required to petition would now find that the claim is procedurally defaulted. Bledsoe v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999). In his state writ of habeas corpus, Jacobs raised seventeen grounds for relief. But while Jacobs contends that his current claim was raised within the text of his argument in support of another claim, it is clear that this is a separate and distinct claim with a new legal theory. One of Jacobs' state grounds alleged that the sentencing phase jury instructions were unconstitutional for failing to define terms, and Jacobs also argued in his state writ of habeas corpus that the sentencing phase instructions prohibited the jury in his case from considering the mitigating evidence that he presented at trial. (Initial State Habeas Application at 49, 68). But, contrary to Jacobs' argument, none of these grounds contained his current contention that his constitutional rights were violated because the jury in his case was not instructed regarding his parole eligibility if given a life sentence. The exhaustion requirement is satisfied when the substance of the federal claim has been fairly presented to the highest state court, but it is not satisfied if the federal petition presents a new legal theory or a new factual claim. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998), (citing Picard v. Conner, 404 U.S. 270, 275-8 (1971)). Therefore, Jacobs has failed to exhaust his state remedies on this issue.
Jacobs does not argue that he raised this issue on direct appeal, and it is clear that he did not. See Jacobs, slip op. at 4-19.
Furthermore, were this claim now brought in a subsequent state writ of habeas corpus, the Court of Criminal Appeals would consider this claim to be procedurally defaulted under Article 11.071 § 5 of the Texas Code of Criminal Procedure, which prohibits a claim from being raised in a subsequent habeas application unless: 1) it could not have been raised in the previous application because the factual or legal basis was unavailable at the time; or 2) the claim contains sufficient facts establishing that, but for a violation of the United States Constitution, no rational juror would have found Jacobs guilty or would have answered the punishment issues in the State's favor. See TEX. CODE CRIM. PROC. ANN. art 11.071 § 5(a) (Vernon Supp. 1999). Clearly, the legal claim presented in this ground for relief was available to Jacobs at the time he filed his state habeas application, and Jacobs has presented no facts that would establish that no rational juror would have sentenced him to death had the jury been informed that, if given a life sentence, he would have been eligible for parole in twenty years. Accordingly, because Jacobs has failed to exhaust his state remedies with regard to this claim, and because the Court of Criminal Appeals, if presented with a successive state habeas petition on this claim, would find it barred under article 11.071 § 5(a), Jacobs is procedurally barred from raising this ground for relief in a federal petition for writ of habeas corpus.
Jacobs fails to allege, much less argue, any cause and prejudice for failing to present this claim in state court.
Moreover, even when considered on its merits, as permitted under § 2254(b)(2), this claim fails. At the time of Jacobs' trial, Texas state law provided that, if Jacobs had been sentenced to a life sentence, he would have been eligible for parole after serving twenty years. TEX. CODE CRIM. PROC. ANN. art. 42.18 § 8(b) (Vernon 1985), repealed by TEX. GOV'T CODE ANN. § 508.145(b) (Vernon 1997). But, pursuant to state law at the time of his trial, the jury in Jacobs' trial were not informed about his parole eligibility if given a life sentence. As support for his contention that his federal constitutional rights were violated because the jury in his case did not receive his information, Jacobs relies on the Supreme Court case Simmons v. South Carolina, 512 U.S. 154 (1994). Simmons is a death penalty case in which a plurality of the Supreme Court held that, where a defendant's future dangerousness is an issue in a capital case, and the sentencing options are death or life without the possibility of parole, due process allows the defendant to inform the sentencing jury about his parole ineligibility. Id . at 156. Jacobs argues that Simmons is applicable to his case because, had he received a life sentence, he would not have been eligible for parole for twenty years, a time period Jacobs asserts is comparable to a life sentence without parole.
After Jacobs' trial, Texas statutory law was amended to allow the defense, at its own option, to inform the jurors about parole eligibility in capital cases. TEX. CODE CRIM. PROC. art. 37.071 § 2(e) (Vernon Supp. 1999). It should be noted that defense counsel in the instant case did not request that the jury be informed about Jacobs' parole eligibility, nor did defense counsel object to the fact that Article 37.071 did not allow for the jury to be informed about parole eligibility, perhaps because defense counsel feared that revealing this information to the jury would work to Jacobs' detriment. Because there was no such request or objection, this claim may have been considered procedurally barred by the state courts had it been raised there. Nevertheless, this Court will address the claim on its merits alone, as authorized under § 2254(b)(2).
Contrary to Jacobs' argument, however, the plurality opinion in Simmons specifically limited its holding to cases where the sentencing option is between death and life without parole. Justice Blackmun, writing for the Court, went further and stated that "[i]n a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we will not lightly second-guess a decision whether or not to inform a jury of information regarding parole." Id . at 168. And the opinion also noted that, differing from South Carolina, Texas has no life-without-parole sentencing option. Id . at 168, n. 8. Moreover, since the Supreme Court's decision in Simmons, the Fifth Circuit has held that a trial court does not violate a Texas capital murder defendant's Eighth Amendment rights or due process rights by refusing to instruct the jury regarding parole eligibility because Simmons does not apply in Texas cases, but only in cases where life-without-parole is a sentencing option. Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir.), cert. denied, 121 S.Ct. 2226 (2001); Miller v. Johnson, 200 F.3d 74 (5th Cir. 2000); Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994).
Jacobs also cites Brown v. Texas, 522 U.S. 940 (1997), a case in which the Supreme Court denied a petition for a writ of certiorari by a Texas death penalty defendant. In Brown, Justice Stevens issued an opinion entitled "respecting the denial of the petition for writ of certiorari," which was joined by Justices Souter, Ginsburg, and Breyer. In this opinion, Stevens stated that there was an "obvious tension" between the Court's decision in Simmons and Texas law which, at that time, prohibited a capital jury from being informed about parole eligibility. Justice Stevens then went on to state that his primary purpose in writing the opinion was not to comment on the merits of Brown's constitutional claims, but instead to reiterate the fact that the denial of a petition for writ of certiorari is neither a decision on the merits of the questions presented nor an appraisal of their importance. Id .
Thus, although some Supreme Court justices may have indicated in this opinion a willingness to address this issue sometime in the future, at this point in time there is no Supreme Court precedent holding that the federal constitution requires that juries in Texas capital murder trials be informed about defendants' parole eligibility in the event of a life sentence. Indeed, since this opinion in Brown v. Texas was issued, the Fifth Circuit has acknowledged the Brown opinion and once again reiterated its holding that the ruling in Simmons v. South Carolina is not applicable to Texas capital murder trials and that it therefore does not violate a Texas capital murder defendant's constitutional rights to withhold parole eligibility information from the jury. Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir. 1999), cert. denied, 528 U.S. 1145 (2000).
Moreover, even if Simmons did apply to the instant case, Jacobs' claim would be Teague -barred. In O'Dell v. Netherland, 521 U.S. 151, 153 (1997), the Supreme Court held that the rule announced in Simmons is a new rule as defined in Teague v. Lane, 489 U.S. 288 (1989). The Supreme Court further held that this new rule does not meet the narrow exceptions set forth in Teague and therefore cannot provide a ground for federal habeas relief. Id., see also Clark v. Johnson, 227 F.3d 273 (5th Cir. 2000). Jacobs' twenty-fifth ground for relief is both procedurally barred and without merit, and it is therefore recommended that it be denied.
H. Absence of Life-Without-Parole Sentencing Option
In his twenty-sixth ground for relief, and this Court's eighth ground, Jacobs asserts that Article 37.071 of the Texas Code of Criminal Procedure violates his federal constitutional rights under the Eighth and Fourteenth Amendments because it does not provide for a life-without-parole sentencing option. Respondent contends both that Jacobs is procedurally barred from raising this issue in his federal writ of habeas corpus and that the claim fails on its merits.
As with the previous claim, because Jacobs has failed to exhaust his state remedies with regard to this claim, and because the Court of Criminal Appeals, if presented with a successive state habeas petition on this claim, would find it barred under article 11.071 § 5(a), Jacobs is procedurally barred from raising this ground for relief in a federal petition for writ of habeas corpus. See Bledsoe, 188 F.3d at 254; TEX. CODE CRIM. PROC. ANN. art 11.071 § 5(a).
Furthermore, even when considered on its merits as allowed under § 2254(b)(2), this claim fails. The Fifth Circuit has addressed the issue of whether the fact that Texas does not have the sentencing option of life-without-parole renders the Texas capital sentencing scheme unconstitutional. In Andrade v. McCotter, 805 F.2d 1190, 1192 (5th Cir. 1986), a federal habeas petitioner convicted of capital murder and sentenced to death argued that, because there was no life-without-parole sentencing option, the death penalty is unevenly applied in Texas and therefore his right to be free from cruel and unusual punishment under the Eighth Amendment and his right to due process under the Fourteenth Amendment were violated. After first noting that the Texas capital punishment statute passed constitutional muster in Jurek v. Texas, 438 U.S. 262 (1976), and further stating that the federal constitution does not mandate a particular punishment for a particular crime, the Fifth Circuit in Andrade held that neither death nor life imprisonment with the possibility of parole is a constitutionally disproportionate sentence for capital murder and that a constitutional sentencing scheme does not require the third option of life-without-parole. Id . at 1193. Accordingly, Jacobs' twenty-sixth ground for relief is both procedurally barred and without merit, and it is recommended that it be denied.
I. Prosecutorial Misconduct
In his thirty-ninth ground for relief and this Court's ninth ground, Jacobs asserts that his federal constitutional rights to due process, a fair trial, the confrontation of witnesses, and protection from cruel and unusual punishment were violated because of various instances of prosecutorial misconduct during Jacobs' capital murder trial. Specifically, Jacobs contends that the prosecution sponsored perjured testimony from a police officer at both a pre-trial identification hearing and during trial; that the prosecution coached an eyewitness prior to a pre-trial identification hearing by showing several pictures of Jacobs to him and having him sit in the courtroom for several minutes at the beginning of the hearing when Jacobs was also in the courtroom; and that the prosecution suppressed potentially exculpatory evidence by not revealing to the defense prior to trial that two eyewitnesses had picked another man from a police photographic lineup shown to them on the day of the murder. Respondent replies that Jacobs is procedurally barred from raising this issue on federal habeas review because he has failed to exhaust his state court remedies and, even if the claim is considered on its merits as permitted under 28 U.S.C. § 2254(b)(2), it fails.
Jacobs asserts that he is not procedurally barred from raising this ground for relief in this Court because, within this ground for relief he contends, among other things, that there was prosecutorial misconduct at his trial because the lead prosecutor improperly coached Hugh Harris with regard to his identification testimony. Therefore, Jacobs argues, because he argued on both direct appeal and in his state writ that the trial court erred in not suppressing Harris' identification testimony, his entire ground for relief alleging prosecutorial misconduct was exhausted on the state level. (Jacobs's Response Brief at 19-20). But, as acknowledged by Jacobs, he has never before argued, as he does now, that his federal constitutional rights were violated because of prosecutorial misconduct or because the State violated Brady v. Maryland, 373 U.S. 83 (1963). A claim has not been exhausted if the federal petition presents a new legal theory or a new factual claim. Whitehead, 157 F.3d at 387 . Accordingly, as with the previous two claims, because Jacobs has failed to exhaust his state remedies with regard to this claim, and because the Court of Criminal Appeals, if presented with a successive state habeas petition on this claim, would find it barred under article 11.071 § 5(a), Jacobs is procedurally barred from raising this ground for relief in a federal petition for writ of habeas corpus. See Bledsoe, 188 F.3d at 254; TEX. CODE CRIM. PROC. ANN. art 11.071 § 5(a). Furthermore, even when considered on its merits as allowed under § 2254(b)(2), this claim fails.
Sponsoring of Perjured Testimony
With regard to Jacobs' assertion that the State sponsored perjured testimony, Jacobs asserts that Officer John McDonell of the University Park Police Department perjured himself at a pre-trial hearing when he stated that Jacobs did not request an attorney when a statement was taken from him. (SOF III:88-9). On cross-examination at the hearing, McDonell testified that, although a videotape was not made during the time that Jacobs wrote his written statement, a videotape was made of the arraignment of Jacobs. (SOF III:159, 162). At a subsequent pre-trial hearing, this videotape was played to the trial judge, and at this same heating defense counsel and the State disagreed as to whether Jacobs had requested an attorney during the arraignment. (4/27/01 hearing at 4-8). The trial judge later suppressed the written statement based on the statements about a lawyer made by Jacobs on this tape. (SOF IV:4-5; XII:42-3). Jacobs therefore contends that the suppression of the statement is evidence that the prosecutor sponsored perjured testimony from McDonell.
Jacobs further contends that, at a pre-trial hearing and at trial, Officer McDonell lied when he testified that, when he accompanied a cab driver two days after the murder to the location where the driver dropped a man matching Jacobs' description off on the morning of the murder, the cab driver positively identified Jacobs, who was walking down the street at the time, as the man he had picked up near the murder scene. (SOF III:27-9; XXII:77-80). Oncross-examinationduring the pretrial hearing, McDonell was questioned about the fact that the probable cause affidavit completed by another officer present when the driver, Zerai Haile, made his statement states that Haile said that the man "looked" like the same man he had picked up two days earlier. But, even after being shown this affidavit, McDonell again reiterated that Haile said that the man walking down the street was the man he had picked up on the morning of the murder. (SOF III:155-6). Jacobs argues that this was perjury because Haile later testified for the defense at trial and stated that he had told the police officers that the man walking down the street "looked" like the man he had picked up near the murder scene, but without a beard, and that he had told the prosecutor this two months earlier. (SOF XXIII:128-130, 139). Outside the presence of the jury after Haile's testimony, the lead prosecutor stated that he believed that the testimony of McDonell and Haile on this matter, it was a matter of interpretation, that the police in any event had probable cause to arrest Jacobs, that he had not called Haile himself as a witness because he did not speak English well, and that during Haile's testimony all parties had a difficult time understanding him. (SOF XXIII: 144).
Haile testified that he was from Ethiopia. (SOF XXIII: 119).
The Supreme Court has held that the presentation of false evidence at trial, as well as the admission into evidence at trial of false evidence that, although not solicited, is not corrected, violates a criminal defendant's due process rights, if the reliability of a given witness may be determinative of guilt or innocence. Napue v. Illinois, 360 U.S. 264, 269 (1959); Mooney it Holohan, 294 U.S. 103 (1935). This is true whether the nondisclosure was intentional or through negligence. Giglio v. United States, 405 U.S. 150, 154 (1972). But the Supreme Court has also stated that a new trial is dictated only when the false testimony could, in any reasonable likelihood, have affected the judgment of the jury. In the case at hand, assuming arguendo that Officer McDonell was actually testifying falsely either at the pre-trial hearing and at trial, because Jacobs' written statement was in fact suppressed and not used at trial, Jacobs' rights under the federal constitution were not violated by the testimony given by McDonell about the statement at a pre-trial heating. Moreover, while the jury in Jacobs' case was required under the jury charge to determine beyond a reasonable doubt that the arrest of Jacobs was lawful and that the police officers had probable cause to arrest him, as both McDonell and Haile testified at trial regarding what Haile, with his apparently limited abilities to communicate clearly in English, said about Jacobs before he was arrested, Jacobs has not shown that McDonell's testimony, even if false, affected the jury's decision in the case. Accordingly, Jacobs' rights under the federal constitution were not violated by the testimony given by McDonell on these issues. Jacobs' claim that his constitutional rights were violated because the prosecutor sponsored perjured testimony is without merit.
Coaching of Witnesses
Jacobs also asserts that the lead prosecutor improperly coached Hugh Harris' identification testimony at the pre-trial hearing by showing him several photographs of Jacobs a week before the heating, by having Harris sit in the courtroom before the hearing began while Jacobs was also in the courtroom, and by asking during the hearing that Jacobs stand, put on a hat, and open his shirt to reveal his shoulders before Harris identified him. This Court notes that Jacobs has raised, both at the state and federal level, a claim that the pre-trial identification procedures used by the State with respect to Hugh Harris were impermissibly suggestive, rendering the admission of his in-court identification a violation of the federal constitution. This claim was addressed earlier by this Court. Within his thirty-ninth ground for relief, however, Jacobs makes a separate and distinct claim that the actions taken by the lead prosecutor with respect to Harris' pre-trial identification of Jacobs as the assailant was prosecutorial misconduct.
At the pre-trial identification hearing, Harris testified that he had been sitting in the courtroom before the hearing began and he was sworn in as a witness, and he had seen Jacobs enter and sit down, but Jacobs was not facing him, and he therefore could not be sure that Jacobs was the man who killed his son. (Pre-trial hearing at 212-3). Furthermore, during Harris' testimony during the hearing, the prosecutor asked that the trial court have Jacobs stand, put on a hat, and unbutton his shirt to reveal his upper torso. After defense counsel objected, the trial court granted the State's request that Jacobs put the panama hat on, but he denied the request that he unbutton his shirt. (PTH at 184). Harris then stood in front of him and, after viewing him at that distance, testified that he was the one whom he saw in his son's bedroom. (PTH at 185-8). Also at this pre-trial hearing, Holly Kuper testified that she had seen several photographs of Jacobs when she was meeting with the prosecutor a few days before the hearing. One of the pictures she recognized because it had been shown to her earlier by the police department when Jacobs' statement was first shown to him. Other pictures were older pictures that were in an open folder on the prosecutor's desk, and they were never discussed. She further testified that she believed that Harris was present at this meeting. (PTH at 176-8). Harris was never questioned about and did not testify about this meeting with the prosecutor.
Jacobs asserts that his Sixth Amendment right to the confrontation of witnesses was violated because defense counsel was unaware of the circumstances surrounding Harris' identification of Jacobs prior to trial, including the facts that Harris was sitting in the courtroom for several minutes in sight of Jacobs before the pre-trial hearing began and that Harris may have been present during a meeting with the lead prosecutor in which several pictures of Jacobs were visible. He also asserts that his execution based upon Harris' identification testimony would be cruel and unusual punishment. And, Jacobs argues that this alleged prosecutorial misconduct violated his due process rights.
Jacobs has failed to establish any separate claim of prosecutorial misconduct with regard to Hugh Harris' in-court identification of Jacobs as the assailant. All of the actions that Jacobs asserts amounted to the coaching of Harris were known to defense counsel during the pre-trial identification hearing and were used by defense counsel to argue that identification should be suppressed. (PTH at 185, 188). The trial court denied defense counsel's motion to suppress. Nevertheless, defense counsel used this information to cross-examine Harris during the trial in an attempt to impeach his identification testimony. (SOF XX:136-185). Jacobs was convicted. (Transcript at 81-2). On direct appeal, the Court of Criminal Appeals determined that the pre-trial identification procedure did not lead to a substantial likelihood of irreparable identification. Jacobs, slip op. at 12-14. This Court has found that this decision was not an unreasonable application of federal law. Supra at 24-9. Accordingly, Jacobs' claim of prosecutorial misconduct because testimony was coached is without merit.
Brady Violation
Finally, Jacobs asserts that the State violated Brady v. Maryland, 373 U.S. 83 (1963), because the prosecutor did not inform defense counsel that Holly Kuper and Hugh Harris had both picked another man by the name of John Muldune out of a photographic lineup on the day of the murder as the man who was in their house both on the day of the murder and the day before.
In Brady v. Maryland, the Supreme Court held that the suppression of favorable evidence to the accused where the evidence is material to either guilt or punishment violates the accused's due process rights. 373 U.S. at 87. Implicit in the requirement of materiality is the concern that the suppressed evidence might have affected the outcome of the trial. United States v. Agurs, 427 U.S. 97, 104 (1976). The Fifth Circuit has further stated that, even if there was a Brady violation, a reversal is not required if the defendant was not prejudiced by the nondisclosure or late disclosure and could prepare his defense in an adequate manner. United States v. Johnston, 127 F.3d 380 (5th Cir. 1997); United States v. Ellender, 947 F.2d 748, 757 (5th Cir. 1991). With this standard in mind, the Court turns to the relevant facts.
At a pre-trial hearing held on April 9, 1997, defense counsel cross-examined Officer John McDonell with respect to several issues. Defense counsel asked McDonell whether the police department had any other suspects in the murder investigation. McDonell testified that when Kuper initially reported an attempted burglary on the day before the murder, the police department initially believed that a man named Pat Kelly might be responsible, as he was a known burglar with a similar physical description. After the murder, the police department also investigated the possibility that a man named John Muldune was involved, as he lived nearby, had been arrested for indecent exposure in the past, and had a beard. At this point in his testimony, McDonell acknowledged that, on either the day of the murder or the day after, both Hugh Harris and Holly Kuper identified a photograph of Muldune out of a photographic line-up as someone who looked similar to the man they had seen in their house, and both initialed the back of this photograph. This photograph was shown to defense counsel at this hearing and placed into evidence at the hearing, along with a photograph of Muldune when he later turned himself into the police, and a police report about Muldune. (SOF III:101-9, 117). When defense counsel complained to the trial judge at that point that the prosecution had not complied with Brady, the prosecutor responded that he had not had the opportunity to turn over all exculpatory material, that the case was only at the pre-trial stage, and that Kuper and Harris would be available for defense counsel to call at the hearing to be questioned about this identification. (SOF III:110-14). Defense counsel later determined that it would not be necessary for Kuper and Harris to be recalled during the pre-trial hearing. (SOF III:202-3). During trial, defense counsel confronted both Harris and Kuper with the fact that they had both initially picked someone other than Jacobs out of a photographic lineup. Both testified that they were shown a photographic lineup of several pictures on the day of the murder, and that, upon request from the police, they both picked out the person who looked the most like the assailant and initialed the back of that picture. (SOF XX:160-5, 196; XXIII:84). They both further testified that they were allowed to look at Muldune in person in March of 1987 and knew at that time that he was not the person they saw at their house. (SOF XX:197-9; XXIII:94). Officer McDonell also testified at trial that Kuper did not make a positive identification of Muldune from the lineup. (SOF XXII:69-70). Officer Williams testified for the defense that he was told by McDonell that the two eyewitnesses positively identified Muldune as the assailant, but that he was not present when the witnesses viewed the lineup. (SOF XXIII: 152-3, 156-7).
Assuming that the fact that defense counsel was not aware until a pre-trial heating that Hugh Harris and Holly Kuper had tentatively picked out another individual from a lineup was in fact a violation of Brady, Jacobs has failed to establish that he was prejudiced by this late disclosure. Defense counsel was able to use this information both during the suppression hearing and at trial, and therefore the late disclosure did not affect the outcome of the trial. Accordingly, Jacobs' Brady claim is without merit. Jacobs' claims of prosecutorial misconduct are both procedurally barred and without merit. It is recommended that his thirty-ninth ground for relief be denied.
J. Sufficiency of Evidence
In his forty-first ground for relief, and this Court's tenth ground, Jacobs asserts that the evidence presented at trial was insufficient to support his conviction for capital murder. Specifically, Jacobs argues that the evidence is insufficient to prove that he was committing or attempting to commit a burglary when he killed the victim.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court enunciated the standard of review when a state prisoner challenges the sufficiency of the evidence in a federal habeas corpus proceeding. The Court defined the issue to be, "whether after 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." Id . at 320. In applying this standard, all of the evidence is to be considered in the light most favorable to the prosecution. Id . The Court went further to state that, "[t]his familiar standard gives full play to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id . Finally, this Court must give great weight to the state courts' determinations that the evidence was sufficient to support the jury's verdict on the first special issue. Parker v. Procunier, 763 F.2d 665 (5th Cir. 1985), cert. denied, 474 U.S. 855, 106 S.Ct. 159 (1985).
On direct appeal, noting that Holly Kuper testified at trial that almost immediately after Conrad was stabbed she noticed that a one-hundred-dollar bill was missing from her purse, that Hugh Harris identified Jacobs at trial as the person in Conrad's bedroom, and that Jacobs possessed several one-hundred-dollar bills when he was arrested shortly after the murder, the Court of Criminal Appeals held that the evidence was sufficient to prove beyond a reasonable doubt both that Jacobs entered the house with an intent to commit theft and that he committed theft. Jacobs, slip op. at 4.
Jacobs was indicted for capital murder as a murder in the course of committing or attempting to commit burglary. (Transcript at 4). Under Texas law at the time of the murder in the instant case, a burglary was defined as the act of entering of a habitation or building, without the consent of the owner, where the person commits or attempts to commit a felony or theft. TEX. PEN. CODE. ANN. § 30.02(a)(3) (Vernon 1974). The jury in Jacobs' case, however, was instructed that, in order for Jacobs to be convicted of capital murder, the evidence must establish beyond a reasonable doubt that Jacobs entered Holly Kuper's house with the intent to commit theft or did commit theft and that, during the commission of this burglary, Jacobs killed Conrad Harris (Transcript at 53). Jacobs argues that the evidence is insufficient to establish that he entered the home with the intent to commit or that he committed theft because there are other ways to explain that Kuper was missing money, including that either a police officer or a family member could have taken Kuper's money. Jacobs further asserts that the fact that Jacobs was recently paid and a check stub was found in his apartment is another explanation for the money found on him.
Jacobs contends that the evidence is legally and factually insufficient to prove that he committed theft while in Holly Kuper's house, apparently referring to, but not citing, the Texas Court of Criminal Appeals' decision in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996), in which that court first examined a criminal conviction for factual sufficiency, a more stringent standard than the standard announced in Jackson v. Virginia. As noted by the Fifth Circuit, however, when reviewing the sufficiency of evidence to support a criminal conviction, a federal habeas court should apply the Jackson standard, even if the state would require a higher standard of proof. Pemberton v. Collins, 991 F.2d 1218, 1224 (5th Cir. 1993).
Under the Jackson standard, however, a federal habeas court may find sufficient evidence to support a conviction even though the facts may also support another reasonable hypothesis consistent with a claim of innocence. Gibson v. Collins, 947 F.2d 780, 783 (5th Cir. 1991). Thus, Holly Kuper's testimony that the items in her purse were scattered on the table and a one-hundred-dollar bill that was there the night before was missing, coupled with Jacobs' fingerprints found at the scene, the several hundred dollars bills found on Jacobs, and the bloody clothes found in Jacobs' apartment is sufficient evidence such that, viewed in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Jacobs committed murder during the course of a burglary during which he committed theft. (SOF XXI:249, 252; XXII:192, 207-13; XXIII:38-42). The state court's determination on this issue was not an unreasonable application of the Jackson standard. Jacobs' forty-first ground for relief is without merit, and it is recommended that it be denied.
K. Competency to be Executed
In his nineteenth, twentieth, and twenty-first grounds for relief, and this Court's eleventh ground, Jacobs contends that he is incompetent to be executed and that the State of Texas does not have an adequate procedure for determining competency. Specifically, in his nineteenth and twentieth grounds for relief, Jacobs asserts that both the experts who examined him during the state habeas process and the state habeas court applied the wrong legal standard in determining that he is competent to be executed and that, under the standard he proposes, he is currently incompetent to be executed. In his twenty-first ground for relief, Jacobs contends that Texas has failed to design an effective procedure for determining competence to be executed as required in Ford v. Wainwright, 477 U.S. 399 (1986).
Standard for Competency to be Executed
In Ford, a plurality of the Supreme Court held both that the Eighth Amendment prohibits the execution of the insane and that the procedure used by the state of Florida to determine's Ford's competence to be executed was constitutionally inadequate. Id . at 409-10, 416. But, Justice Marshall, who wrote the plurality opinion, did not dictate a particular standard for determining whether a person is competent to be executed. In a concurring opinion joined by Justice White, however, Justice Powell stated that the standard he would adopt is one which would require that a criminal defendant who is executed know the fact of his impending execution and the reason for it. Id . at 422. Since Ford was handed down by the Supreme Court, he Fifth Circuit has stated that the plurality opinion in Ford was made a majority by Justice Powell's concurring opinion and has therefore specifically adopted Powell's standard for determining competency to be executed. Barnard v. Collins, 13 F.3d 871, 876 n. 2 (5th Cir. 1994), citing Lowenfield v. Butler, 843 F.2d 183, 187 (5th Cir. 1988).
The state habeas court found that the correct legal standard for determining competency to be executed is the standard outlined by Powell in his concurring opinion in Ford . (SHF #11). The state habeas then concluded that Jacobs was currently competent to be executed under Ford v. Wainwright, because, based on three reports submitted to the court by mental health experts, as well as Jacobs' own testimony at a live hearing, Jacobs understands the nature, pendency, and purpose of his execution. (SHF #23). Jacobs does not dispute that, under the facts presented to the state habeas court, Jacobs understands that he is to be executed and the reason for it. Instead, Jacobs contends that the state habeas court applied the incorrect legal standard to determine competency to be executed when it applied a standard suggested by Justice Powell in his concurring opinion in Ford v. Wainwright . Jacobs asserts that the legal standard that should be used is one proposed by a group of psychiatrists called the "MacArthur Structured Assessment of the Competencies of Criminal Defendants." This proposed standard would require that, in order for a petitioner to be judged as competent to be executed, he would, among other things, have to understand the nature and purpose of habeas corpus proceedings, understand information relevant to the proceeding, and be able to communicate that information to his attorneys (Amended Petition at 107-9).
In his initial state application for writ of habeas corpus, Jacobs contended both that he was currently incompetent to be executed and that the state habeas court should conduct a hearing on the issue. (State Writ Application at 13,103). The state habeas court conducted a hearing regarding Jacobs' competency to be executed on February 5, 1997. At the hearing, both the State and Jacobs agreed that, in lieu of live testimony, three reports would be entered into evidence, one each from a psychiatrist and psychologist who were appointed by the court and one from a psychiatrist who was hired by Jacobs' state habeas counsel. In addition, one of the prosecutors representing the State at the hearing questioned Jacobs, and Jacobs stated that he understood that he had been sentenced to die, understood that it was because he had been convicted of capital murder, and understood that his execution date would be set once all of his appeals had ended. (State Habeas Hearing at pp. 6-11). Both Jacobs' federal habeas attorney and a defense investigator, with some support from one of the psychiatrists who examined him at the state habeas level, assert that Jacobs is unable to assist in his defense by providing useful information. Moreover, according to statements given by some family members, Jacobs is prone to create stories about his history that are not true. (Amended Petition at 102-3; Petition Exhibits, vol 1:ex. L, M).
Because the plurality opinion in Ford v. Wainwright did not outline a specific standard for determining whether or not a person is competent to be executed, Jacobs argues that his proposed standard should be the one adopted by this Court and that, under this standard, he is incompetent to be executed because he is unable to assist his habeas counsel in his defense. But, as noted earlier, the Fifth Circuit has specifically adopted the standard outlined by Justice Powell in his concurring opinion in Ford . This Court is not at liberty to adopt a standard different from that adopted by the Fifth Circuit. Accordingly, the state habeas court's conclusion that Jacobs is currently competent to be executed because he understands that he is to be executed and the reason for it is not an unreasonable application of federal law.
State Procedure for Determining Competency
Jacobs further contends in his twenty-first ground for relief that the procedure utilized by the state habeas court in reaching its conclusion that Jacobs is competent to be executed is constitutionally inadequate under Ford because Texas has not responded to the concerns stated by the Supreme Court in Ford regarding procedures used by states to determine competency, because there was no mechanism for determining whether the three experts who examined Jacobs were familiar with the standard outlined by Justice Powell in his concurring opinion in Ford, and because there was no peer review of these experts' findings. (Amended Petition at 110-11).
In his plurality opinion in Ford, Justice Marshall found that Florida's procedure for determining competency to be executed was constitutionally inadequate for several reasons. These reasons were: I) the procedure did not allow material to be submitted on the prisoner's behalf; 2) there was no opportunity for counsel for the condemned to challenge or impeach the state-appointed psychiatrists' opinions; 3) the psychiatric examinations lasted no more than thirty minutes; and 4) most importantly, the final decision regarding competency to be executed was placed wholly within the executive branch because the decision was made by the governor of Florida. 477 U.S. at 413-6. In the concurring opinion, Justices Powell, joined by Justice White, also suggested that a constitutionally acceptable procedure would be one where an impartial officer or board can receive argument and materials from the prisoner's counsel, including expert psychiatric evidence that may differ from the State's own psychiatric examination. Id at 427 .
Since the Supreme Court handed down its decision in Ford, the Fifth Circuit has held that a procedure for determining competency was constitutional where the state habeas court held a hearing in which the petitioner was represented by counsel, was allowed to and did present witnesses, was permitted cross-examination, and a psychiatrist was appointed by the court to examine the petitioner. Granviel v. Lynaugh, 881 F.2d 185, 193 (5th Cir. 1989).
In the case at hand, the state habeas court held a hearing regarding Jacobs' competency to be executed where Jacobs was represented by counsel, before which Jacobs was examined separately by two mental health experts appointed by the court and one hired by state habeas counsel (State Habeas hearing at 2-4). At this hearing, Jacobs was allowed to present evidence and argument on his own behalf. In all three of the reports submitted to the state habeas court, the mental health experts indicated their familiarity with the applicable standard for determining competency (State Habeas Hearing at 16, 17, 20). The state habeas court then concluded that Jacobs was competent to be executed and this conclusion was adopted by the Court of Criminal Appeals. (SHF #23).
This procedure not only passed constitutional muster according to Fifth Circuit precedent, but it addressed all of the concerns voiced by the various justices of the Supreme Court that the decision be made by a neutral body, that Jacobs be allowed to present evidence, that Jacobs be examined throughly by mental health experts, and that the decision not be solely made by the executive branch of the state government. Notwithstanding Jacobs contention that there should have been a peer review of the experts' findings, the procedure afforded Jacobs for determining his competency was constitutionally adequate. Because Jacobs is currently competent to be executed and because the state procedure used to determine his competency was constitutionally adequate, Jacobs's nineteenth, twentieth, and twenty-first grounds for relief are without merit, and it is recommended that they be denied.
Jacobs complains that the Texas legislature has not yet established a statute outlining a specific procedure for addressing claims that death row prisoners are incompetent to be executed as it was invited to do by the Court of Criminal Appeals. See Ex Parte Jordan, 758 S.W.2d 250, 253 (Tex.Crim.App. 1988). But, in fact, subsequent to Jacobs filing his pleadings in this case, the Texas Legislature enacted Article 46.04 of the Texas Code of Criminal Procedure, which is a statute outlining a specific procedure to be followed when a prisoner makes such a claim. See TEX. CODE CRIM. PROC. ANN. art. 46.04 (Vernon 1999). This procedure has also recently been held to be constitutionally valid by the Fifth Circuit. Caldwell v. Johnson, 226 F.3d 367, 373 (5th Cir.), cert. denied, 530 U.S. 1298 (2000). Presumably, this procedure would be available to Jacobs in the future if he meets its requirement that he make a substantial showing of incompetence.
RECOMMENDATION
The state court adjudication on the merits neither resulted in a decision that was contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor 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. Jacobs' petition for a writ of habeas corpus should be DENIED.