Opinion
Civil No. SA-03-CA-1084-XR.
August 16, 2005
MEMORANDUM OPINION AND ORDER DENYING RELIEF
Clifford Allan Kimmel files this federal habeas corpus action pursuant to 28 U.S.C. section 2254 challenging his February 2000, Bexar County convictions on multiple counts of capital murder and sentence of death. For the reasons set forth at length below, Petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability.
I. Statement of the Case
A. The Crime and Aftermath
There is no genuine dispute as to the operative facts of Petitioner's offense. Petitioner signed a detailed confession within days of his arrest. According to petitioner's written confession, he and Derrick Murphy decided to burglarize the apartment of their acquaintance, Rachel White. On the evening of April 9, 1999, they went to White's apartment complex and waited four-to-five hours until several persons left White's apartment. Petitioner then approached the apartment and gained access by claiming to need to use the telephone. Murphy then entered the apartment and pointed a gun at White and her two remaining guests, Susan Halverstadt and Brett Roe. After securing all three victims' hands with rope, Murphy took White into the bathroom, where he demanded that she tell him where she kept her money. When White resisted, Murphy injected her in the arm with a syringe containing cleaning fluid. Murphy placed a pillow against White's head until she ceased thrashing and then cut White's neck. Petitioner then injected Roe with cleaning fluid. When Roe attempted to run for the front door, Petitioner and Murphy tackled him and Petitioner stabbed Roe in the chest and cut Roe's hand during a fight over the knife. Murphy pointed the gun at Roe but Petitioner told him it would make too much noise. Murphy then took the knife from Petitioner, cut Roe's throat, and stabbed Roe multiple times while Petitioner held Roe's legs. Murphy then killed Halverstadt. Petitioner and Murphy carried White from the bathroom into the bedroom, where Murphy sat on her and stabbed her in the chest and throat. Murphy unhooked and took White's stereo and video cassette recorder. Petitioner and Murphy also took White's purse, Roe's wallet, a wooden jewelry box, a bong, a silver letter opener, and a collection of CD's. They subsequently sold much of the stolen property and used White's credit card at gasoline stations and a hotel. It is undisputed that all three victims died as a result of the injuries inflicted upon them that night.
Several copies of Petitioner's inculpatory, handwritten statement given May 20, 1999 appear in the state court records submitted to this Court by Respondent. Two copies of that statement appear in the transcript of pleadings, motions, and other documents filed in Petitioner's trial court proceeding (henceforth "Trial Transcript"), Volume 2 of 4, at pages 254-61 and 272-79, respectively. In addition, Petitioner's handwritten statement given May 20, 1999 was admitted into evidence during Petitioner's trial as State Exhibit no. 70 and appears, along with three, hand-drawn diagrams, in Volume 25 of the verbatim Statement of Facts from Petitioner's trial (henceforth "S.F. Trial") at pages 85-96. This same statement was read into evidence following its admission and appears at S.F. Trial, Volume 21, at pp. 59-73.
S.F. Trial, Volume 21, testimony of Robert Moffitt, at pp. 59-60.
Id., at pp. 60-63.
Id., at p. 63.
Id.
Id., at pp. 63-65.
Id., at p. 65.
Id., at pp. 65-66.
Id., at p. 67.
Id., at pp. 67-68.
Id., at p. 68.
Id.
Id., at pp. 68-69.
Id., at p. 69.
Id., at p. 70.
Id., at pp. 70-71.
Id., at pp. 71-72.
The medical examiner testified, without contradiction, during Petitioner's trial that (1) Rachel White died as a result of multiple stab wounds to her neck and chest, one of which cut through her carotid artery, another of which cut through her larynx, and a third of which penetrated into her left lung; (2) Brett Roe died from multiple stab wounds to his neck, chest, and abdomen, one of which penetrated into his liver, another of which penetrated into a kidney, a third of which perforated the right internal jugular vein, and a fourth of which completely transected the left internal jugular vein; and (3) Susan Halverstadt died as a result of a pair of incised wounds to her neck, one of which penetrated and cut the carotid artery, trachea, and internal jugular vein. S.F. Trial, Volume 20, testimony of Randall Frost, at pp. 71-122. Written reports from all three autopsies were admitted into evidence as State Exhibit nos. 55-57 and appear in S.F. Trial, Volume 25, at pp. 36-65.
On May 18, 1999, Petitioner was arrested on a parole revocation warrant and gave a written statement to police in which he denied any personal involvement in the murders. Two days later, however, after Murphy gave police an inculpatory statement, Petitioner executed a very different written statement in which he admitted having participated in the murders and to the other facts outlined above.
S.F. Trial, Volume 21, testimony of Robert Moffitt, at pp. 34-35. Petitioner's first, typewritten, statement given on May 18, 2999, disavowing any personal involvement in the murders was admitted into evidence as State Exhibit no. 69 and appears in S.F. Trial, Volume 25, at pp. 77-84. That typewritten statement was read into the record. S.F. Trial, Volume 21, testimony of Robert Moffitt, at pp. 36-50. An additional copy of Petitioner's typewritten statement of May 18, 1999 appears at Trial Transcript, Volume 2 of 4, at pp. 265-71.
S.F. Trial, Volume 21, testimony of Robert Moffitt, at pp. 51-55.
B. The Indictment
A Bexar County grand jury indicted Petitioner on August 11, 1999 in cause no. 99-CR3-970A on six counts of capital murder.
More specifically, counts one, two, and three of the indictment charged Petitioner with having intentionally killed Rachel White, Susan Halverstadt, and Brett Roe by stabbing and cutting each of them with a knife while in the course of robbing each of these victims. Counts four through six charged Petitioner with having intentionally killed White, Halverstadt, and Roe by cutting and stabbing each of them with a knife all in the same criminal transaction. Trial Transcript, Volume 1 of 4, at pp. 2-4. Additional copies of the indictment against Petitioner appear among the state court records relating to Petitioner's state habeas corpus proceeding, more specifically, in the State Habeas Transcript, at pp. 59-61 and 79-81.
C. The Trial
1. Guilty Plea
On February 14, 2000, Petitioner entered a plea of guilty to the indictment against him.
S.F. Trial, Volume 20, at pp. 8-15.
2. Prosecution Evidence
That same date the punishment phase of Petitioner's capital trial began. In addition to presenting extensive testimony regarding the details of Petitioner's offense, including Petitioner's confession, the prosecution presented evidence showing that (1) Petitioner, Murphy, and two others had participated in the armed robbery of a fast food restaurant in the days immediately before the triple homicide, during which robbery Petitioner held a gun on one employee; (2) while a juvenile, Petitioner was twice arrested in Bexar County and twice received probated sentences for burglary and shoplifting, respectively; (3) while still a juvenile, Petitioner was arrested and adjudicated guilty in Bexar County on a charge of indecency with a child and again received a probated sentence; (4) in February, 1993, no longer a juvenile, Petitioner was arrested for burglary of a habitation in Guadalupe County and received another probated sentence; (5) in July, 1993, a motion to revoke Petitioner's probation was filed because Petitioner had carried a loaded handgun and, days later, Petitioner was arrested for criminal trespass; (6) in August, 1994, Petitioner tested positive for marijuana use and a motion to revoke his probation was filed based on that fact, as well as Petitioner's many failures to report and fulfill other requirements of his probation; (7) in March, 1995, Petitioner attempted to break into his parents' home and was later arrested for absconding from probation; (8) in August, 1995, Petitioner was placed in the Bastrop County Restitution Center but absconded from that facility in July, 1996, after officials at that facility found evidence indicating Petitioner had committed a burglary; (9) in November, 1996, another motion to revoke Petitioner's probation was filed and, the following month, Petitioner was arrested; (10) in April, 1997, Petitioner's probation was revoked and he was sentenced to serve a six-year term of imprisonment; and (11) in November, 1998, Petitioner was released on parole but absconded from a halfway house less than two months later, the day after he gave what later proved to be a "dirty" urinalysis sample. A Bexar County Adult Detention Center officer testified that, on September 8, 1999, while awaiting trial for capital murder, Petitioner threatened to assault the officer after contraband was discovered in Petitioner's cell.
Petitioner alluded to this robbery in his handwritten confession given May 20, 1999. S.F. Trial, Volume 21, testimony of Robert Moffitt, at pp. 62-63. The two victims of that armed robbery also testified in a manner consistent with Petitioner's confession, i.e., that Petitioner held a gun on one of them while Derrick Murphy threatened the other employee with a knife. S.F. Trial, Volume 22, testimony of Christie Casey, at pp. 22-35; Volume 23, testimony of Joy Lineberry, at pp. 117-25.
A Bexar County Juvenile Probation Officer testified regarding Petitioner's arrests and probated sentences for burglary and shoplifting. S.F. Trial, Volume 21, testimony of Bob Sliz, at pp. 138-43. The same witness also testified that Petitioner had a series of behavioral problems at school that led to Petitioner's transfer to several different campuses and, eventually, to Petitioner's placement in an alternative educational setting. Id., at pp. 145-47.
Id., at pp. 148-50.
Another Bexar County Juvenile Probation officer testified that Petitioner's Guadalupe County arrest came less than a month before Petitioner was set to complete his Bexar County probated sentences. S.F. Trial, Volume 21, testimony of William Hall, at p. 178. This same witness also testified regarding Petitioner's continued difficulties at school and Petitioner's confrontational relationship with his father. Id., at pp. 174-76.
A Guadalupe County Adult Probation Officer testified that Petitioner presented many problems during his supervision, including multiple violations of the conditions of his probation in 1993. S.F. Trial, Volume 21, testimony of Robert Thomas, at pp. 189-91.
S.F. Trial, Volume 21, testimony of Robert Thomas, at p. 191.
Id., at p. 192.
Id., at pp. 192-93. A Bastrop County Probation Officer also testified that Petitioner (1) stayed at the residential facility in that County from November, 1995 through July, 1996, during which time Petitioner "constantly" violated the rules but was always apologetic when caught doing so, (2) refused to work and had an alcohol violation, (3) tore up another resident's pants, (4) stole keys from the facility, and (5) absconded from that facility even though Petitioner had been warned that such conduct was a felony offense. S.F. Trial, Volume 22, testimony of Pat Moses, at pp. 4-13.
S.F. Trial, Volume 21, testimony of Robert Thomas, at p. 194.
Id., at p. 194.
A Texas parole officer testified regarding (1) Petitioner's January 15, 1999 flight from the Central Texas ISF Facility in San Antonio, where Petitioner had been staying for less than two months following his release on parole, (2) Petitioner's positive urinalysis test for cocaine and marijuana in January 14, 1999, and (3) Petitioner's May, 1999 arrest on a parole revocation warrant. S.F. Trial, Volume 22, testimony of Rachel Davila, at pp. 17-20. The same witness testified that Petitioner never requested help with substance abuse problems during his stay at the halfway house. Id., at p. 22.
S.F. Trial, Volume 22, testimony of Greg Mendez, at pp. 39-42. More specifically, the officer testified that, after he discovered the plastic shell from a ball point pen hidden in the drinking spout of Petitioner's cell, Petitioner angrily demanded a grievance form from the officer and, when the officer responded that he did not have any such forms at that time, Petitioner responded "I'll kick your fucking Spic ass if you step into the day room." Id.
3. Defense Evidence
Petitioner's trial counsel presented witnesses who testified that (1) Petitioner had a long-term drug problem and was remorseful for his offense; (2) while awaiting trial for capital murder, Petitioner had led inmate Bible studies, helped his cell mate become a minister, and expressed a desire to be forgiven; and (3) Petitioner engaged in "good conduct" during his previous, 32-month, period of incarceration in prison. The defense counsel also presented an independent psychological assessment which indicated that Petitioner did not pose a risk of future dangerousness in a prison setting, where Petitioner would not have access to the methamphetamine which Petitioner had abused in the days leading up to his offense.
A long-time family friend who worked in prison evangelism testified that he had visited with Petitioner since his arrest for capital murder and that Petitioner was very sorrowful, remorseful, and repentant. S.F. Trial, Volume 22, testimony of Robert A. Mondy, at pp. 69-70. This same witness testified that Petitioner had "battled" drug addiction since his teens but admitted that he was unaware of Petitioner's extensive criminal history. Id., at pp. 71-73.
The mother of Petitioner's child testified that (1) Petitioner is a different person when he was not on drugs and is very supportive of her and their child, (2) Petitioner lived on the streets at times during his teen years because of problems at home, (3) on occasions, Petitioner's father kicked Petitioner out of the house, (4) at that time, the people Petitioner hung around with got Petitioner involved in drugs, (5) Petitioner never did drugs in front of her or their child, (6) she still loves Petitioner but, nonetheless, she took legal action to terminate Petitioner's parental right to their child, and (7) Petitioner encouraged her younger brother to avoid drugs. S.F. Trial, Volume 22, testimony of Irma Williamson, at pp. 74-93.
Petitioner's mother testified that (1) Petitioner was the youngest of four children, (2) Petitioner was placed in special education classes because he repeatedly acted up in class, (3) his placement in special education caused Petitioner to lose self-esteem, (4) his parents attempted to help Petitioner by getting tutors but their efforts did not help, (5) Petitioner ran away from home because his father was a very strict disciplinarian, (6) as Petitioner got into drugs, his clothing and hair style changed and he began to take items from the family home and sell them to support his drug habit, and (7) Petitioner told her he was very sorry for what had happened to his friends the night of the murders. S.F. Trial, Volume 23, testimony of Artrecia Kimmel, at pp. 100-12.
Petitioner's former cell mate at the Bexar County Adult Detention Center testified that (1) the guard whom Petitioner allegedly threatened had taunted Petitioner before that incident and frequently lied, (2) the pen casing found in the water spout of their cell was there prior to the time he was assigned to that cell, (3) Petitioner never directed any racial slur toward the officer in question, (4) Petitioner helped him become a minister, (5) Petitioner was very remorseful for his offense, (6) Petitioner was in a lot of pain and wanted to be forgiven, (7) Petitioner never fought other inmates and had encouraged other inmates to "talk out" conflict rather than fight, and (8) since his release, the Petitioner had written him letters encouraging him to stay out of jail. S.F. Trial, Volume 22, testimony of Adolph Trujillo, at pp. 53-67.
More specifically, a forensic psychiatrist who evaluated Petitioner in December, 1999 and reviewed Petitioner's school, hospital, parole, and jail records testified that (1) Petitioner's family situation deteriorated when Petitioner reached his teens and began abusing drugs, (2) Petitioner has attention deficient disorder, a learning disorder that does not affect intelligence but which does impair Petitioner's ability to concentrate, (3) Petitioner tested in the upper normal range of intelligence, (4) at the time Petitioner was placed in a special education program, that program was not designed to address the learning disorder from which Petitioner suffers, (5) at that time, Petitioner began florid substance abuse, which altered his personality, (6) Petitioner's criminal history also corresponds with Petitioner's drug use and is consistent with the typical pattern of behavior by drug abusers, (7) Petitioner is neither schizophrenic nor bipolar but does suffer from emotional factors which render him impulsive, focused on self-gratification, and difficult to get along with, (8) Petitioner's drug of choice is methamphetamine, a stimulant which has a euphoric effect and tends to make users paranoid, delusional, and aggressive to the point of being homicidal, (9) Petitioner has also at times demonstrated depression and suicidal ideation, consistent with the periods during which Petitioner was coming off of a methamphetamine "high," (10) methamphetamine use can turn a non-violent individual into a very violent person, (11) Petitioner adjusted well to an institutional setting during his previous incarceration, (12) a history of escalating violence is the best predictor of future violence, and (13) there is no indication that Petitioner bears any racially motivated animus toward any person or group. S.F. Trial, Volume 23, testimony of Dr. Edward Gripon, at pp. 18-64 79-100.
On cross-examination, Dr. Gripon admitted that Petitioner's mental health records suggested that (1) Petitioner blames others for not helping him, (2) Petitioner enjoys generating crises around himself, (3) Petitioner's action in injecting cleanser into his victims the night of the murder demonstrated a lack of social conscience, and (4) Petitioner was not on methamphetamine when he allegedly threatened a jail guard. Id., at pp. 82-86 100.
4. The Verdicts
On February 18, 2000, the jury returned its verdict, separately finding with regard to each of the three murder victims that (1) beyond a reasonable doubt, there was a probability Petitioner would commit criminal acts of violence that would constitute a continuing threat to society, (2) beyond a reasonable doubt, the Petitioner either actually caused the death of the decedent or, if he did not cause the death of the decedent, Petitioner intended to kill the deceased or another or anticipated that a human life would be taken, and (3) taking into consideration all of the evidence, including the circumstances of the offense, the Petitioner's character and background, and the Petitioner's personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence.
Trial Transcript, Volume 4 of 4, at pp. 624-31.
D. Direct Appeal
On April 6, 2001, Petitioner filed his appellant's brief challenging both his conviction and sentence of death. In an unpublished opinion issued November 7, 2001, the Texas Court of Criminal Appeals affirmed Petitioner's conviction and sentence. Petitioner did not thereafter file a petition for certiorari seeking further review of his conviction and sentence by the United States Supreme Court.
As points of error on direct appeal, Petitioner argued that (1) the trial court had erroneously failed to admonish Petitioner at the guilty plea hearing that a plea of guilty waived all non-jurisdictional errors, (2) the trial court erred in failing to give a "mitigating" instruction on temporary insanity arising from voluntary intoxication, (3) the trial court erred in failing to suppress Petitioner's inculpatory custodial statement on the ground that Petitioner had previously invoked his right to counsel, and (4) the death sentence violates the Eighth Amendment.
Kimmel v. State, No. 73,786 (Tex.Crim.App. November 7, 2001).
E. State Habeas Corpus Proceeding
On November 15, 2001, Petitioner filed an application for state habeas corpus relief. On May 20, 2003, the state trial court held an evidentiary hearing on Petitioner's claims for state habeas relief and heard testimony from Petitioner's former lead trial counsel and the lead prosecuting attorney from Petitioner's trial. In an Order issued June 27, 2003, the state trial court issued its findings of fact, conclusions of law, and recommendation that Petitioner's state habeas corpus application be denied. In an unpublished, per curiam Order issued October 15, 2003, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied state habeas relief.
State Habeas Transcript, at pp. 1-45. As grounds for state habeas relief, Petitioner argued that (1) the method used by Bexar County (random selection from voter registration lists) to select Petitioner's grand jurors violated Petitioner's Sixth Amendment right to a grand jury selected from a fair cross-section of the community, (2) the prosecution withheld evidence in violation of Brady v. Maryland by failing to turn over expert opinion testimony regarding Petitioner's tattoos, (3) the prosecution knowingly elicited perjured testimony regarding Petitioner's tattoos, (4) Petitioner's confession was rendered involuntary by virtue of prescription medications Petitioner was taking on the date he gave that statement, (5) the "aggravating factors" employed in the Texas capital sentencing scheme fail to adequately channel the sentencing jury's discretion and thereby violate the Eighth Amendment, and (6) Article 37.071 of the Texas Code of Criminal procedure forces capital sentencing juries to continue deliberating after individual jurors have determined to vote in a manner favorable to the defendant.
The Statement of Facts from the May 20, 2002 evidentiary hearing held in Petitioner's state habeas corpus proceeding appears among the state court records as S.F. State Habeas Hearing, Volume 2 of 3.
State Habeas Transcript, at pp. 152-82.
Ex parte Clifford Allan Kimmel, App. No. 57,028-01 (Tex.Crim.App. October 15, 2003).
F. Federal Proceedings
On September 15, 2004, Petitioner filed his federal habeas corpus petition herein, urging six grounds for relief. On February 10, 2005, Respondent filed an answer and motion for summary judgment. On May 17, 2005, Petitioner filed his response thereto and requested further factual development.
Docket entry no. 6.
Docket entry nos. 13 14.
Docket entry nos. 17 18.
II. AEDPA Standard of Review
Because Petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court's review of Petitioner's claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, this Court cannot grant Petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Williams v. Taylor, 529 U.S. 362, 404-05 (2000); and 28 U.S.C. § 2254(d).The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ("A state court's decision is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"). A state court's failure to cite governing Supreme Court authority does not, per se establish that the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents; `so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Id. at 16.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Id. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner."). Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, ___, 124 S. Ct. 2140, 2147, 158 L. Ed.2d 938 (2004) ("We look for `the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings, requiring that a Petitioner challenging state court factual findings establish by clear and convincing evidence that the state court's findings were erroneous. See Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004), cert. denied, ___ U.S. ___, 125 S. Ct. 421 (2004) ("The AEDPA requires that we presume correct the state court's findings of fact unless the petitioner `rebuts the presumption of correctness by clear and convincing evidence.'"); Pondexter v. Dretke, 346 F.3d 142, 146 149 (5th Cir. 2003), cert. denied, 541 U.S. 1045 (2004) (pursuant to § 2254(e)(1), state court findings of fact are presumed correct and the petitioner has the burden of rebutting that presumption by clear and convincing evidence); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003), cert. denied, 540 U.S. 1163 (2004); 28 U.S.C. § 2254(e)(1).
Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See Pondexter v. Dretke, 346 F.3d at 148 (the precise question before a federal habeas court in reviewing a state court's rejection on the merits of an ineffective assistance claim is whether the state court's ultimate conclusion was objectively reasonable); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir. 2003) (a federal habeas court reviews only a state court's decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) ( en banc), cert. denied, 537 U.S. 1104 (2003) (a federal court is authorized by § 2254(d) to review only a state court's decision and not the written opinion explaining that decision).
III. Challenge to Grand Jury
A. The Claim
Petitioner argues that Bexar County's random selection of grand jurors from voter registration lists violates his Sixth Amendment right to a grand jury selected from a fair cross-section of the community because, historically, Hispanics have been under-represented on Bexar County grand juries in relation to their presence in Bexar County's general population.
Petitioner's Petition for writ of habeas corpus, filed September 15, 2004, docket entry no. 6 (henceforth "Petition"), at pp. 9-19.
B. Procedural Default
The principles of procedural default applicable to this cause are well-settled. See Arroyo v. Dretke, 362 F. Supp.2d 859, 869-70 (W.D. Tex. 2005) (discussing Supreme Court precedent outlining the fundamental principles of procedural default applicable in habeas corpus proceedings). Simply put, procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule and that procedural rule provides an independent and adequate ground for the dismissal or (2) the petitioner fails to exhaust all available state remedies and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). However, such procedural defaults only bar federal habeas review when the state procedural rule that forms the basis for the procedural default was "firmly established and regularly followed" by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424 (1991).
For two separate, yet equally compelling, reasons, Petitioner has procedurally defaulted on his first claim for federal habeas corpus relief. First, as noted by the state habeas court, Petitioner failed to raise his challenge to the composition of his grand jury through a timely pretrial motion to quash the indictment against him. The Texas Court of Criminal Appeals has regularly applied the principle that a criminal defendant challenging the composition of his grand jury must do so through a pretrial motion. See Muniz v. State, 672 S.W.2d 804, 807-08 (Tex.Crim.App. 1984) (pursuant to Article 19.27 of the Texas Code of Criminal Procedure, a grand jury array must be challenged at the first opportunity, which ordinarily means when the grand jury is impaneled, but, if that is impossible, the grand jury array may be attacked in a motion to quash the indictment made before trial commences); Muniz v. State, 573 S.W.2d 792, 796 (Tex.Crim.App. 1978), cert. denied, 442 U.S. 924 (1979) (when a challenge to the grand jury upon impaneling is not possible, the array can be attacked in a motion to quash the indictment before trial commences and that if the defendant had an opportunity to challenge the array when it was impaneled but did not do so, he may not challenge it at a later date). The Fifth Circuit has recognized as firmly established principles of Texas law the rules that (1) a defendant must raise a challenge to the composition of the grand jury at the earliest point possible and (2) when it is not possible to do so sooner, such a challenge may be raised before trial by a motion to quash the indictment. Ratcliff v. Estelle, 597 F.2d 474, 476 (5th Cir. 1979), cert. denied, 444 U.S. 868 (1979). Because Petitioner failed to timely challenge the composition of his grand jury through a pretrial motion, he procedurally defaulted on that complaint for federal habeas purposes.
State Habeas Transcript, at p. 167.
Second, also as noted by the state habeas court, Petitioner failed to present any challenge to the composition of his grand jury via direct appeal. Both the Fifth Circuit and this Court have held that this principle of state procedural default was "firmly established" long before the date Petitioner filed his appellant's brief. See Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004), cert. denied, 541 U.S. 1087 (2004); Arroyo v. Dretke, 362 F. Supp.2d at 870. By failing to raise his challenge to the composition of his grand jury on direct appeal, Petitioner procedurally defaulted on same a second time.
State Habeas Transcript, at p. 167.
The fact the state habeas court went on to hold, in the alternative, that Petitioner's fair cross-section claim was without merit does not foreclose this court's conclusion that Petitioner procedurally defaulted on that claim. See Soria v. Johnson, 207 F.3d 232, 249 (5th Cir. 2000), cert. denied, 530 U.S. 1286 (2000) (a state habeas court's finding of procedural default on a jury composition claim, based on the petitioner's failure to raise that claim on direct appeal, foreclosed federal habeas review of that claim even though the state habeas court alternatively rejected the petitioner's federal claim on the merits).
C. No Merits
Likewise, for two separate, yet equally valid, reasons, there is no arguable merit to Petitioner's Sixth Amendment fair cross-section complaint. First, as explained above, the AEDPA permits this Court to grant federal habeas corpus relief only when a state court ruling is inconsistent with "clearly established" federal law as set forth in the opinions of the United States Supreme Court. This Court has noted that, while the Fifth Circuit has on occasion applied the Sixth Amendment's fair cross-section requirement to the selection of state grand jurors, the Supreme Court has never expressly or implicitly done so. See Sosa v. Dretke, 2004 WL 1124949, *32 (W.D. Tex. 2004). Thus, the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989), forecloses extension of the fair cross-section doctrine in such manner as to set aside an otherwise final state criminal conviction on the ground that the defendant's grand jury was improperly constituted in violation of the Sixth Amendment's fair cross-section requirement. See Stringer v. Black, 503 U.S. 222, 227-29 (1992) (the Teague non-retroactivity doctrine applies equally to a novel application of an old rule).
Alternatively, the state habeas court's rejection on the merits of Petitioner's fair cross-section claim was fully consistent with clearly established federal law. "In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364 (1979). Petitioner presented the state habeas court with absolutely no evidence establishing either (1) the precise ethnic composition of Bexar County's registered voters or (2) that there was any difference between the ethnic composition of Bexar County's registered voters and the ethnic composition of Bexar County's adult population generally.
The Fifth Circuit has consistently rejected similarly conclusory complaints arising from alleged under-representation of various minority groups on voter registration lists used to select grand and petit jury venires. See, e.g., Soria v. Johnson, 207 F.3d at 249 (the fact that an identifiable minority group votes in a proportion lower than the rest of the population and is therefore under-represented on jury panels presents no constitutional issue); United States v. Brummitt, 665 F.2d 521, 527 (5th Cir. 1981), cert. denied, 456 U.S. 977 (1982); United States v. Goff, 509 F.2d 825, 826-27 (5th Cir. 1975), cert. denied, 423 U.S. 857 (1975) (upholding the use of voter registration lists to select jurors).
D. Conclusion
Petitioner procedurally defaulted on his Sixth Amendment "fair cross-section" claim by failing to raise same via a timely pretrial motion and by failing to preserve that complaint as a point of error on direct appeal. Likewise, the Texas Court of Criminal Appeals' alternative rejection on the merits of Petitioner's fair cross-section claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
IV. Challenges to Tattoo Evidence
A. The Claims
In a pair of factually-related complaints, Petitioner argues that (1) the prosecution withheld evidence regarding the meaning of Petitioner's tattoos in violation of Brady v. Maryland and (2) the prosecution knowingly elicited "perjured" testimony from a defense expert witness when the prosecutor improperly suggested during cross-examination that one of Petitioner's tattoos symbolized "anarchy."
Petition, at pp. 19-35.
B. State Court Disposition
At trial, after Petitioner elicited extensive opinion testimony from the defense's mental health expert, Dr. Edward Gripon, regarding Petitioner's low propensity for future violence, the prosecution approached the bench and apparently sought permission to explore the meaning of Petitioner's numerous tattoos with Dr. Gripon. The trial court held a brief hearing outside the jury's presence and ultimately ruled the prosecution could go forward with its cross-examination on those subjects. After the jury returned, the following exchange occurred:
S.F. Trial, Volume 23, testimony of Edward Gripon, at pp. 69-79.
Q I think when we left off, Doctor, you were saying that anarchy basically is the absence of rules and order?
A Yes.
Q Did you have an opportunity to observe the tattoos — some tattoos on the defendant's body?
A I did.
Q I'm going to hand you what have been marked State's Exhibits 93, 94, 95 and 96, and, ask you to take a look at those.
A Okay.
Q Do those photographs fairly and accurately depict the tattoos that you saw on the defendant?
A They do.
MS. VASQUEZ-GARDNER: At this time I would like to offer into evidence State's Exhibits 93 through 96, and tender to defense counsel.
MR. HANCOCK: No objections, Your Honor.
THE COURT: All right. Received.
(Evidence admitted as State's Exhibits Nos. 93 through 96 were offered and admitted in evidence.)
BY MS. VASQUEZ-GARDNER:
Q Doctor, sometimes what you might consider in forming an opinion could very well be tattoos. Is that true?
A Well, you would have to be very careful trying to interpret tattoos alone, separate and by themselves. But if a person has certain tattoos, then you would look at that and see if that had any implication or meaning that was relevant, yes.
Q Would you agree that living in a prison society means abiding by the rules and laws that are set within that society?
A Certainly. The prisons are very specific microcosm. It's a society in its own setting meaning it has very different rules than we have in the free world. But those rules are very structures, very set and they must be religiously followed actually if you want to do well in that setting.
Q And. Doctor, isn't it true that the defendant has a couple of tattoos that indicate anarchy?
A Yes. That's what I think is supposed to be the meaning of them, yes.
Q And that under one of the tattoos it actually even says "chaos" on it?
A It does.
Q Doctor, in part of the facts and data underlying your opinion, were you aware that in September of '99, he told a prison guard, and I'm quoting, I'll kick your fucking Spic ass if you go into the day room, unquote?
A Yes. I was provided that — a written statement that was done in regard to that at the jail, in which there was — apparently he made some request to fill out some kind of a grievance or something and the person said I don't have time or the form or something, and then that was his apparent retort. At least that's what was reported.
Q And also in addition to those anarchist tattoos, does he also have a tattoo on one forearm that says "White" and on the other forearm that says "Pride"?
A He does.
Q Could those be — I'm not saying are they, could those be indicative of somebody — I'll strike that. Strike that and move on.
The anarchist tattoos, could that be interpreted by somebody, either other inmates, the Jury or members of the community, as somebody that does not want to abide by laws and rules of society?
A That would be one thing you could interpret that as. I mean, one would have to be very careful with interpreting that, because tattoos frequently are an expression of extremism of one type or another, not necessarily a clear indicator of what a person believes, but that's a possibility.
S.F. Trial, Volume 23, testimony of Edward Gripon, at pp. 79-82.
In the course of his state habeas corpus proceeding, Petitioner argued that the prosecution had elicited "perjured" testimony from Dr. Gripon regarding the meaning of Petitioner's tattoos and had withheld favorable evidence, in the form of the opinions of various persons with whom the prosecution had consulted regarding the meaning of Petitioner's tattoos.
During Petitioner's state habeas corpus hearing, Petitioner's former lead prosecutor testified that (1) the prosecution filed a motion in January, 2000 to have petitioner's tattoos photographed, (2) she consulted with a pair of individuals (Royce Smithey and Bill Cheatham) allegedly knowledgeable about prison tattoos, (3) while neither of these two persons could offer her any definitive information regarding the meaning of a cryptic pair of petitioner's tattoos consisting of a capital "A" surrounded by a circle, they both suggested that the symbols might be references to the white supremacist groups Aryan Brotherhood or Aryan Circle, (4) she was unable to locate any records or other evidence suggesting that petitioner had ever been a member of either of those prison gangs, (5) she then performed additional independent research on the Internet in an attempt to decipher the meaning of the cryptic tattoos in question and discovered a web site identifying a capital "A" surrounded by a circle as an "Anarchy Sign," (6) she also consulted with a third person (Rocky Dyer) who gave her generic information regarding the meaning of prison tattoos but was unable to furnish her with any definitive information regarding the meaning of the specific tattoos in question, (7) the presence of the word "chaos" in close proximity to one of the cryptic A-circle tattoos, the general information regarding tattoos conveyed to her by the persons with whom she had consulted, and her own Internet research led her to conclude the symbols might be references to "anarchy," and (8) based on her research and "gut instinct," she suggested during her cross-examination of the prosecution's mental health expert that petitioner's tattoos might suggest an anti-social and anti-governmental bias on petitioner's part, as indicated by a desire for "chaos" and "anarchy." In addition to the prosecutor's testimony, petitioner also presented the state habeas court with a photocopy of information regarding the "Anarchy Sign" the prosecution had downloaded from the Internet, as well as the prosecutor's notes from her discussions with Messrs. Cheatham, Smithey, and Dyer.
S.F. State Habeas Hearing, Volume 2 of 3, testimony of Juanita Vasquez-Gardner, at pp. 27-50.
These documents were admitted into evidence during Petitioner's state habeas corpus hearing as State Exhibits 4-7 and are found at the end of S.F. State Habeas Hearing, Volume 3 of 3.
The state habeas court found that (1) Cheatham and Smithey were both unable to furnish the prosecution with any concrete information regarding the A-circle symbols but suggested that the symbols might be related to the Aryan Circle, a white supremacist organization that posed a security threat in prison, (2) Dyer gave the prosecutor only general information as to what the symbols might mean, (3) based on her Internet research and the general information she obtained from Dyer, the prosecutor theorized that the A-circle symbols might be related to "anarchy," (4) the prosecutor did not tender to defense counsel either her notes from her conversations with these three individuals nor copies of the information she found on the Internet, (5) based on her research and presence of the word "chaos" tattooed near one of the A-circle symbols, the prosecutor believed Petitioner's tattoos were relevant to the issue of whether petitioner posed a risk of future dangerousness, (6) all the information the prosecutor gleaned from the Internet was readily accessible to the public, and (7) there was ample evidence from Petitioner's tattoos to support the prosecution's theory regarding their meaning was related to anarchy.
State Habeas Transcript, at pp. 169-73.
The state habeas court ultimately concluded that the prosecution (1) withheld no evidence that was favorable or material to Petitioner and (2) elicited no perjured testimony from Dr. Gripon because the prosecution's cross-examination of that witness was based on a reasonable, good faith, theory as to the meaning of Petitioner's tattoos.
State Habeas Transcript, at pp. 174-76.
C. Brady Claim
1. Clearly Established Federal Law
The principles governing Brady claims are well-settled. "`[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). The Supreme Court has consistently held that the prosecution's duty to disclose evidence material to either guilt or punishment, i.e., the rule announced in Brady v. Maryland, applies even when there has been no request by the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999); United States v. Agurs, 427 U.S. 97, 107 (1976). This duty applies to impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 685 (1985).
Under clearly established Supreme Court precedent, there are three elements to a Brady claim: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be "material," i.e., prejudice must have ensued from its non-disclosure. Banks v. Dretke, 540 U.S. at 691. Evidence is "material" under Brady where there exists a "reasonable probability" that had the evidence been disclosed the result at trial would have been different. Banks v. Dretke, 540 U.S. at 698.
2. AEDPA Review
The state habeas court reasonably concluded that the prosecution did not withhold or suppress the information regarding the "Anarchy Sign" which the prosecution found on the Internet. Information which is already in the public domain cannot, by definition, be withheld or suppressed for Brady purposes. It is well-settled in this Circuit that evidence is not "suppressed" within the meaning of Brady if the defendant either knew, should have known, or with the exercise of due diligence could have learned, of the essential facts permitting him to take advantage of the exculpatory evidence. See, e.g., Bigby v. Dretke, 402 F.3d 551, 574-75 (5th Cir. 2005) ( cert. pending) (prosecutors had no duty under Brady to furnish petitioner's trial counsel with copies of jail medical records showing the numerous psychotropic medications petitioner was taking while incarcerated awaiting trial because those records could have been obtained by petitioner's counsel through the exercise of reasonable diligence); Kuntzer v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002), cert. denied, 536 U.S. 978 (2002) ( Brady does not obligate the State to furnish a defendant with exculpatory evidence that is fully available to a defendant through the exercise of reasonable diligence).
Likewise, the state habeas court reasonably concluded that neither the inconclusive opinions offered by Cheatham, Smithey, or Dyer, nor the prosecutor's notes regarding her conversations with these individuals, were "favorable" to petitioner within the meaning of Brady. The fact that none of these three persons could identify the meaning of the A-circle symbols among Petitioner's tattoos was neither "exculpatory" nor "mitigating" within even the broadest sense of those two terms. Likewise, because none of these three individuals could offer any opinion testimony regarding the precise meaning of the Petitioner's tattoos, none of them were in a position to offer any testimony at Petitioner's trial which could have impeached Dr. Gripon's testimony that he believed the Petitioner's tattoos were intended to convey a meaning consistent with the prosecutor's allusions to "anarchy."
Finally, the state habeas court reasonably concluded that none of the allegedly withheld evidence regarding the meaning of Petitioner's tattoos was "material" within the meaning of Brady. There is no reasonable probability that, but for the prosecution's failure to present Petitioner's trial counsel with the prosecutor's notes from her conversations with Cheatham, Smithey, or Dyer, or the prosecutor's Internet downloads regarding the "Anarchy Sign," the outcome of Petitioner's trial would have been any different. Petitioner presented the state habeas court with no evidence establishing that either Smithey, Cheatham, or Dyer could have furnished Petitioner with any helpful testimony at trial. Nor has Petitioner presented any evidence showing that the prosecutor's notes and Internet downloads would have assisted Petitioner's trial counsel in impeaching Dr. Gripon's trial testimony regarding the meaning of Petitioner's tattoos. Petitioner alleges no facts, much less presents any evidence, showing that his tattoos bore any meaning other than the ones suggested by the prosecution which Dr. Gripon agreed were reasonable constructions of same.
Brady does not extend to all information a defendant might deem helpful during pretrial preparations. See United States v. Bagley, 473 U.S. 667, 675 n. 7 (1985) (recognizing that a rule that a prosecutor commits error by any failure to disclose evidence to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor). On the contrary, the rule announced in Brady applies to evidence that is exculpatory, mitigating, or impeaching in character, not to all information known to the prosecution. There is no constitutional right to discovery in a criminal case and Brady did not create one. Gray v. Netherland, 518 U.S. 152, 168 (1996); Weatherford v. Bursey, 429 U.S. 545, 560 (1977). Petitioner has failed to allege any specific facts showing a reasonable probability that, but for the failure of the prosecution to disclose the prosecution's handwritten notes regarding Cheatham, Smithey, and Dyer's lack of knowledge as to the meaning of the Petitioner's tattoos, the outcome of Petitioner's trial would have been different. The same is true for the prosecution's Internet downloads regarding the cryptic A-circle symbols found among Petitioner's tattoos.
Thus, the state habeas court reasonably concluded that Petitioner's Brady claim satisfied none of the three requirements for such a constitutional complaint.
D. Giglio-Napue Claim
1. Clearly Established Federal Law
A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 153-54 (1972); Napue v. Illinois, 360 U.S. 264, 269-70 (1959). To succeed in showing a due process violation from the use of allegedly perjured testimony, a defendant has the burden of establishing that (1) the witness in question actually gave false testimony, (2) the falsity was material in that there was a reasonable likelihood that it affected the judgment of the jury, and (3) the prosecution used the testimony in question knowing that it was false. Giglio v. United States, 405 U.S. at 153-54.
2. AEDPA Review
The uncontested testimony of the lead prosecutor given during Petitioner's state habeas corpus hearing fully supported the state habeas court's determination that the prosecution had a good faith, reasonable basis for inquiring of Dr. Gripon whether any of Petitioner's tattoos could be construed as evidencing sympathy for "anarchy." Petitioner offered the state habeas court no evidence establishing that his tattoos meant anything other than what the prosecutor and Dr. Gripon agreed they could be construed to mean through an objective, rational construction of their meaning. Most significantly, Petitioner offered the state habeas court absolutely no evidence establishing that the prosecutor knew that any of the testimony she elicited from Dr. Gripon regarding Petitioner's tattoos was factually inaccurate. Under such circumstances, the state habeas court reasonably concluded that Petitioner had failed to demonstrate a knowing use of perjured testimony. Having independently reviewed the record from Petitioner's trial and state habeas corpus proceeding, this Court concludes there is no evidence in the record currently before this Court suggesting that any of Dr. Gripon's trial testimony regarding the meaning of Petitioner's tattoos was factually inaccurate. Absent some showing that "false" testimony was elicited from Dr. Gripon during Petitioner's trial, Petitioner's Giglio-Napue claim is frivolous.
E. Conclusion
The Texas Court of Criminal Appeals' rejections on the merits of petitioner's Brady and Giglio-Napue claims were neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
V. Involuntary Confession Claim
A. The ClaimIn his fourth claim herein, Petitioner argues that his confession was rendered involuntary by virtue of the prescription medications he was taking on May 20, 1999.
Petition, at pp. 35-38.
B. State Court Disposition
Petitioner filed a pretrial motion to suppress his oral and written statements. The motion focused on alleged violations of state procedural rules and on the purported violation of Petitioner's right to counsel. The motion did not allege that Petitioner's confession was rendered involuntary due to Petitioner's intoxication or use of prescription medication. During an evidentiary hearing held January 14, 2000, the San Antonio Police Detective who took Petitioner's May 20, 1999 written statement testified, in pertinent part, that (1) Petitioner was read his rights shortly after arrest on May 18, 1999, (2) that same date Petitioner signed a warnings card, (3) he also read to Petitioner the rights warnings on the top page of Petitioner's written statement, which Petitioner executed that date, (4) after additional investigation, including the interrogation of Derrick Murphy, he decided to re-interview Petitioner, (5) on May 20, 1999, he again read Petitioner his rights and Petitioner acknowledged understanding same, (6) Petitioner gave a second statement in which he admitted that he and Murphy were responsible for the murders, (7) before giving that second statement, Petitioner signed a second warnings card, (8) no coercion or force was used to secure Petitioner's second statement, (9) no promises were made to induce Petitioner's second statement, (10) civilian witnesses witnessed Petitioner's execution of Petitioner's second statement, (11) Petitioner never indicated that he lacked understanding of the proceedings or of the document he was reading and executing, (12) Petitioner never requested the assistance of counsel, although Petitioner did ask the detective at one point after Petitioner had executed his second statement whether the detective believed Petitioner should talk to an attorney, (13) Petitioner wrote part of the second statement himself, and (14) at the time he took Petitioner's second statement, he did not ask whether Petitioner had been under the influence of narcotics at the time Petitioner gave his first statement, because, at the time Petitioner gave his first statement, Petitioner showed no signs of being under the influence of narcotics or alcohol. Petitioner offered the state trial court no evidence showing that he was under the influence of any medication or narcotic at the time he gave his second, more inculpatory, statement. The state trial court concluded that both of Petitioner's written statements were voluntarily given and, therefore, admissible. When the prosecution tendered Petitioner's second written statement for admission into evidence, Petitioner voiced no objection to the admission of same.
Trial Transcript, Volume 1 of 4, at pp. 77-80.
S.F. Trial, Volume 2, testimony of Robert Moffitt, at pp. 21-25, 27-33, 36-55.
S.F. Trial, Volume 2, at pp. 65-66.
S.F. Trial, Volume 21, at pp. 55-56.
On direct appeal, Petitioner did raise a point of error complaining about the admission of his written statement but that point of error focused exclusively on Petitioner's argument that he had invoked his right to counsel before he gave his second statement. The Texas Court of Criminal Appeals rejected this point of error on the merits, concluding that Petitioner's purported invocation of his right to counsel was too ambiguous to rise to the level of a constitutional violation.
Brief for the Appellant, at pp. 20-22.
Kimmel v. State, No. 73,786 (Tex.Crim.App. November 7, 2001), slip op. at pp. 7-10.
Petitioner urged his complaint that the second statement was rendered involuntary by virtue of Petitioner's ingestion of prescription medications for the first time in his state habeas corpus application. The only evidence Petitioner presented to the state habeas court supporting this contention consisted of a one-page affidavit from a clinical psychologist which noted that Petitioner reported that (1) he had been prescribed and had taken Prozac from May 5, 1999 through the date of his arrest and (2) he had been prescribed and taken Doxepin shortly after his arrest. The same affidavit concluded as follows:
State Habeas Transcript, at pp. 36-39.
Affidavit of Jack G. Ferrell, Jr., State Habeas Transcript, at p. 77.
It is my opinion, after interviewing Mr. Kimmel and reviewing the data that was provided to me regarding his case, that Mr. Kimmel may well have experienced difficulty with the medication or combination of medications, which caused him to be essentially involuntarily "drugged" and less able or unable to fully appreciate his circumstances, exert his will freely, or protect his rights as he was able to do prior to being placed on the second medication.
Id.
The state habeas court concluded that Petitioner failed to raise his complaint regarding his alleged intoxication at the time of his second statement with the trial court in a timely manner and, additionally, noted that Petitioner failed to show that any level of intoxication suffered by Petitioner at the time he gave his second statement that rendered him incapable of making an independent, informed decision to confess.
State Habeas Transcript, at pp. 178-79.
C. Procedural Default
Respondent correctly notes that, as pointed out by the state habeas court, the petitioner procedurally defaulted on this claim by failing to make a timely objection to the admission of his second confession on the ground that he was intoxicated at the time he executed same. It is settled Texas law that a failure to object to the admission of evidence in a timely manner during trial waives error regarding the admission of the evidence, even if the error arose from a violation of the defendant's constitutional rights. Little v. State, 758 S.W.2d 551, 563 (Tex.Crim.App. 1988), cert. denied, 488 U.S. 934 (1988). The Fifth Circuit has long recognized a failure to comply with the Texas contemporaneous objection rule supports a finding of federal procedural default. See, e.g., Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003), cert. denied, 540 U.S. 1186 (2004) (violation of the Texas contemporaneous objection rule is an adequate and independent barrier to federal habeas review); Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001).
Petitioner's argument that, by addressing the merits of Petitioner's involuntary confession claim in the alternative, the state habeas court effectively negated the legal impact of its finding of procedural default is legally frivolous. The Supreme Court has clearly held that a state court opinion, such as that issued by the trial court in Petitioner's state habeas corpus proceeding, which plainly relies on a state procedural bar need not fear reaching the merits of a federal claim in an alternative holding. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("By its very nature the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."). Furthermore, the Fifth Circuit expressly held in Soria v. Johnson, 207 F.3d at 249, that a state habeas court's finding of procedural default on a jury composition claim foreclosed federal habeas review of that claim even though the state habeas court alternatively rejected the petitioner's federal claim on the merits. Thus, the fact the state habeas court also addressed the merits of petitioner's involuntary-confession claim after plainly and clearly rejecting that same claim on state procedural grounds does not alter the preclusive effect of that court's state procedural ruling.
D. Guilty Plea Waived Claim Re: Admissibility of Confession
Respondent also correctly points out that Petitioner alleges no facts showing that his guilty plea was other than voluntarily, intelligently, and knowingly entered. Under such circumstances, by pleading guilty, Petitioner waived any complaint that his federal constitutional rights were violated in connection with the giving of his second statement. See Bradshaw v. Stumpf, ___ U.S. ___, ___, 125 S. Ct. 2398, 2405 (2005) (a guilty plea waives important rights); McMann v. Richardson, 397 U.S. 759, 766 (1970) (a valid guilty plea waives a host of constitutional rights, including the right to contest the admissibility of a confession); Brady v. United States, 397 U.S. 742, 748 (1970) (a voluntary, intelligent, and knowing guilty plea waives the right to trial and most attendant constitutional protections).
E. No Merit on the Merits
1. Clearly Established Federal Law
In Colorado v. Connelly, 479 U.S. 157 (1986), the United States Supreme Court rejected many of the arguments underlying Petitioner's fourth claim for relief herein, i.e., that the voluntariness of a defendant's confession somehow turns on the subjective state of mind and mental condition of the defendant. Id. at 164-67 (emphasizing that coercive police activity is a necessary predicate to a finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment). Instead, the Supreme Court held unequivocally that a conclusion that a confession was involuntary must be premised on a finding that law enforcement officials employed or directed coercive actions toward the defendant and that said coercive conduct was "causally related to the confession." Id. at 164-71.
Subsequently, the Supreme Court has explained that the test for determining whether a defendant's confession is voluntary requires examination of the totality of the circumstances surrounding the giving of the confession, including the characteristics of the accused and the details of the interrogation. Dickerson v. United States, 530 U.S. 428, 434 (2000). These circumstances include not only the crucial element of police coercion but also the length of the interrogation, its location, and its continuity, as well as the defendant's maturity, education, physical condition, and mental health. Withrow v. Williams, 507 U.S. 680, 689 695 (1993).
2. AEDPA Review
The state habeas court was faced with a record establishing that, more than two days after his arrest and after Derrick Murphy gave a well-publicized confession which pointed to Petitioner as the murderer of the three victims, and after he again received appropriate Miranda warnings, Petitioner recanted his earlier written statement denying all personal knowledge of the murders and, instead confessed to his involvement in the murders. Petitioner was no stranger to the criminal justice system, having negotiated his way out of no less than three juvenile offenses and one adult felony offense. Petitioner presented the state habeas court with no evidence suggesting that law enforcement officers employed any coercive techniques to induce his second written statement. Likewise, Petitioner never testified in any proceeding before the state trial or state habeas courts that he suffered from any physical or mental impairment at the time he gave his second written statement, a substantial portion of which he wrote out by hand and accompanied with several hand-drawn diagrams of the crime scene and the location where he disposed of the murder weapon. Autopsies performed on the three murder victims corroborated the details of Petitioner's account of his and Murphy's murders. Petitioner supported his involuntary-confession claim with only a largely hearsay affidavit from a mental health expert suggesting in less than concrete terms that Petitioner "maywell have" experienced side-effects from prescription medications that rendered Petitioner less capable than otherwise of giving a voluntary statement. Under such circumstances, the state habeas court's rejection on the merits of Petitioner's involuntary confession claim was an eminently reasonable application of the Supreme Court's long-standing totality of the circumstances test outlined above.
Detective Moffitt testified during the pretrial hearing on Petitioner's motion to suppress that, after Petitioner gave his first, non-inculpatory statement, Petitioner informed Moffitt that he wanted to talk to Moffitt about some things he had heard on the news, specifically, things Murphy was saying about Petitioner. S.F. Trial, Volume 2, testimony of Robert Moffitt, at pp. 48-50.
F. Conclusion
Petitioner procedurally defaulted on his involuntary confession claim by failing to timely challenge the voluntariness of his confession on the same ground that Petitioner urges in this Court. Petitioner also waived that same complaint when he entered his voluntary, intelligent, and knowing guilty plea. Moreover, the Texas Court of Criminal Appeals' alternative rejection on the merits of the same claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in Petitioner's state habeas corpus proceeding.
VI. Challenge to "Vague" Texas "Aggravating Factors"
A. The Claim
In his fifth claim herein, Petitioner complains that the capital sentencing special issues in his punishment-phase jury charge included numerous "vague" terms which failed to channel the jury's discretion regarding the imposition of a life or death sentence and thereby violated the Eighth and Fourteenth Amendments.
Petition, at pp. 39-41.
B. State Court Disposition
The state habeas court rejected the claim on the merits, concluding that the Texas capital murder sentencing scheme narrows the category of those subject to the death penalty in a manner required by the Constitution through the statutory definition of capital murder and, therefore, definitions of the terms used in the capital sentencing special issues are unnecessary to eliminate any purported ambiguity in those terms.
State Habeas Transcript, at pp. 179-80.
C. AEDPA Analysis
1. Texas Not a "Weighing" Jurisdiction
The initial problem with Petitioner's fifth claim herein is that Petitioner assumes that various, allegedly "vague" terms included within his punishment-phase jury instructions constituted "aggravating factors" analogous to those employed by jurisdictions that require a capital sentencing authority to "weigh" identified aggravating factors against "mitigating" factors. Petitioner's jury was never faced with the type of weighing responsibility involved in many of the cases relied upon by Petitioner. This is because Texas is not a weighing jurisdiction for Eighth Amendment purposes. See Hughes v. Johnson, 191 F.3d 607, 623 (5th Cir. 1999), cert. denied, 528 U.S. 1145 (2000) (Texas is not a weighing state); West v. Johnson, 92 F.3d 1385, 1406 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997) (rejecting the argument that the Texas capital sentencing special issues work as aggravating factors and, therefore, require detailed definitions of the terms employed therein); Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996), cert. denied, 519 U.S. 854 (1996) (rejecting the argument that the terms employed in the Texas capital sentencing special issues are "aggravating factors" and, absent definitions of same, are unconstitutionally vague).
2. Eighth Amendment No Bar to Jury's "Unfettered Discretion" at Punishment Phase of a Texas Capital Trial
Furthermore, contrary to Petitioner's contention, nothing in the Eighth Amendment precludes a State from granting unfettered discretion to a capital sentencing jury once the defendant has been constitutionally determined to be "eligible" to receive such penalty. In Tuilaepa v. California, 512 U.S. 967 (1994), the Supreme Court distinguished two aspects of the capital decision-making process, i.e., the "eligibility" decision and the "selection" process, and emphasized that, while both inquiries necessarily involve resolution of issues that bear a factual nexus to the crime, the selection process must also focus on the character and record of the defendant. Id. at 971-73.
In Buchanan v. Angelone, 522 U.S. 269 (1998), the Supreme Court reaffirmed the vitality of the two-stage Tuilaepa analysis and rejected an argument that the Constitution mandates jury instructions at the selection stage of a capital sentencing proceeding which affirmatively structure the manner in which juries consider mitigating evidence. Id. at 276 (with regard to the selection phase of a capital sentencing process, "our decisions suggest that complete jury discretion is constitutionally permissible.").
Under the Texas capital sentencing scheme, the constitutionally-mandated "narrowing function" is performed at the guilt-innocence phase of trial. See Johnson v. Texas, 509 U.S. 350, 362 (1993) (previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment because the statute itself adopted five different classifications of murder for that purpose); Woods v. Johnson, 75 F.3d at 1033-34 (recognizing that the constitutionally narrowing function is performed in Texas at the guilt-innocence phase of a capital murder trial). At the selection phase, a sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Buchanan v. Angelone, 522 U.S. at 276. However, as explained in Buchanan, the Supreme Court has never held that granting capital sentencing juries complete discretion at the selection phase violates the Eighth Amendment. Id. On the contrary, the Supreme Court's opinion in Tuilaepa strongly suggests the opposite is actually the case. Tuilaepa v. California, 512 U.S. at 978-79 (suggesting the Eighth Amendment permits granting capital sentencing juries "unbridled discretion" at the selection phase).
The "eligibility" determination discussed in Tuilaepa occurred at the guilt-innocence phase of Petitioner's capital murder trial. Woods v. Johnson, 75 F.3d at 1033-34. Thus, even assuming that the lack of definitions of key terms included in Petitioner's punishment phase jury charge effectively granted Petitioner's jury what amounted to "unfettered discretion" in deciding whether to impose a sentence of death, as Petitioner contends herein, that fact did not deprive Petitioner of the protection of any federal constitutional right.
3. Punishment Phase Instructions Did Not Preclude Jury's Consideration of Mitigating Evidence
In Boyde v. California, 494 U.S. 370 (1990), the Supreme Court established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial. That is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Id. at 380. The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See, e.g., Weeks v. Angelone, 528 U.S. 225, 226 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Johnson v. Texas, 509 U.S. 350, 367 (1993). This "reasonable likelihood" standard does not require the petitioner to prove that the jury "more likely than not" interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367; Boyde v. California, 494 U.S. at 380.
A reviewing court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). "In evaluating the instructions, we do not engage in a technical parsing . . ., but instead approach the instructions in the same way that the jury would — with a `common sense understanding of the instructions in the light of all that has taken place at the trial.'" Johnson v. Texas, 509 U.S. at 368; Boyde v. California, 494 U.S. at 381.
The terms included in Petitioner's punishment phase jury charge which he identifies as "vague" are no less so than numerous, similar, terms which the Fifth Circuit has repeatedly held to possess a "common sense" meaning when interpreted by reasonable jurors. See, e.g., Hughes v. Johnson, 191 F.3d at 615 (the term "probability," used in the Texas capital sentencing special issues, does not requires a definition); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993), cert. denied, 511 U.S. 1026 (1994) (the terms "probability" and "society" have a common sense meaning); James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993), cert. denied, 509 U.S. 947 (1993) (the terms "deliberately," "probability," "criminal acts of violence," and "continuing threat to society," have a common-sense core meaning that criminal juries should be capable of understanding).
Petitioner has not identified any potentially mitigating evidence admitted during his trial which he alleges his jury was unable to adequately consider by virtue of the language employed in his punishment-phase jury instructions. Absent some showing that Petitioner's jury might have reasonably construed Petitioner's punishment phase jury instructions so as to foreclose it from giving mitigating effect to any evidence then before it, Petitioner's complaints regarding the use of various allegedly "vague" terms in his punishment phase jury instructions do not present a constitutional complaint.
D. Teague Foreclosure
Furthermore, because the Supreme Court's opinions discussed above implicitly, if not explicitly, rejected the legal premise underlying Petitioner's fifth claim herein, adoption of the rule advocated by Petitioner in his claim herein is foreclosed by the non-retroactivity principle of Teague.
E. Conclusion
The legal argument underlying Petitioner's claim herein is foreclosed by the Teague non-retroactivity doctrine. Furthermore, the Texas Court of Criminal Appeals' rejection on the merits of Petitioner's assertions of unconstitutional vagueness in his punishment-phase jury instructions was neither 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 Petitioner's state habeas corpus proceeding.
VII. Challenge to Twelve-Ten Rule
A. The Claim
In his final claim for relief herein, Petitioner argues that because Texas law requires at least ten jurors to agree on an answer to a capital sentencing special issue that is favorable to the defense (or unanimously to an answer favorable to the prosecution) before a verdict may be rendered on that special issue and because the jury is not informed of the impact of a single hold-out juror's refusal to help the jury reach either of those alternative verdicts, a Texas capital sentencing jury could potentially be forced to deliberate even after "every juror" has determined to vote in favor of a life sentence.
Petition, at pp. 41-42.
B. State Court Disposition
The state habeas court rejected this same claim on the merits, reasoning that jurors need not be informed of the consequences of their failure to agree on the capital sentencing special issues.
State Habeas Transcript, at p. 181.
C. AEDPA Review
The Supreme Court implicitly rejected the arguments underlying Petitioner's final claim in Jones v. United States, 527 U.S. 373 (1999). In Jones, the Court concluded that the Eighth Amendment does not require that a jury be instructed as to the effect of a "breakdown in the deliberative process," because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death. Id. at 382.
Petitioner complains that the state trial court's failure to advise the Petitioner's jury regarding the effect of a hung jury violates Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990), because the state trial court, pursuant to a statutory prohibition, failed to inform the jury at the punishment phase of trial as to the effect of a single "no" vote on any of the Texas capital sentencing special issues. Neither of these Supreme Court opinions support the principle urged by Petitioner herein.
In Mills, the Supreme Court concluded "that there is a substantial probability that reasonable jurors, upon receiving the judge's instructions . . ., and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance. Under our cases, the sentencer must be permitted to consider all mitigating evidence." Id. at 384.
In McKoy, the Court stated that "even if all 12 jurors agree that there are some mitigating circumstances, North Carolina's scheme prevents them from giving effect to evidence supporting any of those circumstances in their deliberations . . . unless they unanimously find the existence of the same circumstance. This is the precise defect that compelled us to strike down the Maryland scheme in Mills. See 486 U.S., at 374, 108 S. Ct., at 1865. Our decision in Mills was not limited to cases in which the jury is required to impose the death penalty if it finds that aggravating circumstances outweigh mitigating circumstances or that no mitigating circumstances exist at all. Rather, we held that it would be the `height of arbitrariness to allow or require the imposition of the death penalty' where 1 juror was able to prevent the other 11 from giving effect to mitigating evidence." Id. at 439.
Petitioner's jury was never faced with the type of weighing responsibility involved in McKoy. As explained above, Texas is not a weighing jurisdiction for Eighth Amendment purposes. Hughes v. Johnson, 191 F.3d at 623; James v. Collins, 987 F.2d at 1120 (recognizing that, unlike a weighing jurisdiction, Texas sentencing juries are not called upon to weigh statutory aggravating factors against mitigating evidence). Thus, McKoy is inapplicable to the punishment phase of Petitioner's capital murder trial.
Essentially, Petitioner complains that individual members of his jury were not furnished with a detailed explanation of exactly what constituted a "hung jury" at the punishment phase of a Texas capital murder trial. However, the Fifth Circuit has expressly rejected this same argument, noting that the law in Texas, a non-weighing jurisdiction, is different from that in Mills:
Under the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance. Thus, Mills is inapplicable.
The Texas system allows an answer of "Yes" to a special issue if all jurors vote "Yes," and allows an answer of "No" if ten jurors vote "No." Mills does not require a certain number of jurors to agree to impose the death penalty.Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995).
As explained above, in order to successfully challenge a state court's jury instructions at the punishment phase of a capital murder trial, a federal habeas petitioner must show more than that a capital sentencing scheme might have resulted in the jury being prevented from considering mitigating evidence; the petitioner must show a reasonable likelihood that such actually occurred. Boyde v. California, 494 U.S. at 380. In this case, essentially argues that his jurors might have concluded from the jury instructions that they were precluded from giving effect to their own opinions as to whether he merited the death penalty. He, however, asserts a construction of the jury instructions that is neither reasonable nor likely to have actually occurred. See Johnson v. Texas, 509 U.S. at 368 ("In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a `commonsense understanding of the instructions in the light of all that has taken place at trial.'").
Furthermore, the Fifth Circuit has rejected the exact same Fourteenth Amendment and Eighth Amendment claims urged by petitioner herein. See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000) (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas ten-twelve rule in the course of affirming this Court's rejection of claims identical to those raised by petitioner herein); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000), cert. denied, 531 U.S. 849 (2000) ( Mills inapplicable to a Texas capital sentencing proceeding); Woods v. Johnson, 75 F.3d at 1036; and Jacobs v. Scott, 31 F.3d at 1328-29. There is no "clearly established" constitutional right to a jury instruction advising a capital sentencing jury of the effect of a hung jury. See United States v. Jones, 132 F.3d 232, 245 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999) (no constitutional violation results from the refusal of a district court to inform the jury of the consequences of failing to reach a unanimous verdict).
D. Teague Foreclosure
Furthermore, as pointed out by Respondent, adoption of the rule advocated by Petitioner is foreclosed by the non-retroactivity doctrine of Teague v. Lane. The rule advocated by Petitioner was not mandated by existing Supreme Court precedent as of the date Petitioner's conviction became final. Thus, Teague forbids this Court from adopting such a new rule in the context of this federal habeas corpus proceeding. Alexander v. Johnson, 211 F.3d at 897; Webb v. Collins, 2 F.3d 93, 95-96 (5th Cir. 1993).
E. Conclusion
Under such circumstances, the Texas Court of Criminal Appeals' rejection on the merits of Petitioner's final claim herein was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor the product of an unreasonable determination of the facts in light of the evidence presented in petitioner's state habeas corpus proceeding. Moreover, Petitioner's legal argument underling his claim herein is foreclosed by the non-retroactivity doctrine of Teague.
VIII. Request for Factual Development
Petitioner requests that this Court permit him to engage in "factual development," i.e., an evidentiary hearing. However, the AEDPA limits the circumstances in which a habeas corpus petitioner may obtain an evidentiary hearing in federal court, imposing a significant burden on petitioners who fail to diligently develop the factual bases for their claims in state court. See Williams v. Taylor, 529 U.S. 420, 433-34 (2000) (prisoners who are at fault for the deficiency in the state court record must satisfy a heightened standard to obtain an evidentiary hearing); 28 U.S.C. § 2254(e)(2). "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Williams v. Taylor, 529 U.S. at 437. Under the AEDPA, if a petitioner failed to develop the factual basis of a claim in state court, he is entitled to a federal evidentiary hearing only if (1) the claim relies on either (a) a new rule of constitutional law, made retroactive on collateral review by the Supreme Court, that was previously unavailable or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence and (2) the facts underlying the claim are sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. Foster v. Johnson, 293 F.3d 766, 775 n. 9 (5th Cir. 2002), cert. denied, 537 U.S. 1054 (2002); Dowthitt v. Johnson, 230 F.3d at 757; 28 U.S.C. § 2254(e)(2).Petitioner was afforded a full and fair opportunity to develop and litigate his claims for relief herein during his state habeas corpus proceeding. Petitioner has presented this Court with no new evidence or factual theories supporting any of his claims herein that were unavailable to him, despite the exercise of due diligence, during his state habeas corpus proceeding. Likewise, Petitioner does not identify any new legal theories supporting his claims for relief herein that were unavailable at the time Petitioner filed and litigated his state habeas corpus claims. Petitioner does not offer any rational explanation for his failure to fully develop any and all evidence supporting his claims herein during his state habeas evidentiary hearing. Nor does Petitioner identify any additional evidence which he and his state habeas counsel were unable to develop and present to Petitioner's state habeas court despite the exercise of due diligence on their part. Under such circumstances, Petitioner is not entitled to a federal evidentiary hearing to further develop the facts supporting his claims herein.
IX. Certificate of Appealability
The AEDPA converted the "certificate of probable cause" that was required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a Certificate of Appealability ("CoA"). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997). The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied, 523 U.S. 1041 (1998).
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253(c)(2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002) (a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); 28 U.S.C. § 2253(c)(3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, ___, 124 S. Ct. 2562, 2569, 159 L. Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000); and Barefoot v. Estelle, 463 U.S. 880, 893 (1983). To make such a showing, the petitioner need not show that he will prevail on the merits but, rather, demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at ___, 124 S. Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. at 484; and Barefoot v. Estelle, 463 U.S. at 893 n. 4.
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong. Miller-El v. Cockrell, 537 U.S. at 338.
In a case in which the petitioner wishes to challenge on appeal a Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether the Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484 (when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).
In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner's favor. Cardenas v. Dretke, 405 F.3d 244, 248 (5th Cir. 2005) ( cert. pending); Miller v. Dretke, 404 F.3d 908, 913 (5th Cir. 2005); Martinez v. Dretke, 404 F.3d 878, 844 (5th Cir. 2005), (cert. pending); Bigby v. Dretke, 402 F.3d 551, 557 (5th Cir. 2005) ( cert. pending); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004), cert. denied, ___ U.S. ___, 125 S. Ct. 1067, 160 L.Ed.2d 1074 (2005).
Petitioner procedurally defaulted on his initial claim herein for two, equally compelling, reasons. Additionally, Petitioner's complaint of bias in the selection of Bexar County grand jurors runs afoul of well-settled Fifth Circuit case law upholding the random selection of persons from voter registration lists to fill jury venires. Petitioner's second and third claims herein are legally and factually frivolous. Petitioner's involuntary-confession claim is not only procedurally defaulted but also barred by the well-settled principle that, absent a conditional guilty plea, an otherwise valid guilty plea waives complaints regarding the voluntariness of a defendant's confession. Petitioner's final two claims herein are barred by Teague, as well as long-standing Supreme Court and Fifth Circuit precedent. Reasonable jurists could not disagree with regard to any of the foregoing conclusions. For those reasons, Petitioner is not entitled to a CoA in this cause.
Accordingly, it is hereby ORDERED that:
1. All relief requested in Petitioner's federal habeas corpus petition, filed September 15, 2004, docket entry no. 6, is DENIED.
3. All relief requested in Petitioner's motion for factual development, filed May 17, 2005, docket entry no. 18, is DENIED.
4. All other pending motions are DISMISSED AS MOOT.
5. Petitioner is DENIED a Certificate of Appealability.
6. The Clerk shall prepare and enter a Judgment in conformity with this Memorandum Opinion and Order.