Opinion
2:99-CV-0061-J **Capital Litigant**
September 11, 2003
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the undersigned United States Magistrate Judge for recommendation.
I. NATURE OF THE CASE
TIMOTHY TYLER TITSWORTH, a state prison inmate sentenced to death has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.
II. PARTIES
Petitioner, Timothy Tyler Titsworth, is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent, Janie Cockrell, is the Director of TDCJ-ID.
III. PROCEDURAL HISTORY
A jury convicted petitioner of capital murder, and his punishment was assessed at death by lethal injection. State v. Titsworth, No. 8119-B (Dist.Ct. of Randall County, 181st Judicial Dist. of Texas, Oct. 29, 1993). The case was appealed to the Texas Court of Criminal Appeals, which court affirmed the conviction and death sentence. Titsworth v. State, No. 71,804 (Tex.Crim.App. Nov. 22, 1995)(unpublished). Petitioner filed a motion for rehearing which was denied. Titsworth v. State, No. 71,804 (Tex.Crim.App. Jan. 26, 1996). Petitioner subsequently filed a state application for writ of habeas corpus on April 22, 1997, and an amended application for writ of habeas corpus on December 17, 1997. The trial court found the application presented no controverted, previously unresolved fact issues material to the legality of Applicant's confinement. State v. Titsworth, No. 8119-B-l (Dist.Ct. of Randall County, 181st Judicial Dist. of Texas, Sep. 4, 1998). It then entered findings of fact and conclusions of law, and recommended that relief be denied. State v. Titsworth, No. 8119-B-l (Dist.Ct. of Randall County, 181st Judicial Dist. of Texas, Sep. 17, 1998). The Court of Criminal Appeals adopted the trial court findings of fact and conclusions of law and denied relief by written order. Ex parte Titsworth, No. 39, 237-01 (Tex.Crim.App. Feb. 10, 1999) (unpublished).Petitioner filed his petition for writ of habeas corpus in this Court on April 8, 1999. Respondent filed its answer on May 31, 2001. Petitioner filed a response to this answer on August 20, 2001. Thereafter, the Court granted an evidentiary hearing limited to those portions of petitioner's first, third, fourth, and sixth claims which involved the testimony of Cindy Risley. Titsworth v. Cockrell, No. 2:99-CV-0061 (N.D. Texas, Feb. 14, 2003). Such evidentiary hearing was conducted on May 14, 2003, and all post-hearing briefs have been filed.
Respondent had previously furnished the state court records on April 27, 2000.
IV. ISSUES PRESENTED
In eleven grounds for relief, petitioner raises various issues concerning his alleged intoxication at the time of his confession, the jury instructions submitted during the punishment phase of his trial, the State court's action in sealing certain records and denying expert assistance, and his trial and appellate attorney's assistance in connection with certain intoxication and psychiatric issues.
V. EXHAUSTION
In its answer, Respondent first conditionally stated that petitioner adequately presented his grounds for federal habeas corpus relief to the state courts as required by 28 U.S.C. § 2254(b), (c). However, in response to petitioner's motion to supplement his petition with a signed version of the Cindy Risley affidavit, Respondent asserted that petitioner's claims relying on such affidavit had not been exhausted in state court because only an unsigned copy of such affidavit was presented to the state court on such claims. ( See Cockrell's Response to Bench Brief at 2.) Respondent's objection should be denied.
Federal habeas petitioners must fully exhaust remedies available to them in state court before proceeding in federal court. 28 U.S.C. § 2254(b)(1). To satisfy this requirement, "a habeas petitioner must have fairly presented the substance of his claim to the state courts." Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citing Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)); Anderson v. Johnson, ___ F.3d ___, 2003 WL 21540642 * 3 (5th Cir. 2003). A "petitioner fails to exhaust state remedies when he presents material additional evidentiary support to the federal court that was not presented to the state court." Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996). However, dismissal for non-exhaustion is not required when evidence presented for the first time in a habeas proceeding supplements, but does not fundamentally alter, the claim presented to the state courts. See Vasquez v. Hillary, 474 U.S. 254, 260, 106 Set. 617, 88 L.Ed.2d 598 (1986); Anderson, 2003 WL 21540642* 3.
In the instant case, petitioner presented the unsigned Risley affidavit to the state court along with his request for an evidentiary hearing to compel her to testify, which request was denied. The only difference now being asserted by Respondent is Risley's signature, which should not be considered a failure by petitioner to exhaust his state remedies. All of the same factual allegations were before the state court when it denied an evidentiary hearing. Therefore, the signature of Risley can be considered merely to supplement, but not fundamentally alter the state claim.
Lastly, even if it were to be held that the Risley affidavit presented evidence not previously considered by the state courts, it is clear that the state courts were presented with an opportunity to consider such evidence had they chosen to do so. During the state habeas proceedings, petitioner requested an evidentiary hearing in order to present Risley's testimony instead of her unsigned affidavit. The exhaustion doctrine should not be an obstacle to a petitioner in presenting a claim when his inability to present that claim is caused, at least to some degree, by the refusal of the state courts to provide a forum where the petitioner could compel testimony from a reluctant witness.
VI. STANDARD OF REVIEW Applicable Law
The petition for a federal writ of habeas corpus was filed after April 24, 1996. Therefore, this proceeding is governed by the terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), 28 U.S.C. § 2254. Lindh v. Murphy, 521 U.S. 320, 326, 117 So. Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Nobles v. Johnson, 127 F.3d 409, 413 (5th Cir. 1997). The AEDPA provides the following deference scheme for review of state determinations of claims that were adjudicated on the merits in state court, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). The Supreme Court has explained that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning.
A state court decision will be "contrary to" our clearly established precedent if the state court either "applies a rule that contradicts the governing law set forth in our cases," or "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." [ Williams v. Taylor, 529 U.S. 362,] at 405-406, 120 S.Ct. 1495, [ 146 L.Ed.2d 389 (2000)]. A state court decision will be an "unreasonable application of our clearly established precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case. Id. at 407-408, 120 S.Ct. 1495.Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the "unreasonable application" analysis, it is not enough that the state court incorrectly applied federal law. To be entitled to relief, petitioner must show that the "ultimate legal conclusion" reached by the state court was objectively unreasonable. Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002); Williams, 529 U.S. at 409-11, 120 S.Ct. at 1521-22.
However, this deference scheme applies only to issues that have been adjudicated on the merits in state court. A resolution or "adjudication" on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert., denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000); Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Claims resolved by the state court on state procedural grounds are subject to a procedural bar in this Court. Federal courts will not consider the merits of a claim resolved by the state courts on an independent and adequate state law ground. See Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002); Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). However, unless specifically resolved on procedural grounds, claims upon which the Texas Court of Criminal Appeals explicitly adopted findings of fact and conclusions of law made by the state trial court in denying relief on the merits of the state habeas application, may be said to have been "adjudicated on the merits" under 28 U.S.C. § 2254(d). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert., denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001); Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001).
Under Texas law, a denial of relief by the Court of Criminal Appeals serves as a denial of relief on the merits of the claim. Miller, 200 F.3d at 281 ( citing Ex parte Torres, 943 S.W.2d 469 (Tex.Crim.App. 1997)).
Evidentiary Hearings
When there is a factual dispute, that, if resolved in the petitioner's favor, would entitle him to relief and the state has not afforded the petitioner a full and fair evidentiary hearing, a federal habeas corpus petitioner is entitled to discovery and an evidentiary hearing. Hughes v. Johnson, 191 F.3d 607 (5th Cir. 1999) (quoting Goodwin v. Johnson, 132 F.3d 162, 178 (5th Cir. 1997)) The AEDPA raised the standards for obtaining relief of claims governed by 28 U.S.C. § 2254(d). Therefore, the allegations of the petition must be sufficient to show that this higher standard can be met before an evidentiary hearing will be warranted. Further, the AEDPA eliminated the requirement of a "full and fair hearing" in state court before according deference to state court findings. Valdez, 274 F.3d at 948. Also, the AEDPA expressly limits the availability of an evidentiary hearing when the habeas petitioner has failed to develop the factual basis of the claim in the state court proceedings. 28 U.S.C. § 2254(e)(2). Each of these limitations was raised by Respondent in opposition to the evidentiary hearing requested by petitioner. The Court granted an evidentiary hearing limited to those portions of petitioner's first, third, fourth, and sixth claims which involve the testimony of Cindy Risley. On all other matters, no evidentiary hearing was warranted.
While reaffirming the Goodwin standard for the initial grant of an evidentiary hearing, the Fifth Circuit Court of Appeals in Valdez stated held that "a full and fair hearing is not a prerequisite to the application of AEDPA's deferential framework." 274 F.3d at 948.
VII. FACTUAL BACKGROUND
The Texas Court of Criminal Appeals recited the following factual background in its opinion on direct appeal:
Viewed in the light most favorable to the verdict, the evidence shows appellant and the victim had been living together for approximately two months when this offense occurred. A friend of the victim testified that on the day before the victim's murder the victim told her she intended to ask appellant to move out of the house because the victim believed appellant was stealing from her.
The next day appellant killed the victim in her bedroom by striking her with a dull two-bladed ax approximately sixteen times excluding the defensive wounds on the victim's hands and legs. The victim probably was asleep in bed when the attack began. At some point during the attack the victim "was either taken off or came off the bed." The victim suffered at least seven blows from the ax while she was on the floor. After the attack, appellant left the victim on the floor. The medical examiner testified the victim could have lived anywhere from twenty minutes to "a number of hours" after the initial attack. After she died, the victim suffered at least one more blow from the ax in a separate episode from the initial attack.
After the initial attack, appellant took the victim's car and some of the victim's personal property. Appellant sold the victim's personal property and used the money to buy crack cocaine. Over the next couple of days appellant and other admitted crack cocaine users made a couple of trips to the victim's home and took more of her property. They used the victim's property to buy more crack cocaine. One of these witnesses testified appellant acted like he was "just having a good time".
After appellant exhausted his supply of money and drugs, he slept for approximately ten or eleven hours. After he awoke, he and another person decided to make another trip to the victim's home in the victim's car to get more of her property. However, by this time the victim's mother had found the victim's body and had alerted the police who were looking for appellant. The police arrested appellant and another person in the victim's car while, according to this other person, they were on their way to the victims' home.
Later that day, after initially denying any involvement in the offense, appellant confessed to killing the victim and taking her property, hi his confession, appellant claimed he and the victim had some type of argument after she accused appellant of "messing around." After slapping appellant around, the victim went to bed. Appellant left the house and bought some crack cocaine and a pill he thought was LSD. Appellant ingested the drugs and went back to the house. Appellant retrieved an ax from the closet while the victim was asleep in bed. Appellant claimed he blacked out but he remembered hitting the victim with the ax. He claimed he hit the victim four or five times with the ax. He claimed that when he realized what he had done he did not know what to do so he sold some of the victim's property and bought more crack cocaine. On his first trip back to the victim's home, appellant claimed the victim "was still breathing and it looked like she had tried to crawl into the bathroom." However, appellant left the house with more of the victim's property which appellant sold to buy more crack cocaine. Appellant claimed he was taking a friend home when the police arrested him.Titsworth, slip op. at 1-2. This Court must accord a presumption of correctness to these state court findings. 28 U.S.C. § 2254(e).
VIII. ISSUES A. Claims related to failure to disclose intoxication evidence
In his first and second grounds for federal habeas corpus relief, petitioner alleges the prosecutors failed to disclose, upon request, favorable evidence in violation of his due process rights under the Fourteenth Amendment. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Petitioner contends he was intoxicated at the time he gave his confession, and in his first ground claims the prosecutors suppressed evidence that petitioner's confession was involuntary because of his intoxication. His second ground complains that prosecutors suppressed a memo in their files of a telephone contact with a mitigation witness.
Due process under Brady v. Maryland prohibits "the suppression by the prosecution of evidence favorable to an accused." Id. at 87. To be entitled to habeas corpus relief on a Brady claim, a petitioner must establish that (1) the state suppressed evidence or withheld evidence, which was both (2) favorable and (3) material to the defense. See Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Jackson v. Johnson, 194 F.3d 641, 648 (5th Cir. 1999), cert., denied, 529 U.S. 1027, 120 S.Ct. 1437, 146 L.Ed.2d 326 (2000). A prosecutor does not, however, have obligation under Brady to produce evidence or information already known to a defendant, or that he could have obtained by exercising reasonable diligence. Brown, 104 F.3d at 750; United States v. Dula, 989 F.2d 772, 775 n. 7 (5th Cir. 1993); United States v. Bermea, 30 F.3d 1539, 1574 (5th Cir. 1994). Suppressed evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Hudson v. Whitley, 979 F.2d 1058, 1066 (5th Cir. 1992)). A reasonable probability is "`a probability sufficient to undermine confidence in the outcome'" of the proceedings. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Information is not material under Brady if it is merely cumulative of other evidence already before the fact finder. Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996). Whether the state is required to produce the information, and whether such information is material under Brady are mixed questions of law and fact entitled to deference under the AEDPA. See Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir. 1999), cert., denied, 527 U.S. 1056 (1999); Brown v. Cain, 104 F.3d 744, 750 (5th Cir. 1997).
In his first ground for relief, petitioner claims the prosecution failed to disclose petitioner was intoxicated during his arrest and interrogation. Petitioner submits his statement admitting to the ax murder should have been suppressed because he was intoxicated to the degree that it made his confession involuntary. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In Townsend v. Sain, the Supreme Court stated:
If an individual's "will was overborne" or if his confession was not "the product of a rational intellect and a free will," his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug induced statement.372 U.S. at 307, 83 S.Ct. at 754; See also U.S. v. Webb, 755 F.2d 382, 392 (5th Cir. 1985). In considering this test, the Fifth Circuit Court of Appeals in Webb declined to hold a confession involuntary even though there was some evidence to indicate that Webb, the confessing person, had been intoxicated, In noting that Webb had repeatedly confessed both at the time of his intoxication and later, the Court of Appeals concluded that his confession was not shown involuntary. Id. at 392. Therefore, in order to show a violation of Brady, petitioner must show more than the fact that he was or may have been intoxicated and that the prosecution knew it, and must show the prosecution withheld evidence from him that would have caused his confession to be excluded on the basis that his intoxication caused his will to be overborne by police efforts to obtain a confession. The state trial court found petitioner gave a knowing and voluntary waiver of his rights and confessed to the murder (Record of State Habeas Corpus Proceedings, hereinafter "SHR," at 261, 268), before petitioner was arraigned by a state judge and subsequently went through the booking process into the Randall County Jail. (State Court Reporter's Record, hereinafter "SOF," II at 25-27, 32-35; SOF XIII at 209-13, 215-19.)
In support of this claim, petitioner produced the testimony of Cindy Risley, a former employee of the Randall County Sheriffs Office who booked petitioner into the Randall County jail after his arrest and interrogation. (Transcript of evidentiary hearing conducted on May 14, 2003, hereinafter "Hearing," at 17-18, 26-28; SOF XV at 270.) Although she did not indicate any knowledge of petitioner's condition during his arrest, interrogation or arraignment before he arrived at the jail, she testified to her opinion that petitioner appeared intoxicated during the subsequent process of booking him into the jail. She testified that her conclusion was based upon her observations of petitioner and because he laughed with her as shown in the photographs displayed at trial (Hearing at 31, 65), answered some of the booking questions as if the victim were still alive, and nodded off during the hour-long booking process ( Id. at 31, 64). Risley also testified that his behavior could have been caused by something else. ( Id. at 64.) She further testified that maybe the next day ( Id. at 33) or two to three days later ( Id. at 66) she shared her opinion regarding his intoxication with unknown detectives from the City of Amarillo police department, and in reply, one of them said, either "you don't say that," "don't be saying that," or "don't say that." (Risley Aff. at 3; Hearing at 34, 128.) However, this comment would appear to have had no effect on her, as she also testified that during the period of time that petitioner was awaiting trial she felt as free to share this opinion with the defense as she did at the hearing before this Court, and would freely have done so if asked. ( Id. at 39-40.)
Petitioner argues the prosecution was required to investigate and disclose to petitioner this information suggesting that he may have been intoxicated. However, the prosecutors had no obligation under Brady to produce to petitioner evidence or information already known to him, or that he could have obtained by exercising reasonable diligence. Brown, 104 F.3d at 750; United States v. Dula, 989 F.2d 772, 775 n. 7 (5th Cir. 1993); United States v. Bermea, 30 F.3d 1539, 1574 (5th Cir. 1994). Petitioner did not testify at the evidentiary hearing and nothing has been offered to show petitioner was intoxicated to the degree that he was unaware of his own condition. Further, the written confession itself records facts concerning his drug usage which would have alerted his attorneys to the possibility of intoxication. ( See Hale Aff. at 1-2; SHR 213-14; Hearing at 140, 150-51, 163-64.) Further, petitioner's trial counsel based much of their defense to the death penalty upon his intoxication and drug addiction. In light of all of the evidence and the record before this Court, Risley's testimony does not credibly establish that any such evidence was withheld from petitioner, or that such evidence was not already known to him.
Risley also testified that during the state post-conviction habeas process she was the victim of other efforts to suppress her testimony. She stated that as she rode on a courthouse elevator with her supervisor, she mentioned that she was going to tell the petitioner's investigator "the truth", and her supervisor said "well, just remember, you're at (sic) at-will employee." (Hearing at 71-72, 128.) She also testified, however, that she did not feel that her job was threatened if she came forward with that information. ( Id. at 67.) Although raised m connection with this point, this uncorroborated testimony does not appear relevant to this or any other Brady claim before this Court, particularly, in light of the fact that this allegation of coercion occurred post-conviction. ( See id. at 195.)
Even if the information was withheld, it would still not meet the materiality test under Brady. Risley did not state a belief that petitioner's confession was involuntary because of any intoxication, and most of the underlying reasons for her opinion were disclosed or reasonably apparent to petitioner before the trial. Petitioner's laughing demeanor was evident from the photographs that were prominently displayed to the jury during the trial and argued by the prosecutor during final jury argument. Also, the "unusual" way that petitioner answered Risley's booking questions was also apparent from the written confession admitted through police Sergeant White. (SHR at 135-36; SOF XIII at 219-225.) These matters were disclosed to petitioner and do not form the basis of any Brady claim. To the extent Risley's opinion is cumulative of this disclosed evidence, it could not pass the materiality test under Brady.
The only factor not expressly disclosed to petitioner before or during the trial, that he "nodded off during the hour-long booking process, does not necessarily indicate intoxication. Petitioner admits that he had earlier that same day endured a three-hour interview with Sergeant White which followed an ordeal involving illegal drugs, murder, theft, and other criminal activity lasting approximately three days. Although it is not clear how long after the interview, confession, and arraignment the booking process occurred, it is not surprising that petitioner would be more tired, sleepy, or emotionally exhausted during the booking process than he would have been at the beginning of his interview hours earlier when he waived his rights and agreed to speak with Sergeant White. Therefore, his sleepiness during such process is not the type of favorable material evidence required to be disclosed under Brady. Further, since Risley's identity as petitioner's booking officer was disclosed to the defense, and since she was called to testify as a fact witness at his trial, the prosecution placed her testimony before the defense both before and during the trial. (SOF XV at 270.) In addition, Risley's affidavit suggests that she developed a close relationship of trust and confidence with petitioner, and that she had strained relations with the prosecutors prior to trial. (Risley Aff. at 2-4.) Therefore, petitioner appears to have been as likely as the prosecution to have actually known of the testimony that he claims was withheld from him.
A description of these events is contained in petitioner's confession attached at Exhibit "C" to petitioner's Memorandum. (SHR at 135-36; SOF XIII at 219-225; petitioner's Memorandum at 26-27.)
Finally, the record before this Court shows that petitioner's will was not overborne by any intoxication. The trial record shows that petitioner expressly confessed to this murder to two people other than Sergeant White (Cindy Risley and Jeane Autry, a probation officer) as shown by their testimony admitted during the punishment stage of petitioner's trial. Petitioner was also shown willing to make statements about the crime to others in the jail, such as smiling while calling himself the "ax boy" to a worker in the jail kitchen. Titsworth v. State, No. 71,804, slip op. at 6-7. Even the Risley affidavit presented to this Court suggests that petitioner wanted to talk with her at other times and confess to this murder. Rather than showing that his will was overborne by intoxication or that his confession was not the result of his rational intellect and free will, petitioner's allegations, when viewed in light of the record before the state court, indicate petitioner's will was to admit to the commission of the murder.
She was a supervisor of other probation officers with the Gray County Community Supervision and Corrections Department in Pampa, Texas at the time of her testimony, but she had been petitioner's probation officer. SOF XV at 4-5, 7. She was previously known as Jean Roper before her marriage. Exhibit "G" to Petition.
SOF XV at 85-88. Among other things, petitioner admitted to her that he "didn't deserve to live, that Tina was a beautiful person and a beautiful life ahead of her." Id. at 85. She testified petitioner told her the victim "slapped him. He found the ax and hit Tina several times with it. He felt nothing and continue to go back to the Flats after more cocaine." Id. at 87. She testified that "I asked him how he could have gone back to the trailer, found her still alive, left without helping her. He said that he still felt nothing, that he continued smoking crack cocaine until he was arrested." Id. She related to petitioner that she had told the prosecutors and media that he was not a violent offender, and he replied "I am now." Id. at 88.
`Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus by Person in State Custody (hereinafter also "petitioner's Memorandum") at page 8 relates that David Spain, a worker in the kitchen detail of the jail, remembered "petitioner asking him to `get the ax boy some sugar for his tea.' Petitioner had a smile on his face and Spain never observed petitioner show remorse." (SOF XV at 173-74).
The proposed affidavit of Risley also contains the following, which discuss both petitioner and another inmate named Knight:
Both Knight and Titsworth were friendly in the jail and I personally had no problem with either one. Both seemed to enjoy talking and I listened.
Titsworth
Taylor asked whether this is what lead to Titsworth's confession to me. This is the confession I testified to during Titsworth's trial. I told Taylor I am sure that it was. I also told Taylor that I did not expect the confession from Titsworth-I was not questioning Titsworth in order to gain a confession. I was just visiting with him and it happened.
* * *
Taylor asked me how much contact I had with Titsworth and how he reacted to his crime. I stated that Titsworth and I spent a lot of time talking during the long period he was in the Randall County Jail. Titsworth often cried over the crime. He was upset over his actions and talked about his girlfriend.
(Risley Aff. at 1-2; SHR, at 147-48.)
Nothing presented shows the state findings to be incorrect. Assuming the Risley affidavit is considered to be "evidence presented" in the state habeas corpus proceeding, and, therefore, that such claim was exhausted, petitioner has not shown the state court decision was incorrect, much less to have been based on an unreasonable finding of fact in light of the record before it. See 28 U.S.C. § 2254(d)(2).
Lastly, it is the opinion of the undersigned, after hearing the testimony at the evidentiary hearing by Sergeant White, the Amarillo Police Officer who took petitioner's confession, and the testimony of Cindy Risley, that the testimony of Sergeant White is more credible. Sergeant White's testimony was more credible because he observed petitioner in a one-on-one confrontation for a period of two to three hours, advised him of his constitutional rights during such time, and conversed at length with him. Sergeant White was in a much better position to observe petitioner and determine whether he was or was not incapacitated to any degree. Ms. Risley, on the other hand, observed petitioner for a much shorter time under circumstances which were not nearly so intense as the exchange between petitioner and Sergeant White.
Petitioner's first ground for relief should be denied.
Although not clearly expressed as an independent claim, petitioner included in his argument a contention that Risley's opinions were favorable and material to the issue of mitigation of punishment. Petitioner's alcohol problem, however, was considered and the state habeas court found that there was ample evidence presented at trial to establish petitioner's intoxication during the offense, his drug and alcohol addiction in mitigation of punishment, and that additional proof of petitioner's alcohol use would merely have been cumulative of this evidence. Concerning petitioner's future dangerousness, the nature of Risley's testimony again indicates Risley developed a close relationship with petitioner during his time in the Randall County Jail and it was through this relationship that she obtained this information from him. The prosecution had no obligation under Brady to produce for an accused evidence or information already known to the accused, or that he could have obtained from other sources by exercising reasonable diligence. Brown, 104 F.3d at 750. Further, since this type of evidence was presented at trial, the state habeas court properly found that additional proof that petitioner was not violent when incarcerated and not felt to be a future danger in such environment would have been cumulative of the evidence already presented. The state court findings are supported by the record and negate the element of materiality that is essential in order to find a due process violation as set out in Brady. See Spence, 80 F.3d at 995. Therefore, these allegations do not warrant habeas corpus relief whether asserted as an independent claim or as part of another claim for relief.
"The Risley "affidavit" states in pertinent part that
"Taylor questioned me concerning Titsworth's drug addiction. He asked me if I had heard anything about this. I stated that Titsworth admitted to me that he had a tremendous problem with drugs. Taylor asked if there was anything to substantiate this. First, I told Taylor that I talked about Titsworth's drug problems with Sherry McBeth (Garrett) and Rickie Arnold, both ex-girlfriends of Titsworth. Both women indicated Titsworth was heavily addicted to drugs, and had been for some time before the crime."
The "affidavit" proceeds with the discussion of her observations during the booking process. Outside of petitioner's admission, this statement would indicate that her information was only hearsay. Further, this was well proven at petitioner's trial.
The trial court on state habeas review made Findings of Fact and Conclusions of Law (hereinafter "State Habeas Findings") in Ex parte Titsworth, No. W-8119-B-l, 181st District Court of Randall County, Texas.
Since Risley was also a witness to petitioner's escape from jail pending trial, it is not clear that her testimony on this matter would have ultimately been more helpful than harmful to petitioner. (SOF XV at 114).
State Habeas Findings Nos. 12, 19-25.
In his second claim for relief, petitioner alleges the failure of prosecutors to disclose a memorandum from their files regarding a telephone conversation with Ron Kelley violates Brady. This memorandum is not itself the evidence that could have been suppressed in violation of Brady, but instead evidences knowledge state prosecutors possessed regarding Kelley's recollections and opinions of petitioner and which are argued to form the basis of potential testimony by Kelly at petitioner's trial. It is this potential testimony within the knowledge of prosecutors that must be examined to determine whether it was suppressed in violation of Brady. Petitioner has produced an affidavit from Kelley setting forth his testimony which can be compared to the memorandum to determine the evidence at issue. After examination of such testimony, this Court finds that it fails to support relief on the grounds alleged.
See Petition at 6-7, and Exhibit "D" attached thereto. (SHR at 139).
( See Exhibit "E" to Petition and to petitioner's Memorandum, also referred to herein as the "Kelley Affidavit"; SHR at 141-42).
As with Risley, petitioner claims that Kelley's intimate knowledge of petitioner's background would have been favorable and material to his defense as tending to prove: (1) his drug and alcohol addiction, and (2) good conduct while in a structured environment. The findings of the state habeas court, however, establish that this evidence would have been cumulative of other evidence presented at petitioner's trial. Therefore, this claim also fails the materiality test under Brady even if it was suppressed. Strickler, 527 U.S. at 280. Further, this testimony is of a nature that, if true, would have been well within petitioner's knowledge, and therefore could not have been "suppressed" by the prosecution. Brown, 104 F.3d at 750.
( See State Habeas Findings Nos. 12, 19-25.)
Petitioner points to that portion of Kelley's testimony that raises a potential insanity defense. Kelley, a Methodist minister and former teacher, counselor, and school administrator, stated in his affidavit that:
When alcohol or drugs are involved, Tim confided that he was not very aware of anything. With drugs and alcohol, or in search of drugs or alcohol, Tim could not distinguish between right and wrong. When drugs and alcohol were involved, I don't believe Tim had the ability to control himself.
(emphasis added) (Kelley Aff. ¶ 5; SHR at 141-42). Initially, this affidavit indicates Kelley's information was largely hearsay and was gained from his conversations with petitioner, rather than by independent investigation, or personal knowledge. Therefore, it was within petitioner's knowledge and could not have been withheld from petitioner in violation of Brady. Brown, 104 F.3d at 750. More critically, it also fails to indicate the kind of psychiatric or psychological qualifications necessary to make Kelley's opinion testimony admissible at petitioner's trial. Griffith v. State, 983 S.W.2d 282, 287-88 (Tex.Crim.App. 1998); Hogan v. State, 496 S.W.2d 594 (Tex.Crim.App. 1973). Those hearsay statements from petitioner could not otherwise have been admitted before the jury by petitioner's own attorneys. Tex. R. Evid. 801(e)(2), 802 (indicating that a party's extra-judicial statements are generally hearsay unless offered by the opposing party).
Whether or not inadmissible evidence can form the basis of a Brady violation is not settled. The Supreme Court has not clearly specified how to deal with the inadmissible evidence in Brady claims, which the Fifth Circuit Court of Appeals has described as "a matter of some confusion in federal courts." Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999). Therefore, this does not qualify as a "clearly established Federal law, as determined by the Supreme Court" upon which the state court's decision could be found "contrary to" or "an unreasonable application of as required by 28 U.S.C. § 2254(d)(1) in order to grant relief on habeas corpus.
Even if otherwise admissible, such testimony could not have formed the basis of any defense to petitioner's guilt on the charges in state court. Under Texas law, voluntary intoxication does not constitute a defense to the commission of a crime. See Tex. Pen. Code Ann. § 8.04 (Vernon 1994). Neither does evidence of voluntary intoxication negate the element of specific intent required for capital murder. See Raby v. State, 970 S.W.2d 1, 6 (Tex.Crim.App. 1998), cert., denied, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998). Although involuntary intoxication may absolve one of criminal culpability, see Torres v. State, 585 S.W.2d 746, 749 (Tex.Crim.App. 1979), Texas courts have consistently ruled that alcoholism may not be the basis for an involuntary intoxication defense. See Shurbet v. State, 652 S.W.2d 425, 428 (Tex.App.-Austin 1982, no pet.); Heard v. State, 887 S.W.2d 94, 98 (Tex.App.-Texarkana 1994, pet. ref d) (referring to Shurbet for support); Hernandez v. Johnson, 213 F.3d 243, 249-50 (5th Cir. 2000), cert. denied, 531 U.S. 966, 121 S.Ct. 400, 148 L.Ed.2d 308 (2000). Instead, such evidence of voluntary intoxication could only have been relevant in mitigation, where ample evidence was already admitted and where this evidence would have been cumulative. The state findings are not only supported by the record, but in fact, more extensive expert evidence was admitted on this issue during the punishment stage of petitioner's trial. Therefore, the Kelly evidence does not satisfy the materiality requirement of a Brady claim. Strickler, 527 U.S. at 280. For any one or all of these reasons, petitioner's claim cannot form the basis for federal habeas corpus relief.
State Habeas Findings No. 21 and 22 accurately set forth the type of evidence presented at the trial on these issues. (SHR at 263.)
Petitioner's first and second grounds for federal habeas corpus relief should be denied.
B. Claims relating to Intoxication during Confession
In his third and fourth grounds for federal habeas corpus relief, petitioner alleges his rights under the Fifth and Fourteenth Amendment to the Constitution were violated by the admission of his written confession which he claims was involuntary because of his intoxication, hi his third ground for relief, petitioner asserts his confession was involuntary because of his claimed intoxication and that it should not have been admitted, hi his fourth ground, petitioner complains the state's evidence that his conviction was freely and voluntarily made was false, and violated his due process rights under the Fourteenth Amendment.
Respondent raises a procedural bar to petitioner's third ground, asserting that petitioner failed to make a contemporaneous objection at the trial to the admission of this evidence and is now barred from post-conviction review of such issue. This Court's determination will depend upon the basis the state court expressed in making its decision to deny relief. A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case "clearly and expressly" states that its judgment rests on a state procedural bar. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985); Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).
Trial counsel did seek to suppress petitioner's confession, but on grounds other than intoxication, i.e., illegal arrest.
In this case, the state court denied petitioner's claim on the merits, and then concluded in the alternative that he was procedurally barred from raising it in post-conviction habeas proceedings because he failed to make an objection on this basis at his trial or on appeal. (State Habeas Findings Nos. 5-6; SHR at 268.) "The rule in this circuit is that, when a state court bases its decision upon the alternative grounds of procedural default and a rejection of the merits, a federal court must, in the absence of good `cause' and `prejudice,' deny habeas relief because of the procedural default." Cook v. Lynaugh, 821 F.2d 1072, 1077 (1987). Petitioner has not addressed Respondent's assertion of the procedural bar, and has not presented any cause justifying his failure to raise this ground for objecting to the admission of his confession at his trial other than the implicit nature of his claim that such evidence was not disclosed to him. However, as discussed above, such information would ordinarily be of a nature that would have been known by petitioner. Therefore, even though the state court ruled in the alternative, finding both an independent state procedural bar for petitioner's failure to raise such grounds at his trial, as well as reaching the merits of the claim that his confession was involuntary due to his intoxication, the federal court is bound by the procedural bar and will not reach the merits of the claims made in petitioner's third ground for habeas corpus relief. See Harris, 489 U.S. at 264.
Respondent does not specifically assert the procedural bar to prevent this Court's consideration of petitioner's fourth ground for habeas corpus relief, nor do the state court findings explicitly rely upon a procedural ground in disposing of this claim in state court. Therefore, petitioner's fourth ground for relief is not procedurally barred. See Harris, 489 U.S. at 261-62; Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999).
The known solicitation of false testimony by the State may constitute a violation of due process. Barrientes v. Johnson, 221 F.3d 741, 752-53 (5th Cir. 2000), cert. dism'd, 531 U.S. 1134, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001); Giglio v. United States, 405 U.S. 150, 153-54 (1972). To establish a due process violation based on a State's knowing use of false or misleading evidence, a habeas petitioner must show (1) the evidence was false, (2) the evidence was material, and (3) the prosecution knew that the evidence was false. Barrientes, 221 F.3d at 753. Evidence is false if it is specific misleading evidence important to the prosecution's case in chief. Id. False evidence is material only if there is any reasonable likelihood that it could have affected the jury's verdict. Id.; Nobles, 127 F.3d at 415.
Petitioner alleges the testimony of Sergeant White is false in that he testified that petitioner gave a knowing and voluntary waiver of his rights and confessed to the murder. As set out above, such confession occurred prior to petitioner's arraignment before a state judge and subsequent booking into the Randall County Jail, In addition to the trial record, both Sergeant White and Cindy Risley testified at the federal habeas evidentiary hearing. Nothing has been presented which establishes by a preponderance of the evidence or by any other standard that Sergeant White committed perjury. Even if the opinion testimony of another witness could establish perjury, Risley does not attempt to describe petitioner's condition during his interview with Sergeant White. Further, Risley's testimony is not as convincing as is the testimony of Sergeant White. As discussed under ground of error number one previously, Sergeant White's contact with petitioner was based upon a much longer, more intense, more direct conversation and contact with the petitioner than was Ms. Risley's contact during the jail booking procedure. Therefore, petitioner has failed to satisfy the first element of a Giglio claim (that the evidence was false) and the third element (that the prosecution knew it was false). Regarding the second element of a Giglio claim, that the evidence was material, the state habeas court found that petitioner's guilt was proven beyond a reasonable doubt by evidence admitted other than his confession to Sergeant White. This finding is supported by the record before the state court. 28 U.S.C. § 2254(d)(2), (e), and (f). Since petitioner also confessed to two other people besides Sergeant White (Cindy Risley and Jeane Autry) as shown by the testimony admitted during the punishment stage of petitioner's trial, it would not have made a difference in the jury's decision to impose the death penalty either, and petitioner's allegations also fail to establish materiality. Giglio, 405 U.S. at 154. Petitioner would have to prove all three elements, and these factual allegations, even if they are taken as true, fail to establish even one of these elements. Petitioner's fourth ground of error should be denied.
SOF XV at 272; petitioner's Memorandum at 9, 17.
SOF XV at 85-88 (under the name Jean Roper).
C. Claims of Ineffective Assistance of Counsel relating to Petitioner's Intoxication
In his fifth and sixth grounds for federal habeas corpus relief, petitioner alleges his rights to the effective assistance of counsel under the Sixth Amendment to the Constitution were violated by the failure of his attorney to investigate and present evidence of his intoxication either in mitigation of his punishment and/or in order to prevent the admission of his confession, as set out in his first four grounds for relief.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. The two-pronged standard by which a claim of ineffective assistance of counsel is measured is set forth in Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The first prong of Strickland requires the defendant to show that counsel's performance was deficient. Strickland, 466 U.S. at 698. The defendant must show that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. The second prong requires the defendant to show prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
Petitioner's claims of ineffective assistance of counsel must be considered in relation to the defense of the case as a whole, and the overall trial strategy. Trial counsel's defensive theory focused on a most critical issue, i.e., whether the offense committed by petitioner Titsworth was capital murder or non-capital murder. Petitioner was charged with capital murder alleging he committed murder during the course of attempting to commit and committing robbery. If petitioner's trial counsel were successful in convincing the jury that the offense committed was not capital murder, i.e., that it was not a murder committed during the course of robbery, but instead, that petitioner Titsworth committed the murder of his victim, a woman with whom he had been living, as part of a domestic incident or "lover's spat," and that the murder was completed prior to and not during the course of any subsequent robbery or theft, then there existed a possibility that the jury might find petitioner guilty of murder as opposed to capital murder. Such a trial strategy, if successful, would have avoided the death penalty. The Texas Court of Criminal Appeals recognized this to be petitioner's theory at trial. Review of the trial transcript by the undersigned reflects that the evidence very well could have supported such an argument, had the jury chosen to adopt it. Therefore, even though there was sufficient evidence to support the jury's verdict that petitioner committed the murder during the course of a robbery, trial counsel's strategic theory was reasonable.
With respect to his claims regarding mitigation evidence, the record is replete with evidence of petitioner's drug addiction and his intoxication at the time of the murder and continuing afterwards. Petitioner's attorney presented expert testimony more probative of mitigation than the evidence now presented on habeas review. Therefore, petitioner has not shown that his attorney failed to adequately present this issue at his trial. But even if he had shown a deficiency in his attorney's performance, the mitigation evidence now tendered would not satisfy the prejudice prong of Strickland, particularly in light of the evidence presented at trial, including the evidence that petitioner returned to the victim's trailer to steal more property, extending this criminal episode over a period of days.
(See State Habeas Findings Nos. 7, 21, 22, 24, and 25; SHR at 258, 263-64.)
(See State Habeas Findings Nos. 6, 11, 12, 14, 21, 22, 24, and 25; SHR at 258-60, 263-64.)
See Confession, Exhibit "C" attached to Petition; SOF XV at 87; State Habeas Finding No. 18; SHR at 261-62.)
With respect to petitioner's allegations that his attorney failed to "investigate and present" the evidence of his intoxication in order to prevent the admission of his confession, the totality of the circumstances do not indicate a failure to investigate this issue. At the evidentiary hearing before this Court, petitioner's state trial counsel, Mr. Hale, expressed an inability to remember his actual conduct or strategy during petitioner's pretrial hearing, and critically, Mr. Kale's testimony at the evidentiary hearing conflicted with his state habeas affidavit. For example, when testifying at the evidentiary hearing, Mr. Hale agreed with petitioner's attorney that Hale raised the issue of petitioner's intoxication in the pretrial hearing because he knew that petitioner's confession was taken at the end of a long drug binge and Hale was trying to find out whether the petitioner was intoxicated. (Hearing at 137-38.) However, in his 1998 affidavit, Hale explained that he did not raise this issue at pretrial because his own interview with his client sufficiently proved to him that it was not a fruitful avenue to pursue. (Hale Aff. at 1-2; SHR at 213-14.) Since the trial record reveals that Hale did not raise this issue at the pretrial hearing (SOF II at 5-89), Hale's 1998 affidavit is clearly more consistent with the record than his testimony elicited at the evidentiary hearing, and this Court resolves this conflict in favor of the state record and the 1998 affidavit before the state trial court on habeas review.
For example, Hale testified "[w]ell, you know. I don't remember. I haven't seen the record and I don't have a copy of it . . ." (Hearing at 139.)
Accordingly, the state trial court findings again show that petitioner's trial counsel acted in accordance with reasonable trial strategy and that he was not deficient. However, even if trial counsel should have more fully investigated this issue, it would not have resulted in a different outcome at the trial. As discussed in Section VIII A. and B. above, Risley's testimony does not require the exclusion of petitioner's confession on the ground of intoxication. See Strickland, 466 U.S. at 694. Therefore, petitioner's fifth and sixth claims for relief should be denied.
D. Claims of Ineffective Assistance of Counsel relating to Petitioner's sanity
In his seventh and eighth grounds for federal habeas corpus relief, petitioner alleges his rights to effective assistance of counsel under the Sixth Amendment to the Constitution were violated by the failures of his attorney to request a copy of psychiatric reports, to object to the State trial court's action withholding such reports, to make a sealed copy of the reports a part of the appellate record, and to request that an independent psychological evaluation be performed for the defense.
Petitioner has not made a sufficient showing to obtain federal habeas relief. The state trial court on habeas review reviewed this evidence in light of the record and made credibility determinations that are entitled to deference in this proceeding. 28 U.S.C. § 2254(e)(1); Valdez, 274 F.3d at 948. These include findings that Dr. Shaw's report included self-serving statements by petitioner contrary to other evidence, including petitioner's own statements to his attorney and others, and that such self-serving statements were not credible. (SHR at 10.) The state court also found that the other evidence, such as Dr. Shaw's conclusions about petitioner's drug and alcohol addiction, as well as his expressions of remorse over the victim's death, were otherwise admitted into evidence through multiple witnesses, and that Dr. Shaw's testimony would therefore have been merely repetitive and/or cumulative. (SHR at 266.) Petitioner has not shown such findings were incorrect. 28 U.S.C. § 2254(e)(1). Therefore, even if petitioner's trial counsel were deficient, such allegations fail to show the second Strickland prong, i.e., prejudice. Petitioner's seventh ground for relief should be denied.
In his eighth ground for relief, petitioner complains of his trial counsel's failure to "raise, in a timely and specific manner, a request for the appointment of a psychiatric expert to assist in the defense of his case and to present testimony." However, the state court record indicates that his counsel did make a motion for such an expert. The trial court denied the motion because the facts before it did not justify such an expert. Even so, petitioner's trial attorney obtained pro bono expert assistance in presenting his mitigation evidence in the punishment stage of the trial. See Titsworth v. State, slip op. at 17. The court-appointed psychiatrist (Dr. Shaw) determined petitioner was competent to stand trial and sane at the time of the offense charged. Further, as stated above, voluntary intoxication was not a defense to the offense in Texas. Kitchens, 190 F.3d at 701. Since both the facts and the law would not have allowed such a defense to the charged offense, petitioner has failed to present allegations capable of proving that his counsel was deficient in failing to obtain an expert on any such defense to his guilt at trial.
Petitionat 16.
See state clerk's trial record, hereinafter "Tr." at 90-94.
Exhibit "I" to Petition.
Petitioner's claim must be viewed in light of counsel's efforts to present a case for mitigation of punishment. As stated above, trial counsel presented ample evidence of petitioner's intoxication and of its affect on his conduct in order to mitigate his punishment. Therefore, counsel was not deficient in developing or presenting his mitigation case. Petitioner's eighth ground for relief should be denied.
E. Claims of Due Process violations injury instructions relating to parole
In his ninth ground for federal habeas corpus relief, petitioner alleges his rights to the due process of law under the Fourteenth Amendment to the Constitution were violated by the refusal of the trial court to define "life" and to instruct the jury on Texas parole law. The trial court on habeas review found this claim procedurally barred because petitioner did not make a contemporaneous objection before the instructions in question were given to the jury. The contemporaneous objection rule has been recognized as an independent and adequate state ground to bar just such a claim as this. The Fifth Circuit Court of Appeals in Soria v. Johnson, 207 F.3d 202, 242 (2000), cert, denied, 530 U.S. 1286, 121 S.Ct. 2, 147 L.Ed.2d (2000) held that the contemporaneous objection rule properly forecloses state review in Texas courts of such complaints and thereby procedurally bars such complaints from federal habeas review. The similarities to the instant case are clear from the opinion noting that
Soria admits, however, that he did not seek from the trial court an instruction on the parole laws of Texas. Indeed, Soria did not object to the trial court's instruction to the jury "not to consider or discuss any possible actions of the Board of Pardons and Parole or the Governor nor how long this defendant will be required to serve on a sentence of life imprisonment."Id.
As in Soria, petitioner's claim is barred by procedural default because petitioner has not shown either sufficient cause for his default and prejudice resulting therefore, or that such claim must be reviewed to prevent a manifest injustice. Id. at 243. But as further observed by the Court of Appeals, "Even if the claim was not procedurally barred, because our precedent makes clear that the Constitution allows Texas `to keep from juries evidence or instructions of parole eligibility,' this claim would afford Soria no relief." Id., Similarly, petitioner's claim would afford him no relief, and his ninth ground of relief must be denied.
F. Claims of Due Process violations relating to expert psychiatric assistance
In his tenth and eleventh grounds for federal habeas corpus relief, petitioner alleges that his rights to due process of law under the Fourteenth Amendment to the Constitution were violated by trial court rulings that effectively deprived him of access to expert psychiatric assistance.
Petitioner's tenth ground for relief specifically complains of the trial court's order sealing and refusing to release the psychiatric report to petitioner. The state court held that petitioner's "failure to request a copy of the report or object to the trial court's failure to provide him a copy of the report `forfeited' any statutory right he may have had to a copy of it" citing its appellate rule 52(a). Titsworth v. State, slip op. at 16. This is a contemporaneous objection rule, a violation of which is sufficient to preclude state review and to constitute a procedural bar to federal habeas review. Hughes, 191 F.3d at 614. Petitioner has failed to provide any justification to avoid the imposition of this procedural bar. Therefore, this ground is procedurally barred from review in this Court. Even if it were not barred, petitioner's argument that he was entitled to such information as a matter of state law could not form the basis of federal habeas corpus relief. Further, the state habeas record reflects counsel's decision not to seek such reports may very well have been a strategic decision since counsel had an opinion as to their content.
Title 28 U.S.C. § 2254(a) authorizes such relief for a state inmate "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
Petitioner's eleventh ground for relief complains of the trial court's failure to provide the funds necessary for a forensic psychiatrist to assist in petitioner's defense. However, as found by the state court, petitioner did not make the requisite showing to entitle him to such assistance, and waived any relief to which he may have been entitled. Titsworth v. State, slip op at 18-19. Again, this constitutes a procedural default on the state contemporaneous objection grounds that he failed to make a timely request under state law. That constitutes an adequate and independent state ground sufficient to bar review in this Court.
The Texas Court of Criminal Appeals stated that "[w]e first decide as a matter of State law, that appellant raised his Ake claim in a nonspecific and untimely manner. See Tex.R.App.Proc. 52(a)." Titsworth v. State, slip op. at 18.
However, even if the state court did not deny review on independent state grounds, petitioner has still not shown that he has been deprived of his right to expert assistance on this issue as set forth by the Supreme Court in order to obtain such relief as a matter of federal Constitutional law. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The psychiatric reports produced by petitioner contradict any claimed insanity defense, and petitioner's trial counsel adequately presented his mitigation case to the jury at punishment with expert assistance concerning the effects of his drug use and intoxication. Therefore, even if such claim was not barred, petitioner's allegations would not establish a right to federal habeas relief. Petitioner's tenth and eleventh grounds for relief should be denied.
"Exhibit "I" to Petition.
( See State Habeas Findings, No. 22; SHR at 263.)
IX. CONCLUSION
The undersigned is of the opinion that the conviction and death penalty in this case were not obtained in violation of the United States Constitution. Further, and particularly under the AEDPA deference standard now in place, federal habeas relief is not warranted. As alluded to previously, the difficulty with this case is whether the offense petitioner committed was murder or capital murder. This Court, however, cannot substitute its judgment for that of the jury's.
X. RECOMMENDATION
Petitioner has failed to make a substantial showing of the denial of a federal right. The state court adjudication on the merits did not result in a decision that was contrary to, or which involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. The state court adjudication has not been shown to have 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. Petitioner's petition for a writ of habeas corpus should be DENIED.
XI. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within fourteen (14) days after its filing. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file written objections to these proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en bane).
IT IS SO RECOMMENDED.