Opinion
No. 3:01-CV-0472-K
March 10, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
A state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.
II. PARTIES
Petitioner, Gregory Edward Wright, is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-ID). Respondent 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. Wright, F97-01215-RJ (Criminal District Court No. 3 of Dallas County, Tex. December 10, 1997). The case was appealed to the Texas Court of Criminal Appeals, and the Court of Criminal Appeals affirmed the conviction and death sentence in a published opinion. Wright v. State, 28 S.W.3d 526 (Tex.Crim.App. 2000), cert. denied, 531 U.S. 1128 (2001). Petitioner filed a state application for writ of habeas corpus on July 28, 1999. The Court of Criminal Appeals denied relief in an unpublished order. Ex parte Wright, No. 46, 451-01 (Tex.Crim.App. September 13, 2000).
Petitioner filed his federal petition for writ of habeas corpus on January 18, 2002, Respondent filed an answer on September 3, 2002, and furnished the state court records, and Petitioner filed a reply on February 18, 2003.
IV. RULE 5 STATEMENT
Respondent states that Petitioner has failed to exhausted his state court remedies with respect to his first through ninth, his eleventh, a portion of his thirteenth, and his fourteenth grounds for relief. Respondent asserts that Petitioner did not address these claims either on direct appeal or in his state writ of habeas corpus. Nonetheless, Respondent asserts that these claims should also be denied on their merits pursuant to 28 U.S.C. § 2254(b)(2)..
An application for a writ of habeas corpus may be denied on its merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. 28 U.S.C. § 2254(b)(2) (West 2001).
V. ISSUES
Petitioner raises the following eleven issues in fourteen claims for relief:
A. The State violated Napue v. Illinois by creating the false impression that state witness Llewellyn Mosley did not have any assurances from the State that he would not be prosecuted if he testified at trial (ground one);
B. The State violated Petitioner's due process rights by suppressing evidence of the deal made with Mr. Mosley by the State in exchange for his testimony against Petitioner (ground two);
C. The State violated Petitioner's due process rights when it suppressed the existence of Jerry Causey and his statement that John Adams had confessed to the murder for which Petitioner was convicted (ground three);
D. The State violated Petitioner's due process rights by suppressing a statement and a 911 call made by Daniel McGaughey (grounds four and five);
E. The State violated Napue v. Illinois by knowingly presenting false testimony by its fingerprint expert, James Cron (ground six);
F. The State violated Napue v. Illinois by knowingly presenting evidence in a false light regarding the shack where Petitioner lived (ground seven);
G. The State violated Petitioner's due process rights by suppressing materials belonging to John Adams found in the shack (ground eight);
H. The cumulative effect of the prior eight claims deprived Petitioner of his due process rights and his right to a fair trial (ground nine);
I. Petitioner's constitutional right under the Sixth Amendment to confront witnesses was violated when the trial court permitted the State to admit into evidence a statement given by John Adams inculpating Petitioner in the murder (ground ten);
J. The State violated Napue v. Illinois by knowingly creating a false impression by introducing Petitioner's co-defendant's written statement into evidence (ground eleven); and
K. Petitioner was denied effective assistance of counsel in various respects at both the guilt and the punishment phases of his trial (grounds twelve through fourteen).
Petitioner also contends in a fifteenth ground for relief that none of his claims should be considered procedurally barred because, pursuant to Schlup v. Delo, 513 U.S. 298 (1995), he has established that, because of the asserted constitutional violations, he was convicted of capital murder even though he is probably actually innocent. Finally, Petitioner contends that he is entitled to an evidentiary hearing.
VI. STANDARD OF REVIEW
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C. § 2254(d) (2000).
Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-3 (2000). With respect to the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. Under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal precedent from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
This statute applies to all federal habeas corpus petitions which, as with the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
VII. FACTUAL BACKGROUND
The evidence presented at trial established that sometime during the early morning hours of March 21, 1997, the victim Donna Vick was stabbed to death in her DeSoto, Texas home. Vick was found lying on her back in her bed, covered with a bedspread with pillows covering her head. (R. 45:209-10). The autopsy revealed that she had seven major stab wounds and one major cut on her left shoulder, chest, and throat. Vick also had several defensive wounds to her arms and hands. (R. 44:90-3, 100-04, 110). The medical examiner testified at trial that Vick could have been stabbed and cut by one or more knives. (R. 44:116, 118). A fingerprint found in blood on one of the pillowcases was identified as belonging to Petitioner. (R. 47:98-99). Lying on top in a trash can in the kitchen, near an empty Dr. Pepper bottle with Petitioner's fingerprint on it, the police found a note written on a paper towel in black marker that read "Do you want to do it?" (R. 46:127-30, 161).
On March 22, 1997, John Adams turned himself in to police and, along with directing the police to Vick's house, he assisted the police in recovering Vick's automobile, which had been abandoned in Lancaster, Texas, with the spare tire on one of the wheels. (R. 45:192-94). Adams' fingerprints were found on the outside driver's door of the car and, from that automobile, police retrieved a computer printer that was identified as belonging to Vick, a plate and glass that were the same types as those found in Vick's house, and Adams' wallet. (R. 46:131, 132-34, 135-36, 157, 171-72, 193-94, 198). Moreover, blood found on the steering wheel and the dashboard was consistent with Petitioner's blood and inconsistent with both Adams and Vick. (R. 46: 171-72; 47:136-37).
Adams also directed the police towards a shack located in DeSoto, behind a Kmart store, where Petitioner was located and arrested. (R. 45:22). The police seized five pairs of jeans from inside of the shack, along with two knives from inside the shack, one of which was found on the floor and one that was found inside a Bible with Petitioner's name in it. (R. 46:29, 32-6). The police also retrieved a butcher block with knives in it found in the field about twenty feet away from the shack. The knife found on the floor of the shack fit into an empty slot in the butcher block. (R. 46:43-4, 46). Adams also led the police to a knife found sticking in the ground on the creek bed about twenty feet from the butcher block. (R. 46:97).
DNA testing on the knife found in the field revealed that blood on the knife was consistent with Vick's blood and inconsistent with either Petitioner or Adams. (R. 47:140). DNA testing performed on blood found underneath the handle of the knife from the floor of the shack excluded both Petitioner and Adams as contributors, but did not exclude Vick. (R. 48:9-14). One of the pairs of jeans seized from the shack, with the brand name Umen, had substantial blood stains in the crotch area and on the tops and middle areas of both legs, while other jeans had some blood on them. (R: 47:31-2, 53-6). DNA testing was conducted on the jeans seized from the shack, as well as the clothing that both Adams and Petitioner were wearing when arrested. The blue sweatpants worn by Adams when he was arrested, as well as one of the pairs of jeans found in the shack, had blood on them that matched Adams' DNA and did not match either Petitioner or Vick,. The blood found on the Umen jeans was consistent with Vick's blood and inconsistent with either Petitioner or Adams. (R. 47:146). The shack also contained numerous empty cans of gold spray paint and a plastic bag with gold paint in it. Also, several of the pairs of jeans, including the Umen jeans, had gold paint on them. (R. 46:37, 38-9, 142-43, 155-56). The blue jeans that Petitioner was wearing when arrested had gold paint at the bottom of the two legs, but Adams' clothing had no gold paint on it. (R. 46:151-55). One of the investigating police officers testified that he had known people who had inhaled paint in order to get high by spraying paint into a bag, placing the bag by their face, and inhaling from the bag. (R. 46:149-50).
A friend of Petitioner named Donald Cole testified at trial that he saw Petitioner and Vick together at a VFW lodge at around 10:00 or 11:00 p.m. on March 20, 1997. Cole knew Petitioner because Petitioner would panhandle near a Texaco where Cole worked and would occasionally help Cole clean-up after work. Petitioner had told Cole in the past that he had a "hooch" where he lived in a wooded area by the Kmart store. (R. 45:55-6, 58-9). At the lodge that evening, Petitioner was wearing dark colored jeans that looked new, unlike the jeans he usually wore. Cole spoke with Vick about the fact that Petitioner, who was normally homeless, was staying at her house at that point and doing work around the house, and Vick and Petitioner talked about picking up Petitioner's friend "Zig." (R. 45:58-9, 60-3). Cole also testified that he had seen gold paint on Petitioner's clothes and face before. (R. 45:82).
Sylvia Parson testified that she knew Petitioner because he associated with her brother, who was also homeless. Parsons also testified that Petitioner had stayed at her house in the past, that he received his mail at her house, and had brought a man nicknamed ZigZag to her house one time. Petitioner also told her that he was living in a shack by Kmart. (R. 45:29-45, 46, 49). Parsons further testified that Petitioner called her when he was in jail and asked her to get his clothes from the shack behind the Kmart, which she did not do. (R. 47:68).
Llewellyn Mosley testified that he was acquainted with both Petitioner and Adams, he knew them by the names "Maverick" and "ZigZag," and he had met them because they were part of a group of homeless men that he would let stay at his house occasionally. (R. 45:104-05). Mosley testified that Petitioner and a white woman came to his house at around 5:00 p.m. on March 20, 1997, in a white Chrysler, Petitioner bought some crack cocaine from Mosley's neighbor JT, and Petitioner and Mosley smoked the cocaine. (R. 45:103-08, 130). He further testified that the two returned later that evening at around 10:30 or 11:00, picked up "ZigZag," and Petitioner and Adams returned at around 4:00 a.m., with Petitioner driving the Chrysler, which at that point had a flat tire. (R. 45:131-34). The two told Mosley that they wanted to "get rid of" some stuff, things that Petitioner said were from a woman in DeSoto, and they opened the trunk, which contained a television, a weed eater, a rifle, a color printer, and a microwave. (R. 45:148-49). Mosley also testified that Petitioner and Adams traded some of the items in the trunk to his neighbor JT in exchange for crack cocaine, which they then smoked at Mosley's house. (R. 45:153, 156). Mosley put the spare tire on the car while the two men took the things into his house. The rifle, computer printer, and microwave were identified at trial as belonging to Vick, and a flat tire and wheel found by the police in an empty lot next to Mosley's house were the same brand and type as those on Vick's car. A weed eater identified as belonging to Vick was retrieved from Mosley's house when he was arrested. (R. 44:135-36; 45:189-90; R. 46:52-4; 138-39).
The jury convicted Petitioner of committing a murder during the course of committing or attempting to commit a robbery. (Transcript at 260, 264). The jury was instructed that John Adams was an accomplice as a matter of law, but the jury was required to find beyond a reasonable doubt that Petitioner killed the victim, and the jury was not permitted to convict Petitioner as a party to the crime. (Tr.:259-61).
VIII. PROCEDURAL ISSUES
Respondent asserts that Petitioner is procedurally barred from raising all but his twelfth and part of his thirteenth claims in federal court. Specifically, Respondent contends that Petitioner is procedurally barred from raising his first through ninth, his eleventh, a portion of his thirteenth, and his fourteenth claims because they were not exhausted at the state level. Respondent further contends that Petitioner is procedurally barred from raising his tenth claim because it was denied at the state level on an independent and adequate state law ground. Petitioner does not appear to contest that most of his claims were not raised on the state level or that his tenth claim was denied on direct appeal on an independent and adequate state law ground. Instead, Petitioner asserts that he has overcome any procedural bar to these claims. Specifically, in his fifteenth ground for relief, Petitioner contends that these claims are not procedurally barred because he has presented new evidence establishing his actual innocence as required under Schlup v. Delo, 513 U.S. 298 (1995).
A review of the records in this case reveals that Petitioner did not raise his first through ninth, his eleventh, a portion of his thirteenth, and his fourteenth claims at the state level. Procedural default occurs when a petitioner fails to exhaust all available state remedies and the state court to which he would be required to petition would now find that the claim is procedurally defaulted. Bledsoe v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999). And indeed, were petitioner's unexhausted claims now brought in a subsequent state writ of habeas corpus, the Court of Criminal Appeals would consider these claims to be procedurally defaulted under Article 11.071 § 5 of the Texas Code of Criminal Procedure, which prohibits a claim from being raised in a subsequent habeas application unless: 1) it could not have been raised in the previous application because the factual or legal basis was unavailable at the time; or 2) the claim contains sufficient facts establishing that, but for a violation of the United States Constitution, no rational juror would have found petitioner guilty or would have answered the punishment issues in the State's favor. See TEX. CODE CRIM. PROC. ANN. art 11.071 § 5(a) (Vernon Supp. 1999). The legal and factual claims presented in the grounds for relief that Petitioner failed to exhaust on the state level appear to have been available to him at the time he filed his state habeas application, and Petitioner does not argue otherwise. And, Petitioner has made no attempt to allege, much less prove, that his unexhausted claims contain sufficient facts establishing that, but for a federal constitutional violation, no rational juror would have found him guilty or sentenced him to death.
With regard to his tenth claim ground for relief, alleging that Petitioner's constitutional right under the Sixth Amendment to confront witnesses was violated when the trial court permitted the State to admit into evidence a statement given by co-defendant John Adams inculpating Petitioner in the murder, the Court of Criminal Appeals denied this claim when it was raised on direct appeal on the basis that the defense had failed to raise an objection on this basis at trial and had thus waived the argument on appeal. Wright, 28 S.W.3d at 536. The Supreme Court has held that, when a state prisoner has defaulted his federal claim when he raised it in state court pursuant to an independent and adequate state procedural rule, federal habeas review is barred unless the prisoner can establish either cause for the default as well as actual prejudice as a result of the alleged violation of federal law or that failure to consider the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). To satisfy the independent and adequate requirements, the dismissal of a claim must "clearly and expressly" indicate that it rests on state grounds which bar relief, and the bar must be strictly and regularly followed by state courts and applied to the majority of similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001), citing Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995). The Fifth Circuit has held that the Texas contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review of a claim. Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999). The Court of Criminal Appeals has also ruled that an objection at trial is need to preserve even constitutional errors for appellate review. See Allridge v. State, 850 S.W.2d 471 (1991). Petitioner's tenth ground for relief was therefore denied at the state level on the basis of an independent and adequate state ground.
Accordingly, Petitioner is procedurally barred from raising all but his twelfth and a portion of his thirteenth grounds for relief in a federal petition for writ of habeas corpus unless he can establish either cause and prejudice for the failure to raise these unexhausted claims at the state level or that the failure to consider the claims on the merits would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722 (1991); Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999). Petitioner asserts that should this Court fail to consider these claims on their merits, it would result in a fundamental miscarriage of justice.
In Schlup v. Delo, 513 U.S. 298, 327 (1995), the Supreme Court held that a habeas petitioner can overcome a procedural bar to reach the consideration of the merits of his constitutional claims via the fundamental miscarriage of justice exception if he establishes that a constitutional violation has probably resulted in the conviction of one who is actually innocent. And, in order to prove such an actual innocence claim, a petitioner must present new, reliable evidence not presented at trial that establishes that, more likely than not, no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. Id at 327. Examples of such new evidence that may establish factual innocence are exculpatory scientific evidence, trustworthy eyewitness accounts, credible declarations of guilt by another, and critical physical evidence not presented at trial. Id. at 324; Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999).
Petitioner contends that he is able to establish an actual innocence claim sufficient to overcome the procedural bar to all of these claims. Petitioner asserts that his new evidence of his actual innocence consists of: 1) exculpatory scientific evidence regarding the bloody fingerprint found at the crime scene; 2) affidavits from Petitioner's two defense attorneys averring that the jeans that the State contended that Petitioner wore when he murdered the victim were in actuality too small for him; 3) an affidavit from Daniel McGaughey, who was "hidden" from the defense; 4) an affidavit from Jerry Causey, a man to whom co-defendant Adams allegedly confessed; 5) an affidavit from another inmate to whom Adams allegedly confessed; and 6) testimony from Adams' subsequent capital murder trial which undermines the testimony of State's witness Llewellyn Mosley. (Petition at 15, 111-12). Petitioner alleges that the cumulative effect of this evidence meets the actual innocence standard set forth in Schlup v. Delo such that it would be a fundamental miscarriage of justice not to consider his barred claims on their merits.
Some of the evidence alleged to be new evidence of Petitioner's innocence is not new. Specifically, the two affidavits from Petitioner's trial attorneys Karo Johnson and Paul Brauchle stating their belief that the brand name Umen jeans found in the shack where Petitioner was arrested were too small to fit Petitioner is not new evidence. ( See Petitioner's Exhibits #19, 20). To the contrary, defense counsel argued in summation that the Umen jeans, which had several large blood stains on them, were too small for Petitioner but were the same size as the jeans found in the shack that most likely belonged to his co-defendant Adams because they had Adams' blood on them. (R. 49:38-9).
In contrast, the State argued in closing that the Umen jeans belonged to Petitioner because: 1) they looked newer than the other jeans in the shack and Donald Cole testified that he saw Petitioner in new or newer jeans; 2) they had gold paint on them; 3) the jeans which Petitioner was wearing when arrested had gold spray paint on them; 3) there were numerous empty cans of gold paint in the shack where Petitioner was arrested; 4) Donald Cole testified that he had seen gold paint on Petitioner's clothes before; 5) the clothes that Adams wore when he was arrested had no paint on them; and 6) Petitioner had called Sylvia Parsons from jailed and asked her to remove his clothes from the shack. (R. 49:55-7).
Other of this new evidence is not, in essence, new because it does not differ substantially from that evidence that was either presented at trial or was already known by the defense at the time of trial. In that regard, the affidavit from Daniel McGaughey that has been submitted as an exhibit by Petitioner does not differ substantially from the statement McGaughey gave to the police. During Petitioner's trial, a hearing was held regarding a police report the defense received during trial from the State regarding Daniel McGaughey, the man who called 911 on Adams' behalf. (R. 46:71). In an affidavit submitted as an exhibit with Petitioner's federal petition, McGaughey states that, in March of 1997, a man came into the video store where he worked on Industrial Boulevard and asked him to call the police. When McGaughey asked why, the man stated that there had been a murder in DeSoto and he could not live with himself anymore. (Petitioner's Exhibit #7). In his original signed statement to the police, McGaughey gave essentially this same information, stating that on the evening of March 22nd, a man asked him to call the police, saying that a murder had taken place in DeSoto and he could not live with himself anymore. (Exhibit #6). McGaughey's new affidavit, signed by McGaughey in December of 2001, is not new evidence that establishes Petitioner's innocence.
Notes taken by the police after speaking to McGaughey purportedly documenting what McGaughey told the police do differ from McGaughey's statement and affidavit, in that these notes indicate that McGaughey told the police that Adams had told him that he had murdered someone in DeSoto and wanted to turn himself in. (Petitioner's Exhibit #5). However, defense counsel were aware of these notes at the time of Petitioner's trial, so they are also not new evidence. (R. 46:81).
Likewise, the new evidence regarding Llewellyn Mosley is not, in fact, new. Petitioner asserts that there is new evidence that Mosley had a deal with the State that he would not be prosecuted for any crimes if he testified for the State. At Petitioner's trial, after consulting with an attorney, Mosley represented to the trial court that he wished to testify without such an agreement. (R. 45:139-41). Petitioner has submitted testimony given by Kent Traylor, Mosley's attorney, at John Adams' subsequent trial as evidence that there was such a deal, suggesting that this information would have effectively impeached Mosley's testimony at Petitioner's trial. (Petitioner's Exhibit #17). This excerpt from Adams' trial reflects, however, that Mosley's attorney testified that there was no express or implied deal between Mosley and the State, only at most an offer from the State. (Exhibit #17). Accordingly, this evidence is not new evidence that helps to establish Petitioner's innocence.
The affidavits from two people whom Adams allegedly confessed to and the affidavit from a fingerprint expert regarding the bloody fingerprint found at the murder scene is new evidence that was not presented at Petitioner's trial. In his affidavit, Charles Nealy states that he was in a holding cell in the Dallas County jail with Adams in December of 1998. Nealy further states that Adams admitted to him that Petitioner was innocent and that Adams killed the victim by himself while Petitioner was eating in the other room of the house. (Petitioner's Exhibit #10). In his affidavit, Jerry Causey states that in March of 1997 Adams came to his house. Causey further states that Adams told him that the car that Adams was driving was belonged to the "bitch" that he killed. Causey also states that he heard Adams tell a third person that he had killed before and would kill again. (Exhibit #8). Finally, in his affidavit, Tom Ekis, a forensic scientist, states that he was retained by defense counsel at the time of Petitioner's trial and reviewed the bloody fingerprint that the State's fingerprint expert identified as belonging to Petitioner. Ekis further states that he attended the trial during the testimony of the State's fingerprint expert, discussed with the State's expert, James Cron, his findings in the case, and consulted with defense counsel. Finally, Ekis states in his affidavit that, had he been called as a witness, he would have testified that, in his opinion, the bloody print lacked sufficient clarity to be identifiable to Petitioner or any other person and that James Cron's testimony regarding the points of comparison between the two prints was incorrect. (Petitioner's Exhibit #14).
Considering all of this new evidence aggregately, it is not sufficient to establish that, more likely than not, no reasonable juror would have found the petitioner guilty beyond a reasonable doubt had this evidence been presented at trial. First, with regard to Jerry Causey's affidavit, in which he states that Adams confessed to killing a woman, this evidence is not inconsistent with Petitioner's guilt. In fact, the State argued at trial that Petitioner and Adams killed the victim together. (R. 49:48). Second, with regard to Charles Nealy's affidavit, while in this affidavit Nealy states that Adams told him that Petitioner did not murder the victim, this alleged jailhouse confession, in hearsay form, is not a credible admission of guilt by another that would establish Petitioner's factual innocence. See Dowhitt v. Johnson, 230 F.3d 733, 742 (5th Cir. 2000) (holding that hearsay affidavits, which are considered particularly suspect, regarding a confession allegedly made by a co-defendant were not strong enough evidence to support a claim of innocence under Schlup v. Delo). And finally, with regard to Tom Ekis' affidavit, while this is evidence from a fingerprint expert disagreeing with testimony given at Petitioner's trial, it has not been shown that even had Ekis testified at Petitioner's trial, it is more likely than not that no reasonable juror would have convicted Petitioner. In that regard, James Cron was cross-examined at Petitioner's trial by defense counsel about shortcomings in his identification, including: the fact that two sheriff deputies had previously testified that they did not consider the bloody print to be a comparable print; Cron's inability to illustrate the points of comparison he identified in the print because the print could not be enlarged; and that fact that the print could not be entered into the national fingerprint system because it was not of sufficient quality. (R. 47:114-28). Furthermore, even considering all of this new evidence, there was substantial evidence presented at trial supporting Petitioner's guilt, including: 1) Petitioner was living in and arrested at a shack that contained jeans and a knife with the victim's blood on them inside and a knife with her blood outside nearby; 2) Like the clothes Petitioner was wearing when arrested, the jeans with the victim's blood on them also had gold paint on them; 3) Petitioner had been seen with gold paint on his clothes and face; 4) Petitioner's blood was on the steering wheel and dashboard of the victim's car; 5) Petitioner was seen with the victim the night before her murder; 6) Petitioner was seen in the victim's car the same morning of the murder, trading her belongings for crack cocaine; and 7) a note with the question "Do you want to do it?" was found in the victim's house near a soda bottle with Petitioner's fingerprint on it. All of this evidence supports the jury's verdict that Petitioner murdered the victim and, even considering the new evidence presented with his federal petition, Petitioner has failed to show that, had this new evidence been known at trial, it is more likely than not that no reasonable juror would have convicted him of capital murder. Petitioner has failed to overcome the procedural bar to all but his twelfth and a portion of his thirteenth grounds for relief.
Nevertheless, under 28 U.S.C. § 2254(b)(2), a federal petition for a writ of habeas corpus may be denied on its merits, notwithstanding the petitioner's failure to exhaust state court remedies. See 28 U.S.C. § 2254(b)(2). Accordingly, as this Court has determined that petitioner is not entitled to relief on any of his unexhausted claims, this Court will address all of the unexhausted claims on their merits.
This Court will not, however, address Petitioner's tenth ground for relief on its merits, as it was exhausted on the state level, but was denied on an independent and adequate state law basis.
IX. EXAMINATION OF THE GROUNDS FOR RELIEF
A. Napue v. Illinois Claims
In his first, sixth, seventh, and eleventh claims for relief, Petitioner contends that the government violated Napue v. Illinois, 360 U.S. 264, 269 (1959), because the State knowingly presented false testimony at trial. Specifically, Petitioner asserts that the State violated Napue by creating the false impression at trial that State's witness Llewellyn Mosley did not have a prosecution immunity deal, by knowingly presenting false testimony from a fingerprint expert, by knowingly presenting evidence regarding the shack where Petitioner lived in a false light, and by knowingly presenting evidence in a false light when it introduced co-defendant Adams' statement into evidence. As noted earlier, Respondent contends initially that these claims are procedurally barred, and Respondent further asserts that the claims are without merit.
Applicable Law
The Supreme Court has held that the presentation of false evidence at trial, as well as the admission into evidence at trial of false evidence that, although not solicited, is not corrected, violates a criminal defendant's due process rights, if the reliability of a given witness may be determinative of guilt or innocence. Napue v. Illinois, 360 U.S. 264, 269 (1959); Mooney v. Holohan, 294 U.S. 103 (1935). This is true whether the nondisclosure was intentional or through negligence. Giglio v. United States, 405 U.S. 150, 154 (1972). In order to prevail on a claim that his constitutional rights were violated by the presentation of false testimony, a petitioner must establish not only that the testimony was actually false, but also that it was material and that the prosecution knew it was false. Napue v. Illinois, 360 U.S. at 271. And the Supreme Court has also stated that a new trial is dictated only when the false testimony could, in any reasonable likelihood, have affected the judgment of the jury. Id.
Analysis
1. Mosley's testimonyPetitioner asserts that the prosecution violated Napue when it gave the false impression at trial that state witness Llewellyn Mosley did not have an agreement with the State that he would not be prosecuted if he testified against Petitioner. As support for this claim, Petitioner points to testimony given at John Adams' capital murder trial, several months after Petitioner was convicted and sentenced to death, by Llewellyn Mosley's attorney, Kent Traylor.
Traylor testified at Adams' trial that he and Mosley spoke at Petitioner's trial for between twenty and twenty-five minutes in a witness room at the back of the courtroom. Traylor further testified that he also had a conversation with a member of the Dallas District Attorney's office that day about Mosley, but that there was neither an express nor an implied deal between Mosley and the State that Mosley would not be prosecuted for any crimes he had committed if he testified at Petitioner's trial. During a hearing outside of the jury's presence at Adams' trial, Traylor stated that there was an offer from the State, but he did not elaborate on this statement. (Exhibit #17, Adams Trial, vol 34, pp. 122-26, 133, 136-38).
At Petitioner's trial, Mosley testified on direct appeal that he had a 1988 burglary conviction and a 1990 drug possession conviction. (R. 45: 101-02). He also acknowledged that he smoked crack with Petitioner and John Adams during the early morning hours of March 21, 1997, after the two men obtained crack from Mosley's neighbor JT. (R. 45:156). At a hearing outside of the presence of the jury and after speaking to Kent Traylor, Mosley testified that he understood that the State could possibly charge him with some crime, and he could seek a deal with the State not to prosecute, but that he wanted to go ahead and continue testifying. (R. 45:139-41). During further direct examination, the State asked Mosley whether he had received any deal from the State, and he answered that he had not. The trial court, however, sustained a bolstering objection by the defense to this line of questioning and instructed the jury not to consider Mosley's answer. (R. 45:160-61). Mosley then admitted on cross-examination that he had been to the penitentiary, he hoped that the State would not prosecute him for anything, and he believed at the time that the items that Petitioner and Adams brought to his house were stolen. (R. 45:163-64).
Petitioner asserts that the State knowingly created a false impression that Mosley did not receive any offer or assurance from the State that he would not be prosecuted if he testified against Petitioner. Petitioner further asserts that Kent Traylor's testimony at Adams' trial is evidence that Mosley agreed to testify against Petitioner in exchange for an offer of immunity made by the State not to prosecute him for several crimes that he committed, that Mosley accepted this offer by testifying against Petitioner, and that the State fulfilled its promise by not prosecuting Mosley. Petitioner contends that this false impression was material because, had the jury known that Mosley had accepted an offer of non-prosecution from the State, there is a reasonable likelihood that Petitioner would not have been convicted because Mosley's testimony, especially where it differed from his previous written statement, would not have been believed by the jury.
In the first instance, the record with regard to this claim is difficult to decipher because much of Mr. Traylor's testimony at Adams' trial was constricted because of attorney/client privilege. Moreover, while Mosley did testify at Petitioner's trial that he had accepted no deal from the State for his testimony, his testimony on this issue was successfully objected to by the defense and the trial court instructed the jury not to consider it. Assuming, however, that Mosley's stricken testimony that he had accepted no non-prosecution deal from the State for his testimony was indeed testimony at Petitioner's trial, Petitioner has failed to establish either that this testimony was false or that, even if false, it was material. Mosley testified at Petitioner's trial that he had accepted no deal, and Kent Traylor testified at Adams' trial that there was neither an express nor an implied deal between the State and Mosley. The most that Petitioner has established is that there was an "offer" from some member of the Dallas District Attorney's office. Petitioner has not shown, contrary to his assertions, that this offer was communicated to Mosley, much less accepted. Moreover, the particulars of the offer have not been shown. Without any showing that Mosley had actually accepted any offer from the State, it has not been shown that he lied when he stated that he had no such deal.
Moreover, Petitioner has failed to show any reasonable likelihood that, were this testimony false, it would have affected the verdict of the jury. In that regard, during his testimony Mosley acknowledged his prior criminal convictions, he admitted that he smoked crack cocaine with Petitioner and Adams, he admitted that he suspected at the time that the property Petitioner and Adams brought to his house was stolen, and he admitted that he hoped that the State did not prosecute him. Thus, Mosley hardly presented an unvarnished character to the jury. Furthermore, his testimony was corroborated by the wheel and tire matching the victim's car that were found in the lot next to Mosley's house, the spare tire that was on the victim's car when it was located, and the weed eater that belonged to Vick that was found in his house when he was arrested. See Knox v. Johnson, 224 F.3d 470, 478 (5th Cir. 2000) (holding that any alleged perjured testimony by witness was not material because, in part, the witness' relevant testimony was corroborated by other witnesses' testimony). And, any differences between his testimony at trial and his prior written statement were fully explored on cross-examination by defense counsel. (R. 45:169-74, 184-88). Finally, Mosley did not testify regarding the murder of Vick, but instead testified about the circumstances surrounding Petitioner's visits to his house before and after the murder, including the fact that he saw property in Vick's car that was subsequently traded for crack cocaine, and Petitioner's and Adams' demeanor at the time. Accordingly, whatever impeachment value the alleged non-prosecution agreement between the State and Mosley would have had, Petitioner has not shown a reasonable likelihood that this further impeachment evidence would have impeached Mosley's partially corroborated testimony such that Petitioner would not have been convicted of capital murder. Petitioner's first ground for relief is without merit, and it is recommended that it be denied.
2. Fingerprint testimony
In his sixth ground for relief, Petitioner contends that the State knowingly presented false testimony from its fingerprint expert, James Cron, regarding a fingerprint found at the scene. Specifically, Petitioner asserts that Cron's testimony that the fingerprint found in a blood stain on one of the pillowcases was Petitioner's fingerprint was incorrect because two people he formerly supervised were unable to compare the fingerprint and because Petitioner's own expert, Tom Ekis, asserts that the fingerprint is not of comparable quality.
James Cron testified as a fingerprint expert for the State. With regard to his qualifications as a fingerprint expert, James Cron testified at the trial that he had retired from the Dallas County Sheriffs Office and, at the time of Petitioner's trial, he was working on a consultant basis with regard to crime scene matters. Cron further testified that, when he retired from the Sheriff's Department, he retired as head of the physical evidence section, a section he had headed for twenty-one of his twenty-nine years with the department. He also testified that, prior to working for the Sheriff s office, he had worked for the Dallas Police Department for six years as a civilian employee in the crime scene section, where he concentrated on fingerprint work. (R. 47:86-8). Cron also testified regarding the numerous fingerprint schools he had attended and the numerous classes he had instructed on fingerprint identification. (R. 47:88-9).
Cron was asked by the State to examine several fingerprints obtained at the scene of the murder, including two prints found on two pillowcases on the victim's bed and a print found on a soap dispenser in a bathroom. Cron testified that he could not identify the print found on the dispenser or a palm print on one of the pillow cases because they were not of comparable quality. (R. 47:91-2, 118). He further testified, however, that the print found in blood on the other pillowcase was a print that could be compared to the fingerprints of the known suspects because it had sufficient points of comparison. Cron testified that this print was not Adams' print or Donna Vick's print, but it did match Petitioner's left little finger at ten points of comparison. (R. 47:96, 98, 106, 117).
On cross-examination Cron acknowledged that he could not enlarge the photograph he had taken of the print because, due to the cloth weave of the pillowcase, too much detail was lost when the photograph was enlarged. He further acknowledged that, because the photo was not enlarged, he could only verbally describe the points of comparison to the jury and could not note those points on any enlarged exhibit. (R. 47:114-15, 127-28). And he admitted that he could not classify the print because it was missing its delta and he could not, for that same reason, submit it to the national Automated Fingerprint Identification System (AFIS). (R. 47:111-12, 120). Finally, Cron stated that he was aware that two members of the Sheriff's department, Detectives Jumper and Howell, whom he used to supervise, had earlier testified at Petitioner's trial that they were unable to compare the bloody print to any known prints and that he would have thought that Howell would have been able to do so. (R. 47:123-24).
Petitioner contends that the State knowingly presented false testimony because Cron identified the fingerprint as belonging to Petitioner when his former co-workers whom he supervised were not able to do so, because Cron used only a photograph and did not produce an exhibit or a draft of his findings, and because Cron's opinion is contradicted by the defense expert's opinion. As support for this claim, Petitioner has included as an exhibit an affidavit from Tom Ekis, who was the defense fingerprint expert at Petitioner's trial. In his affidavit Ekis states his own expert opinion that the fingerprint found in blood at the scene was not comparable and that Cron was instead "teasing" out points of comparison between Petitioner's print and the print found at the scene that were not actually there. (Petitioner's Exhibit #14).
Petitioner does not, however, offer any support for his contention that James Cron's testimony about the fingerprint was, in fact, false, much less that the State knew that it was false. Instead, Petitioner points to weaknesses in Cron's testimony that were fully explored by defense counsel when he was cross-examined at trial and to the opinion of another in the field. None of this, however, is evidence that Cron's testimony was false or that the State knew it was false. Moreover, Petitioner fails to acknowledge that, at trial, this same expert was present during Cron's testimony and consulted with defense counsel, presumably aiding them in the cross-examination of Cron. (Exhibit #14; R. 47:100). In summary, Petitioner has pointed to expert testimony that he does not believe to be true and supports his belief with the opinion of another expert. Petitioner has failed to establish either the falsity of Cron's testimony or the State's knowledge that the testimony was false. See Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990) (holding that conflicting testimony does not prove perjury but instead establishes a credibility question for the jury); Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir.) (holding that the fact that expert testimony is challenged by another witness is not sufficient to establish that the State either knows or believes the testimony to be false), cert. denied, 536 U.S. 978 (2002). Petitioner's sixth ground for relief is without merit, and it is recommended that it be denied.
3. Testimony regarding shack
In his seventh ground for relief, Petitioner asserts that the State knowingly presented evidence in a false light regarding the shack where Petitioner lived. Specifically, Petitioner contends that the State presented the evidence found in and around the shack in a false light when it attempted to link all of the evidence found in the shack to Petitioner through the testimony of Lieutenant Pothen when, in fact, there were documents found in the shack that belonged to Adams.
Lieutenant Paul Pothen of the DeSoto Police Department testified as a witness for the State. A portion of his testimony concerned the arrest of Petitioner at the shack on Beckley Avenue in DeSoto, Texas. Pothen testified that the shack where Petitioner was found and arrested had no windows or doors and no real rooms, was very dirty inside, and there were numerous items strewn on the floor inside of the shack, including several pairs of jeans, several dozen empty cans of gold spray paint, and several papers. (R. 46:25-6, 29-40). Papers belonging to Petitioner regarding his tax return found in the shack were admitted into evidence. (R. 46:41). On cross-examination, Pothen stated that he had no personal knowledge regarding whose jeans were at the shack, he had no personal knowledge as to how many people lived at the shack, and the only items found at the shack that definitely belonged to Petitioner were the tax documents and a Bible with his name in it. (R. 46:60-3). Later in the trial, after being questioned by defense counsel about the existence of papers belonging to Adams, lead prosecutor Greg Davis gave defense counsel copies of documents found in the shack that belonged to Adams, including Adams' parole papers, and these documents were admitted into evidence at trial as documents belonging to Adams found at the shack. (R. 48:35-53).
Petitioner asserts that Lieutenant Pothen's testimony gave the false impression that everything found in the shack belonged to Petitioner when, in fact, the State knew that documents belonging to Adams were found at the shack. Petitioner further asserts that this false testimony linked Petitioner to the crime and that there is a reasonable likelihood that, had the jury been made aware of Adams' "control over the Beckley shack," Petitioner would not have been convicted. (Petition at 50).
First, as noted by Petitioner, Adams' papers were later admitted into evidence at trial and were acknowledged by the State to have been found in the shack. This allowed defense counsel Karo Johnson to argue at closing that Adams' papers were evidence that not everything in the shack belonged to Petitioner. (R. 49:42-3). Therefore, the jury was not unaware of the papers and therefore was not unaware that Adams kept belongings at the shack. Second, Pothen was not the only witness who testified regarding Petitioner and his control over the shack. Both Donald Cole and Sylvia Parsons, two people who were on friendly terms with Petitioner, testified that Petitioner had told them that he lived in the shack. Accordingly, Lieutenant Pothen's testimony was not the only testimony at trial that indicated that it was Petitioner, and not Adams, who exercised primary control over the shack, because the testimony by Cole and Parsons was evidence before the jury that Petitioner actually lived in the shack. In summary, even if Pothen's testimony that he had no personal knowledge as to who owned the property was false testimony given that papers owned by Adams were found in the shack, there is no reasonable likelihood that the outcome of the trial would have been different had this testimony not been given. Moreover, defense counsel was able to use Adams' papers to argue that the evidence did not establish that the clothing found in the shack, including the Umen jeans, belonged to Petitioner. Petitioner's seventh ground for relief is without merit and should be denied.
4. Co-defendant's statement
Finally, in his eleventh ground for relief, Petitioner asserts that the State knowingly presented evidence in a false light when it introduced Adams' written statement into evidence at trial. Specifically, Petitioner asserts that the State introduced Adams' statement, in which Adams claimed that Petitioner alone killed the victim, using both Adams' knife and another knife, when the State knew that this was an incorrect statement by Adams. As support for this claim, Petitioner points to Adams' trial, at which the prosecution argued that Adams'statement should not be admitted into evidence because it was hearsay and at which the State's theory of the crime was that Adams used his own knife to stab Vick. (Petition at 73-4). In essence, Petitioner asserts that the State presented false testimony at Petitioner's trial by presenting inconsistent theories at the two trials of Petitioner and Adams.
At Petitioner's trial, defense counsel questioned Detective Tripple on cross-examination about a conversation he had with Adams. Tripple testified that Adams told him that his knife was used in the offense. On re-direct examination, the State successfully argued that the rest of Adams statement regarding the knife should be admitted into evidence under the Texas rule of optional completeness. The prosecutor then elicited from Tripple that Adams told Tripple that Petitioner first used Adams' knife to stab Vick and then, after it broke, he retrieved another knife from the kitchen and used that knife to murder Vick. (R. 45:234).
Petitioner alleges that this portion of Adams' statement was false testimony and that the State knew it was false because the State subsequently argued at Adams' trial that it was Adams who used his own knife to stab Vick. Petitioner then cites cases, albeit not from this Circuit, that hold that the State cannot pursue inconsistent theories at the trials of co-defendants. Putting aside whether Petitioner has actually presented evidence that Adams' statement was false or whether the State can or cannot pursue inconsistent theories against co-defendants, Petitioner has not shown either that the State knew the statement by Adams was false or that the State pursued inconsistent theories with respect to Petitioner and Adams.
Undoubtedly, at Petitioner's trial the State emphasized Petitioner's role in Vick's murder. However, other than the fact that Adams'statement was admitted into evidence, the State never pursued a theory at Petitioner's trial that Petitioner used both knives that were found to have Vick's blood on them to kill Vick by himself. To the contrary, in his opening statement, lead prosecutor Greg Davis argued that the evidence would show that Petitioner and Adams were armed with knives, one a pocketknife and one a butcher knife, and they entered the victim's bedroom as she laid in her bed and killed her. (R. 43:76). And, as noted by Respondent, in his closing argument, Davis argued that the evidence had shown that Petitioner had used a serrated butcher knife to murder Vick and he did not argue that Petitioner used the pocketknife that was owned by Adams. (R. 49:54-5). And he also stated that Adams would have his day in court, but that Petitioner's trial was about Petitioner. (R. 49:59). Thus, while the State's motive in wanting all of Adams' statement about the knives placed into evidence is not known, it evidently was not so that the State could use that statement to prove that Petitioner used both knives to kill Vick. The record therefore does not support Petitioner's claim that there were inconsistent theories pursued at the two trials.
One reason the State may have wanted all of Adams' statement regarding the knives admitted into evidence was to insure that there was not a false impression left with the jury that Adams confessed to killing Vick using his own knife by himself.
Furthermore, Petitioner has failed to prove that, if Adams' self-serving statement regarding the two knives was false, the State knew that it was false. From the portion of Adams' trial quoted by Petitioner, it is clear that the State did not believe that Adams' statement regarding the two knives trial was admissible as substantive evidence because the statement was self-serving and exculpatory, rather than inculpatory. (Petition at 73). But this does not establish that it was a statement that the State knew to be false. See Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir. 2002) (holding that the fact that false or perjured testimony is challenged by other evidence presented at trial or is inconsistent with prior statements does not establish that the prosecution knew or believed that testimony to be false). Without such a showing, Petitioner cannot prevail on this claim. Petitioner's eleventh ground for relief is without merit, and it is recommended that it be denied.
B. Brady Claims
In his second, third, fourth, fifth, and eighth grounds for relief, Petitioner asserts that his due process rights were violated because the State suppressed material exculpatory and impeachment evidence from the defense. Specifically, Petitioner asserts that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by: 1) suppressing the deal made between Llewellyn Mosley and the State; 2) suppressing the existence of a witness to whom Adams had confessed; 3) suppressing the statement and 911 call made by Daniel McGaughey; and 4) suppressing the materials belonging to Adams that were found in the shack. Respondent asserts in response that these claims are procedurally barred and that, in any event, they are without merit.
Standard of Review
Under Brady v. Maryland, 373 U.S. 83, 87 (1963), the suppression of evidence favorable to the accused and material to either guilt or punishment by the State violates a defendant's due process rights under the federal constitutional. And under Brady, the prosecution has the duty to turn over to the defense both exculpatory and impeachment evidence, whether or not it was requested by the defense. United States v. Bagley, 473 U.S. 667, 682, 685 (1985). Such evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A reasonable probability of a different result is shown when the suppression of evidence undermines confidence in the verdict. Bagley, 473 U.S. at 678; Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998).
Analysis
1. Mosley deal
In his second ground for relief, Petitioner argues that the State violated his due process rights under Brady by failing to disclose to the defense that State's witness Llewellyn Mosley had a non-prosecution deal with the State in exchange for his testimony. As support for this claim, Petitioner points to testimony given by Mosley's attorney in co-defendant Adams' subsequent capital murder trial.
An agreement made with a State's witness for leniency in return for his testimony is Brady evidence because it is evidence that is relevant to the credibility of such a witness. See Giglio v. United States, 405 U.S. 150, 154-5 (1972). However, in addressing Petitioner's first ground for relief, supra, this Court found that the record before it does not establish that there was a deal between Mosley and the State that he would not be prosecuted if he testified at Petitioner's trial. Accordingly, Petitioner has failed to establish that there was any non-prosecution deal between Mosley and the State.
Furthermore, Petitioner has failed to prove that, even were there such an agreement, the suppression of the agreement was material. In that regard, as noted earlier, Mosley testified about his prior criminal record, his drug use, his knowledge that the items he received from Petitioner and Adams were probably stolen, his desire not to be prosecuted by the State, and the inconsistencies between his prior written statement and his testimony. Moreover, in closing, defense counsel argued that Mosley's testimony should not be believed because the evidence showed that he ran a crack house and because Mosley expected something from the State for his testimony, given the felony offenses he had admitted committing during his testimony. (R. 49:28-9). Accordingly, Mosley's testimony was effectively impeached in other ways.
The Fifth Circuit has held, however, that a unilateral hope for leniency from the State is not Brady material that must be disclosed to the defense. Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000).
Moreover, as this Court discussed earlier, Mosley's testimony was corroborated by other evidence admitted at trial. Specifically, Vick's weed eater was found in Mosley's house, and the tire and wheel from Vick's car were found in an empty field next to Mosley's house. When withheld evidence seriously impeaches a key witness's testimony on an essential issue, a federal habeas court looks to whether the testimony was strongly corroborated by other evidence. Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995). Mosley's testimony that Petitioner and Adams came to his house in Vick's car, Mosley changed a flat tire, and Petitioner and Adams had in their possession the belongings of a woman from DeSoto was substantially corroborated elsewhere at trial. Petitioner has failed to prove either that the State suppressed a deal with Mosley or that, if such information was suppressed, it was material to Petitioner's conviction. Petitioner's second ground for relief is without merit and should be denied.
2. Jerry Causey statement
In his third ground for relief, Petitioner argues that the State suppressed the existence of a witness, Jerry Causey, to whom co-defendant Adams confessed. Petitioner further asserts that the State knew about Causey's existence at the time of Petitioner's trial and that, had the defense known about the confession and called Causey as a witness, there is a reasonable probability that Petitioner would not have been convicted of capital murder.
As support for this claim, Petitioner points to Jerry Causey's testimony at John Adams' trial in July of 1998 and an affidavit signed by Causey in December of 2001. At Adams' trial, Causey testified that he knew Adams in March of 1997 and that, on March 21, 1997, Adams drove to his house in a white automobile. When Causey asked him whose car it was, Adams told him that it was the "bitch's" car. Adams later told Causey that he "already done killed one bitch and I'll kill another one." Finally, Causey testified that he was never interviewed by the DeSoto police about this information, had never given a written statement, and first met and spoke to the prosecutor Greg Davis at the Hutchins state jail, where he was an inmate, about a month to six weeks before he testified at Adams' trial. (Petitioner's Exhibit #9, Adams' trial, vol. 32, pp. 188-93). In his affidavit, Causey gives the same information about his conversation with Adams in March of 1997, but he states in his affidavit that he was called by the District Attorney's office from the Lew Sterrett jail, where he was an inmate, in approximately November of 1997 to discuss the information. (Petitioner's Exhibit #8).
First, with regard to the State's knowledge of Jerry Causey's existence at the time of Petitioner's trial, Causey's affidavit appears to conflict with his testimony at Adams' trial. In his affidavit, he asserts that he spoke to the State about this information in November of 1997, shortly before Petitioner's trial began. At Adams' trial, Causey testified that he did not speak to the prosecutor until May or June of 1998. This apparent conflict does not establish that the State knew about the information that Causey had at the time of Petitioner's trial.
More importantly, however, Petitioner has failed to show that Adams' confession to Causey is material to Petitioner's conviction for capital murder. A defendant must show that the withheld evidence could reasonably be taken to put the case in a different light so as to undermine confidence in the verdict. Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998). As this Court has discussed earlier, and contrary to Petitioner's assertions, the State argued at Petitioner's trial that Petitioner and Adams both killed the victim. Moreover, Mosley testified at Petitioner's trial that, while Petitioner was the one driving the car when they arrived at his house in the middle of the night, both Petitioner and Adams would take turns driving the car away and coming back. (R. 45:155). Accordingly, a confession given by Adams to a third party while driving the victim's car does not exculpate Petitioner. Petitioner's third ground for relief is without merit, and it is recommended that it be denied.
3. Daniel McGaughey's statement and 911 call
In his fourth and fifth grounds for relief, Petitioner contends that the State suppressed the existence of a statement that Daniel McGaughey made to the police until after Petitioner's trial began and that the State suppressed the 911 tapes because they were misplaced and therefore not provided to the defense. Petitioner further asserts that, had the defense been provided the statement McGaughey made to the police earlier and been provided the 911 tapes, there is a reasonable probability that he would not have been convicted of capital murder.
Notes taken by a police officer who spoke to McGaughey after he called 911 on Adams' behalf quote McGaughey as saying that Adams confessed to him that he had murdered someone. (Petitioner's Exhibit #5). The police notes differ from McGaughey's written statement to the police, in which he states that Adams told him there had been a murder and he wanted to turn himself in. (Exhibit #6). Defense counsel were aware of McGaughey's written statement prior to trial, but were not informed of the police notes until December 1, 1997, the first day of testimony at Petitioner's trial. (R. 46:71, 80-1). The prosecution also informed defense counsel during Petitioner's trial that the District Attorney's office did not have a tape of McGaughey's call to 911, even though the police officers had stated to the prosecutors that the tape had been dropped off at the prosecution's reception area. (R. 46:83-4).
With regard to the 911 tape, as Respondent notes, even were the record before this Court that the State affirmatively destroyed these tapes, which it is not, in order to establish a constitutional violation, Petitioner must prove that the State destroyed the tape with knowledge of its exculpatory value. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), citing Arizona v. Youngblood, 488 U.S. 51 (1988). This, Petitioner has not done, as the State represented at trial that the tape was lost, not destroyed. But more importantly, Petitioner has failed to establish that he has been prejudiced by the fact that he did not know of the police notes until trial or that he has never heard McGaughey's 911 call. In that regard, McGaughey has recently signed an affidavit in which he states, not that Adams confessed to him, but that Adams told him that there had been a murder. (Petitioner's Exhibit #7). Therefore, McGaughey's written statement, not the hearsay notes of a police officer, is the best and most accurate evidence of what Adams said to McGaughey. And, Petitioner has not shown that the 911 tape would have contained any different information than that already provided to this Court by Mr. McGaughey. Moreover, the materiality of Brady evidence is dependant on the value of the evidence relative to the other evidence presented by the State at trial. Spence v. Johnson, 80 F.3d 989, 995(5* Cir. 1996). As previously discussed by this Court, a confession by Adams would not have been exculpatory evidence for Petitioner because the State argued at trial, and the evidence reflected, that both men murdered the victim. Petitioner's fourth and fifth grounds for relief are without merit and should be denied.
4. Adams' papers
In his eighth ground for relief, Petitioner claims that the State suppressed the existence of papers belonging to John Adams that were discovered in the shack where Petitioner was arrested until the middle of Petitioner's trial. Petitioner further claims that this suppression prevented defense counsel from having a coherent trial strategy and from effectively cross-examining Lieutenant Pothen about the contents of the shack.
As set forth earlier, on the last day of testimony by State's witnesses, and upon the request of defense counsel Karo Johnson, the State provided to the defense papers belonging to Adams that were found in the shack, these papers were admitted into evidence before the jury, and Mr. Johnson argued at closing that the papers belonging to Adams that were found in the shack was evidence that other evidence found in the shack, such as the bloody jeans, might have also belonged to Adams. Petitioner contends, however, that it would have been more effective for defense counsel to cross-examine Lieutenant Paul Pothen about the contents of the shack earlier in the trial. Petitioner further asserts that, had defense counsel been able to do this, there is a reasonable probability that he either would not have been convicted or would not have been sentenced to death.
Initially, this Court notes that the record from the trial indicates that all of the evidence that was seized from the Beckley shack was at the DeSoto police department and was available for the defense to examine, and defense counsel had been informed of this. (R. 48:37). Brady does not require the State to furnish a defendant with exculpatory evidence that is available to the defendant through the exercise of due diligence. Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir.), cert. denied, 536 U.S. 978 (2002); Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997). Moreover, even if the State did suppress the Adams' papers until the end of its case, the Fifth Circuit has stated that, even if there has been a Brady violation, a reversal is not required if the defendant was not prejudiced by the nondisclosure or late disclosure and could prepare his defense in an adequate manner. United States v. Johnston, 127 F.3d 380 (5th Cir. 1997); United States v. Ellender, 947 F.2d 748, 757 (5th Cir. 1991). In the case at hand, the jury was made aware of the existence of the documents, they were placed into evidence and could therefore be examined by the jury, and defense counsel was able to incorporate their existence into his closing statement. The record reflects that the jury considered all of the evidence found in the shack and its relevance to the case, as the jury sent notes during deliberations requesting to look at all of the jeans and pants in evidence, the knives found at the shack, and the DNA testimony from the trial, and this evidence was provided to them. (R. 49:61-4). Petitioner has not shown that cross-examination on this issue would have rendered better results. Petitioner has failed to establish a Brady claim, and it is recommended that his eighth ground for relief be denied.
C. Cumulative Error Claim
In his ninth ground for relief, Petitioner contends that the cumulative effect of the suppression of evidence by the prosecution and the presentation of false evidence by the prosecution deprived him of his due process rights and his right to a fair trial.
In Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992), the Fifth Circuit held that in order for a federal habeas petitioner to prevail on a claim of cumulative error at a state trial, he must establish that: 1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; 2) the errors were not procedurally defaulted for habeas purposes; and 3) the constitutional errors so infected the entire trial that the resulting conviction violates due process. Id. at 1458.
As this Court has held, all of Petitioner's Napue and Brady claims are procedurally defaulted claims because Petitioner did not raise any of these claims at the state level and has not overcome the procedural bar with a credible actual innocence claim. Accordingly, Petitioner's cumulative error claim cannot prevail. Furthermore, even were these claims not procedurally defaulted, none of Petitioner's claims, either individually or aggregately, indicate that his trial was so infected with constitutional errors that the resulting conviction is suspect or violates due process. Rather, Petitioner's conviction for capital murder was based on admissible and credible evidence. Petitioner's ninth ground for relief is without merit, and he is not entitled to relief on this basis. Accordingly, it is recommended that it be denied.
D. Ineffective Assistance of Counsel at Trial
In his twelfth, thirteenth, and fourteenth grounds for relief, Petitioner asserts that his trial counsel were ineffective in several ways. Specifically, Petitioner contends that his trial counsel were ineffective for: 1) failing to object to the admission of John Adams' statement into evidence on Confrontation Clause grounds; 2) failing to conduct an adequate investigation in preparation for both the guilt and the punishment phases of the trial; and 3) failing to request a hearing on the admissibility of expert fingerprint testimony at trial.
Standard of Review
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, in order to prove that his counsel was ineffective, a defendant must prove by a preponderance of the evidence both that counsel's performance was deficient and that this deficient performance prejudiced his defense. Id. at 687. Courts, however, should "indulge a strong presumption" that counsel's conduct falls within the range of reasonable assistance, and a defendant must overcome the presumption that an action is sound trial strategy. Id. at 689. And prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel).
Analysis
1. Co-defendant's statement
In his twelfth ground for relief, Petitioner asserts that his trial counsel were ineffective for failing to object to the admission into evidence of John Adams' statement on the appropriate grounds. Specifically, Petitioner should have objected that the admission of this statement violated Petitioner's rights under the Confrontation Clause of the Sixth Amendment. Respondent concedes that this claim was exhausted at the state level, but contends that it is without merit.
Applicable Facts
During Petitioner's trial, Detective Dan Trippel of the Dallas Police Department testified regarding the 911 call he responded to on March 22, 1997, his meeting with John Adams as a result of this call, and his subsequent visits with Adams to the crime scene and the location where Donna Vick's car was abandoned. (R. 45:191-215). On cross-examination, defense attorney Karo Johnson asked Trippel, among other things, whether Adams had told him that it was his knife that was used in the offense. Trippel responded that Adams had told him that. (R. 45:222). Johnson also asked whether Adams had described his knife and Trippel responded that Adams described it as a lock-blade knife. (R. 45:224).
On re-direct examination, the prosecutor elicited from Detective Trippel the fact that Adams told Trippel that it was Petitioner who used Adams' knife to attempt to kill the victim, and when it broke he used a kitchen knife. (R. 45:234). This testimony was elicited under Texas Rule of Evidence 107, Texas' rule of optional completeness. Defense counsel objected that this was hearsay testimony that was inadmissible and that it did not fall under Rule 107 because the testimony elicited by defense counsel did not create any false impression. These objections were overruled. (R. 45:231-32). On direct appeal, the Court of Criminal Appeals ruled that the trial court did not err in admitting this testimony because Adams' admission of ownership of the knife could have misled the jury about who was actually responsible for the killing. Wright, 28 S.W.3d at 536. That court declined, however, to consider a claim that the testimony was inadmissible under the Confrontation Clause because this claim had not been preserved at trial. Id.
At the state habeas level, Petitioner asserted that his trial counsel were ineffective for failing to make an objection based on the Confrontation Clause, thereby failing to preserve error. The state habeas court concluded that trial counsel were not ineffective for failing to make a Confrontation Clause objection and concluded that Petitioner had failed to establish prejudice for the failure to make this objection. (SHTr.:213-15).
Analysis
The state court's conclusions do not result in a decision that is contrary to federal law. Under the Confrontation Clause of the Sixth Amendment, a criminal defendant is guaranteed the right to physically face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). And, generally speaking, the Confrontation Clause guarantees the opportunity for effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985) ( per curiam). In Lilly v. Virginia, 527 U.S. 116 (1999), the Supreme Court discussed the admission of hearsay statements into evidence in the context of the Confrontation Clause. In Lilly, the Court restated the rule that, in order for a hearsay statement to be admissible at a criminal trial without violating the Confrontation Clause, the evidence must fall within a "firmly rooted" hearsay exception, and it must contain guarantees of trustworthiness such that subjecting it to adversarial testing would add little to its reliability. Id. at 124-24. While the Supreme Court in Lilly was not addressing the optional completeness rule as a rule permitting the admission of hearsay evidence, the Supreme Court did state in Lilly that its history of cases has consistently viewed accomplices' statements that shift or spread blame to the defendant as failing to have the guarantees of trustworthiness necessary for such statements to pass constitutional muster under the Confrontation Clause. Id. at 133. Therefore, the opinion in Lilly gives credence to Petitioner's claim that the portion of Adams' statement in which he alleged that it was Petitioner alone who killed the victim was not admissible under the Confrontation Clause.
But, while an objection based on the Confrontation Clause might have indeed prevailed had defense counsel made such an objection at trial, Petitioner has failed to establish any prejudice because he has failed to show that, even had the statement from Adams that Petitioner used Adams' knife to kill the victim not been admitted into evidence, there is a reasonable probability that Petitioner would not have been convicted. In that regard, two knives with Donna Vick's blood on them were found at and around the shack where Petitioner was arrested, along with a pair of jeans with both Vick's blood and Petitioner's gold paint on them. Moreover, Petitioner's blood was visible on the steering wheel and dashboard of Vick's car, Llewellyn Mosley testified that he saw Petitioner and Adams trade items belonging to Vick for crack cocaine shortly after the murder, and Petitioner's fingerprint was found in blood at the crime scene. While Petitioner attacks the State's contention that the jeans with Vick's blood on them were his, and attacks the credibility of the testimony given by Mosley and James Cron, the fingerprint expert, as this Court noted earlier, this evidence was admissible evidence presented to the jury at Petitioner's trial.
Furthermore, while Petitioner contends that the State used the hearsay statement by Adams to prove that Petitioner alone stabbed and cut Donna Vick, in fact the State did not argue that Petitioner acted alone. In both the opening and closing statements made by the State at Petitioner's trial, while prosecutors concentrated their arguments on Petitioner's culpability, they never contended that Petitioner was the only person who stabbed the victim. Instead, in his opening statement, prosecutor Greg Davis stated that the evidence would show that the two men acted together to murder the victim. (R. 44:76). And in his closing statement, Davis stated that the evidence showed that Petitioner and Adams committed murder together and later stated that Adams would have his day in court for his actions. (R. 49:48, 59). Given all of the other evidence presented at Petitioner's trial, it cannot be said that, had Adams' self-serving statement regarding his knife that was not relied upon by the State not been admitted into evidence, there is a reasonable probability that Petitioner would not have been convicted of capital murder. The state court's conclusion was not contrary to federal law, and this claim is without merit.
It also cannot be shown that, had Adams' statement been admitted into evidence, his conviction would have been overturned on appeal if defense counsel had preserved error on the Confrontation Clause error. Indeed, in Lilly, the Supreme Court specifically stated that the erroneous admission of an accomplice's statement in violation of the Confrontation Clause is an error subject to a harmless error analysis. Lilly, 527 U.S. at 139-40. And again, given the other evidence admitted into evidence supporting Petitioner's conviction, along with the fact that the State never alleged that Petitioner acted alone in killing Donna Vick, Petitioner has not shown that his conviction would have been reversed even had the Court of Criminal Appeals found error.
2. Mitigating Evidence
In his thirteenth ground for relief, Petitioner contends that his trial attorneys were ineffective for failing to investigate the potential witness Daniel McGaughey and the 911 call he made for potential exculpatory evidence; for failing to investigate the ownership of the Umen jeans that were found in the shack; and for failing to investigate the evidence presented by the State at the punishment phase of the trial and failing to present mitigating evidence on Wright's behalf. Respondent asserts in reply that the portion of the claim regarding the Umen jeans is unexhausted and procedurally barred and that, in any event, all of these claims are without merit. a. Witness McGaughey
Petitioner first alleges that his defense counsel were ineffective in their representation with respect to potential witness Daniel McGaughey and the 911 call he made at Adams' request. Specifically, Petitioner asserts that his defense counsel were ineffective for failing to investigate McGaughey's whereabouts before they actually did. Petitioner contends that, had McGaughey been located, he could have been called as a witness and provided exculpatory evidence for Petitioner.
As noted earlier, Detective Trippel testified at trial that he responded to a 911 call on March 22, 1997, and as a result of that call met with John Adams. (R. 45:192). During the trial, a hearing was held regarding police notes the defense received during trial from the State regarding Daniel McGaughey, the man who called 911 on Adams' behalf. (R. 46:71). The defense had previously received a written statement given to the police by McGaughey. At this hearing, both the prosecution and the defense stated that they had attempted to locate McGaughey during the trial, but had not located him at the business where he worked from where he placed the 911 call or at his previous residence. The defense investigator also testified that he attempted to locate McGaughey at his mother-in-law's home by telephone, but there was no answer. The defense requested a continuance from the trial court in order to locate him, but the request was denied. (R. 46:74-81).
Petitioner asserts that his attorneys were ineffective in not locating McGaughey earlier and presenting him as a witness at trial. Petitioner further asserts that, had McGaughey testified at trial, he would have testified that John Adams confessed to him. As support for this claim, Petitioner points to an affidavit from McGaughey submitted to this Court as an exhibit, notes taken by a police officer after the police spoke to McGaughey, and a written statement provided to the police by McGaughey on March 25, 1997.
In his affidavit, McGaughey states that, while he had possibly moved out of the motel where he had been living by the time of Petitioner's trial, he was then living with his mother-in-law and had provided her address and telephone number as his contact information. McGaughey also states that in 1998 he was visited at his mother-in-law's home by people from the district attorney's office regarding Adams' upcoming trial. And, as outlined earlier by this Court, he further states in his affidavit that in March of 1997, a man came into the video store where he worked on Industrial Boulevard and asked him to call the police. When McGaughey asked why, the man stated that there had been a murder in DeSoto and he could not live with himself anymore. (Petitioner's Exhibit #7). In his original signed statement to the police, McGaughey gave essentially the same information. (Exhibit #6). However, in notes taken by a police officer who interviewed McGaughey, McGaughey is quoted as saying that Adams told him "I murdered someone in DeSoto and I can't deal with it." (Exhibit #5).
At the state habeas level, without the benefit of the new affidavit from McGaughey, the state habeas court denied relief, concluding that: 1) trial counsel were not ineffective for failing to investigate McGaughey earlier because they did not receive the police notes quoting McGaughey as stating that Adams had confessed to the murder until trial; 2) trial counsel were not ineffective because it was unlikely that McGaughey could have been located; and 3) prejudice had not been shown because McGaughey's signed statement was more reliable and because the notes did not establish Petitioner's innocence because the State argued that Adams also participated in the murder. (SHTr.:231-35). These conclusions do not result in a decision contrary to federal aw as outlined in Strickland.
Putting aside the issue of whether defense counsel should have been able to locate McGaughey at the time of Petitioner's trial, Petitioner has failed to establish any prejudice. In that regard, the Fifth Circuit has recognized that the materiality prong of the Brady standard is identical to the prejudice prong of the Strickland standard. Martin v. Cain, 246 F.3d 471 (5th Cir.), cert. denied, 534 U.S. 885 (2001); Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995). This Court has previously determined that the new affidavit does not present any information material to Petitioner's trial under the Brady material. The new affidavit from Daniel McGaughey indicates that his recollection of events is nearly identical to what he recounted in his written statement given several years ago. That is, Adams approached him, told him in a general manner that "there had been a murder" and "he couldn't deal with it." This affidavit does not support the hearsay notes from a police officer suggesting that Adams directly confessed to McGaughey. Accordingly, Petitioner has failed to establish that, had McGaughey been located and called as a witness, he would have testified that Adams confessed to the murder. Moreover, as the state habeas court found, the record reflects that, while the prosecution argued that Petitioner was the primary actor in the murder, the prosecution argued that both men participated in the murder of Vick. Accordingly, even had Adams confessed to the murder, this would not have exculpated Petitioner. Therefore, Petitioner has failed to establish by a reasonable probability that, had Daniel McGaughey testified at trial, he would not have been convicted. This claim is without merit.
b. Umen jeans
With regard to the ownership of the Umen jeans, Petitioner asserts that his defense attorneys were ineffective for failing to obtain co-defendant Adams' papers that were seized from the Beckley shack earlier than they did. Petitioner argues that, had these papers been retrieved earlier from the DeSoto police department, the defense could have used their existence to impeach the testimony of Lieutenant Paul Pothen, who testified about the contents of the Beckley shack. Had this been done, the defense could then have created a reasonable doubt regarding the State's claim that the Umen jeans, which had Donna Vick's blood on them, were Petitioner's jeans.
Lieutenant Paul Pothen of the DeSoto Police Department testified at trial about, among other things, items that were retrieved from the shack where Petitioner was arrested. On cross-examination, Pothen testified that he had no personal knowledge regarding who lived in the shack and further testified that only a few of the items, those being a Bible and some tax forms, could positively identified as belonging to Petitioner. (R. 46:62-3). Later in the trial, outside of the presence of the jury, lead prosecutor gave the defense documents found in the shack that all belonged to John Adams. At that time, defense counsel contended that this was Brady material that should have been disclosed earlier. Davis responded that all of the items were at the DeSoto Police Department, and he had previously informed defense counsel that everything seized from the shack was at the police department. Davis also stated that defense attorney Karo Johnson had asked him about these specific documents belonging to Adams that morning, even though Davis had never mentioned them to defense counsel. (R. 48:35-40). These papers, which were Adams' parole papers, were admitted into evidence by the defense, and the prosecution stipulated before the jury that all of the documents were found in the shack. (R. 48:46, 51-3). The defense then argued in closing arguments that the documents were evidence, along with the size of the Umen jeans, that the Umen jeans belonged to Adams, not Petitioner, and that the jeans, along with Adams' knife with Vick's blood on it that Adams directed the police to find, showed that Adams and not Petitioner was the person who killed Vick. (R. 49:31-33, 35-8, 42-4).
Petitioner contends that, had defense counsel gone to the DeSoto police department and retrieved Adams' documents earlier, these could have been used in the cross-examination of Lieutenant Pothen, who testified that he did not know who owned the property in the shack and that it could have belonged to Adams. This could have then have tied Adams to the Umen jeans. However, regardless of whether defense counsel could have obtained these documents earlier and questioned Pothen about them, Petitioner has failed to establish prejudice. In that regard, Pothen conceded that he did not know who owned the numerous items in the shack and that the shack appeared to be used by transients. Furthermore, the documents belonging to Adams were admitted into evidence at trial, the prosecution stipulated on the record that they were found in the shack, and the defense was able to argue at closing that there was reasonable doubt as to whether the Umen jeans belonged to Petitioner because they were both too small for him and because they could also have belonged to Adams, who kept some items at the shack. While Pothen would have presumably acknowledged on cross-examination that Adams' documents were found at the shack, Petitioner has not shown that this would have provided any greater weight to the arguments made by defense counsel at the conclusion of the guilt phase of the trial, arguments ultimately rejected by the jury. This claim is without merit.
c. Punishment evidence
Petitioner also contends that his defense attorneys were ineffective for failing to adequately investigate the evidence presented by the State at the punishment phase of the trial and for failing to investigate and present mitigating evidence on Petitioner's behalf. Specifically, Petitioner asserts that defense counsel were ineffective in failing to investigate extraneous offenses that were admitted into evidence at trial and were ineffective for failing to investigate and present mitigating evidence on Petitioner's behalf. Petitioner asserts that, had defense counsel investigated the extraneous offenses, they would have discovered that Petitioner sustained serious injuries at the hands of the police after leading the police on a long chase on January 13, 1988, an extraneous offense admitted into evidence, and that this beating explained why Petitioner again ran from the police and violently resisted arrest on August 4, 1988, another offense placed into evidence at trial. Petitioner also asserts that defense counsel should have further investigated a rape charge, as further investigation would have revealed that no rape occurred. And, Petitioner asserts that defense counsel should have presented testimony from family members and other witnesses in mitigation of punishment. (Petition at 101-02). As support for these claims, Petitioner has submitted a videotape of Petitioner from January 13, 1988, as well as affidavits from Petitioner's father and a former co-worker.
At the state level, the state habeas court addressed two of these three specific claims on their merits, although neither the videotape nor the two affidavits were presented to that court. The state habeas court concluded that defense counsel were not ineffective for failing to call witnesses on Petitioner's behalf, as the record revealed that members of Petitioner's family were present at trial and were prepared to testify but Petitioner, in consultation with his attorneys, opted not to call them as witnesses as they would be subject to questions about his prior extraneous offenses. Accordingly, the state habeas court concluded that defense counsel made a reasonable tactical decision not to call these witnesses. The state habeas further concluded that defense counsel were not ineffective for failing to investigate the rape charge, as the officer who investigated that charge was effectively cross-examined on the issue, and defense counsel effectively argued during closing arguments that there was no evidence of a rape, but the record instead showed that Petitioner was convicted of an aggravated assault. (SHTr.:239-43). The state habeas also concluded that Petitioner had failed to establish prejudice under Strickland. (SHTr.:244). Relief was therefore denied
These conclusions do not result in a decision contrary to federal law. With regard to Petitioner's claim that his attorneys were ineffective for failing to present witnesses on his behalf, in his affidavit, submitted as an exhibit with Petitioner's petition, defense attorney Karo Johnson states that he spoke to Petitioner's mother, father, and brother about testifying on Petitioner's behalf at the punishment phase of the trial. Petitioner's mother was unavailable to testify because of a family illness. However, Petitioner himself instructed Mr. Johnson not to call either his brother or his father to the stand after Mr. Johnson explained to Petitioner that they would be cross-examined regarding their knowledge of Petitioner's previous extraneous offenses. (Petitioner's Exhibit #20). In Strickland, the Supreme Court stated that:
This statement is supported by the record of the trial. After the State presented its case at the punishment of the phase of the trial, and outside of the presence of the jury, defense attorney Karo Johnson questioned Petitioner about their prior discussions on this issue. Petitioner agreed that his father and his brother were present and willing to testify and that other witnesses were available to testify, but that Petitioner, after some discussion with Johnson, decided not to call any witnesses at that phase of the trial. (R. 50:117-18).
[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.466 U.S. at 691. The Court also noted in Strickland that a fair assessment of an attorney's performance requires one "to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. The Fifth Circuit has also recognized that "[g]reat deference must be given to choices which are made under the explicit direction of the client." United States v. Masat, 896 F.3d 88, 92 (5th Cir. 1990), citing Mulligan v. Kemp, 771 F.2d 1436, 1441 (11th Cir. 1985), cert. denied, 480 U.S. 911 (1987). While Petitioner's father has submitted an affidavit stating that he was willing to testify at the trial and would testify that he had no problems with Petitioner when he lived with him (Exhibit #21), the evidence before this Court is that Petitioner, after being informed that his relatives would be subject to cross-examination about their knowledge of his past, chose not to call them to the stand. Accordingly, defense counsel cannot be deemed ineffective for failing to call Petitioner's father and brother as witnesses. See Barrientes v. Johnson, 221 F.3d 741, 774 (5th Cir. 2000) (stating that a tactical decision not to present character evidence at the punishment phase of a capital murder trial because it would open the door to incidents of prior misconduct on the defendant's part is not deficient performance); Williams v. Cain, 125 F.3d 269, 278 (5th Cir. 1997) (noting that a failure to present evidence at trial does not constitute "deficient performance" under the Strickland standard if counsel could have concluded, for tactical reasons, that presenting such evidence would be unwise).
Moreover, Petitioner has failed to establish that, had these witnesses been called, there is a reasonable probability that he would not have been sentenced to death. Petitioner has submitted affidavits from his father and a former co-worker who state, in essence, that they never had any problems with him and never saw him act violently. (Petitioner's Exhibits #21, 22). The jury, however, had not only convicted him of stabbing a woman to death, but had also heard testimony at the punishment phase that: 1) Petitioner had on one occasion driven away from the police, resulting in a police chase, in which Petitioner crashed into three vehicles and almost ran over an officer (R. 50:17-43); 2) Petitioner's wife had called the police after a domestic dispute where she was beaten by Petitioner, at which time Petitioner hit one officer, busting his lip and chipping a tooth, ran from the officers, and fought with another officer, resulting in that officer breaking a bone in his hand (R. 50:46-68); 3) A homeless woman had reported to the police that Petitioner and two other homeless men had raped her (R. 50:78-89); 4) Petitioner was arrested another time for fighting and possessing a weapon (R. 50:92-100); and 5) Petitioner received a three-year sentence for aggravated assault on the homeless woman, as well as an additional year for escaping from custody. (R. 55:State's Exhibit #90). Given all of this other evidence supporting the jury's decision that Petitioner was a future danger to society (Tr.: 332), Petitioner has not shown a reasonable probability that, had Petitioner's father and former co-worker testified at trial, he would not have received a death sentence.
With regard to Petitioner's claims regarding the rape charge, Petitioner asserts that, had his attorneys traveled to Tennessee and investigated this extraneous offense, they would have determined that no rape in fact occurred. Further, had defense counsel presented evidence that no rape occurred, Petitioner would not have been sentenced to dearth.
Officer Marvin Rivera of the Nashville, Tennessee police department testified at the punishment phase of the trial that he responded to a call in the early morning on July 22, 1989, from a homeless woman, looking upset and bedraggled, who stated that three homeless men had raped her. She pointed out their location under a bridge to the officer, and they were subsequently taken into custody. Petitioner was one of these men. (R. 50:78-86). On cross-examination, Rivera acknowledged that he was never called to court with regard to this case and that the last time he saw the complainant was that morning. Court papers were admitted into evidence that reflect that Petitioner pled guilty to aggravated assault as a result of this charge and received a three-year sentence. (R. 55, State's Exhibit #90). In his closing argument defense attorney Paul Brauchle argued that the record showed that it was not, in fact, a rape (R. 51:27).
Petitioner asserts that, had defense counsel further investigated this issue, they could have presented evidence that Petitioner did not rape this woman. Other than the reports made by Officer Rivera, about which he was cross-examined, Petitioner has not pointed to any further evidence that he asserts should have been produced at trial that would have actually proved that no rape occurred. While Petitioner could have testified regarding this incident himself, he made the decision not to testify at trial. (R. 50:117-18). Defense counsel instead cross-examined the police officer who responded to the call and highlighted during closing arguments the fact that Petitioner was not convicted of a sexual assault, but instead was convicted of an aggravated assault. Moreover, Petitioner has not shown that this failure to investigate prejudiced Petitioner. In that regard, Petitioner did plead guilty to aggravated assault as a result of the incident on July 22, 1989. Petitioner has failed to show that, had some sort of evidence been produced clearly establishing that Petitioner did not rape the woman, but instead was guilty of only an aggravated assault, there is a reasonable probability that he would not have received the death penalty.
Finally, Petitioner asserts that, had his defense attorneys done further investigation, they would have discovered that Petitioner had suffered a beating by the police after a police chase that occurred in Memphis, Tennessee on January 13, 1988. Petitioner further asserts that, had the defense presented this evidence, it would have been mitigating evidence because it would have explained why Petitioner once again ran from the police on August 4, 1988 when they attempted to arrest him after a domestic dispute with his wife.
At the punishment phase of Petitioner's trial, the State presented testimony from two police officers from Memphis that, on January 13, 1988, after being approached outside a Wendy's restaurant while he was sitting in his car, Petitioner drove away from the police, huffing paint out of a plastic bag, leading the police on a car chase that resulted in Petitioner driving the wrong way on a busy street, driving on a sidewalk, hitting two civilian cars, purposely ramming a patrol car, and almost running a police officer over with his car. The officers also testified that, after Petitioner was stopped once again, he fought with the officers, refusing to exit his car, and had to be dragged out of the car and beaten with batons in order to be arrested. He was subsequently taken to the hospital as a result of his injuries. (R. 50:17-43). The State also presented testimony from two other Memphis police officers that, on August 4, 1988, after the police responded to a domestic disturbance call from Petitioner's wife, Petitioner hit one officer in the mouth, cutting his lip and chipping a tooth, ran from the two police officers, and was apprehended by the officer, who broke his hand in the ensuing struggle. (R. 50:46-68).
Petitioner contends that, had the defense conducted further investigation, evidence that Petitioner was severely beaten by the police after the car chase could have been admitted at trial, and this evidence would have explained why he struggle with the police the second time. As evidence that Petitioner was beaten after he was finally apprehended, Petitioner has submitted a videotape of a news report about the car chase that aired in Memphis the day after. (Petitioner's Exhibit #23). In this news report, Petitioner was interviewed from jail. In this interview, Petitioner stated that he was beaten by six or seven police batons from all sides and as a result of the beating he had twenty-five stitches in his head, several stitches on his hands because of the broken glass on the ground, and cut wrists from the handcuffs. Two witnesses were also interviewed, who were present at the Wendy's. One stated that Petitioner was held upside down and kicked in the head by a female police officer, and the other witness stated that five police officers continued to hit Petitioner after he was down on the ground. The reported also reported that the police department believed that Petitioner was arrested, that Petitioner was reportedly intoxicated on paint fumes, that Petitioner ran into several cars, that Petitioner reportedly came at officers with a hammer, and that three officers received minor injuries. (Exhibit #23).
Petitioner has failed to establish either deficient performance or prejudice with regards to this claim. While Petitioner asserts that his attorneys should have discovered this news report through further investigation, Petitioner could have also called in to their attention, since he knew of the report, having been interviewed for the report. Defense counsel cannot be deemed deficient for failing to uncover information that was known to their client but that he does not reveal to them. Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (recognizing that the reasonableness of an attorney's investigation may "critically depend" on information provided by the defendant and on the defendant's own "strategic decisions" about the representation). Furthermore, Petitioner has failed to establish that, had this videotape been shown to the jury, the result of the trial would have been different. Both officers involved acknowledged during their testimony at trial that they beat Petitioner with police batons, dragged him from his car, and took him to the hospital afterwards so that his injuries could be addressed. (R. 50:25-7, 29, 37, 43). While the videotape would have been further evidence of Petitioner's injuries, given Petitioner's behavior in evading the police and endangering police and civilian lives by running red lights and stop lights, driving the wrong way on streets, and crashing into cars, Petitioner has failed to show that further evidence of the injuries he sustained while resisting arrest would have resulted in a life rather than a death sentence. Petitioner has therefore failed to present sufficient evidence to support this claim of ineffectiveness.
3. Daubert hearing
In his fourteenth ground for relief, Petitioner asserts that his trial counsel were ineffective for not requesting that a hearing be conducted regarding the admissibility of James Cron's fingerprint testimony. Specifically, Petitioner asserts that his defense attorneys should have requested a hearing regarding the admissibility of the fingerprint testimony because two Sheriffs deputies could not match the fingerprint to Petitioner's finger and because Petitioner's fingerprint expert, Tom Ekis, has submitted an affidavit in which he states that he looked at the fingerprint at the time of Petitioner's trial, he determined that it lacked sufficient clarity to be comparable to any known fingerprints, and he believed that Cron was "teasing out" points of comparison in the print that were not there. (Petitioner's Exhibit #14). Respondent responds that this claim is procedurally barred but is, in any even, without merit.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court established a two-prong test to determine whether expert testimony merits admission into evidence at trial under Rule 702 of the Federal Rules of Evidence. The testimony must: 1) be based on scientific knowledge, and 2) assist the trier of fact in understanding or determining a fact in issue. Id. at 592. In Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992), the Court of Criminal Appeals outlined several factors in determining the admissibility of expert testimony under its analogous Rule 702, including: 1) the extent to which the underlying theory and technique are accepted as valid by the scientific community; 2) the qualifications of the testifying expert; 3) the existence of literature either supporting or rejecting the theory and technique; 4) the potential rate of error of the technique; 5) the availability of other experts to test and evaluate the technique; 6) the clarity with which it can be explained to the court; and 7) the experience and skill of the person who applied the technique in the applicable case.
In the case at hand, James Cron testified for the State as a fingerprint expert. Fingerprint testimony has been presented in cases for many years, as has thus been accepted as valid scientific evidence. See United States v. Howard, 260 F.3d 597 (7th Cir. 2001). During his testimony, Cron outlined his many years of experience in the field of fingerprinting, the numerous classes he both attended and taught, and the time he spent supervising other fingerprint technicians. This testimony established both his qualifications and his experience in the field. As noted earlier, there was a defense fingerprint expert present at trial. Therefore, there was an expert available to test and evaluate the fingerprint comparison made by Cron.
Given James Cron's experience as a fingerprint expert and the prevalence of fingerprint testing in courtrooms throughout this country, the relevant federal and state precedents demonstrate that Cron's testimony was reliable expert testimony. Hence, a decision not to request a hearing to determine the reliability of such testimony was not ineffective assistance of counsel. With regard to the two deputy sheriffs who could not identify the fingerprint and the defense expert who did not believe it was of comparable value, as Respondent notes, these are subjects for cross-examination and do not affect the admissibility of testimony regarding fingerprint identification. Accordingly, defense counsel were not ineffective for failing to request a hearing on the admissibility of Cron's expert testimony. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (noting that the Fifth Circuit has consistently held that counsel is not ineffective for failing to make futile motions or objections). Nor has Petitioner established any prejudice from the failure to request such a hearing as Petitioner has failed to show that, had request for such a hearing been requested, admissible fingerprint testimony would have been excluded. This claim is without merit. Petitioner's twelfth through fourteenth grounds for relief are without merit, and it is recommended that they be denied.
And indeed, defense counsel cross-examined Cron about, among other things, the fact that two sheriffs deputies could not identify the print. (R. 47:124).
X. REQUEST FOR EVIDENTIARY HEARING
Petitioner has also requested an evidentiary hearing in this Court. Under the AEDPA, a federal habeas court cannot grant a request for an evidentiary hearing if a petitioner failed to develop his factual claims at the state level. See 28 U.S.C. § 2254(e)(2). The factual bases for Petitioner's first through ninth claims, as well as his eleventh, a portion of his thirteenth, and his fourteenth grounds were not developed at the state level because these claims were not presented at the state level.
Moreover, a petitioner is not entitled to a federal evidentiary hearing even on fully developed claims. Rather, to be entitled to such a hearing, a habeas petitioner must show either a factual dispute which, if resolved in his favor, would entitle him to relief or a factual dispute that would require development in order to assess the claim. Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.), cert. denied, 531 U.S.951 (2000); Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998). Petitioner has not alleged any factual dispute that would require development in order to assess the merits of the claim. This Court has accepted all of Petitioner's non-record evidence in considering Petitioner's claims, regardless of whether this evidence was presented to the state courts, and ruled on these claims accordingly, assuming all of Petitioner's non-record evidence to be accurate. Petitioner is not entitled to a hearing, and it is recommended that his request be denied.