Opinion
A-99-CV-606 JN
March 1, 2001.
ORDER
Before the Court is the Petitioner's request for an evidentiary hearing, as set forth in Petitioner's Briefing in Support of Evidentiary Hearing (Clerk's Doc. No. 67), as well as Respondent Johnson's Response to Petitioner's Request for an Evidentiary Hearing (Clerk's Doc. No. 68), and Petitioner's Supplemental Briefing is Support of Motion for Evidentiary Hearing (Clerk's Doc. No. 69). The Court has considered all of the briefing, and enters the following order regarding an evidentiary hearing.
I. Basic Principles.
The relevant case law, in combination with 28 U.S.C. § 2254(e), creates the following basic rules regarding evidentiary hearings in cases such as this: If the factual record on a claim was fully developed in the State court proceedings, then the Petitioner is not entitled to an evidentiary hearing. Rather, the federal court applies the presumption of correctness codified in § 2254(e)(1), and either adopts the factual findings of the State court, or, if the petitioner rebuts the presumption of correctness, makes its own findings from the fully developed factual record. On the other hand, if the factual record is not fully developed, then the federal court must determine whether the petitioner is at fault for the lack of a full record. 28 U.S.C. § 2254(e)(2). If so, then the petitioner may be entitled to an evidentiary hearing only if he can meet the heightened burden codified at §§ 2254(e)(2)(A) (B). Williams v. Taylor, 529 U.S. 420, 435 (2000). If the lack of a full record is not the petitioner's fault, then the Court must review the request for an evidentiary hearing without requiring the petitioner to meet the heightened standard of the statute, and must exercise its discretion in granting or denying a hearing by applying the principles developed in the many cases, pre- and post-AEDPA, which interpret Rule 8 of the Rules Governing § 2254 Cases. See Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000) ("overcoming the narrow restrictions of § 2254(e)(2) does not guarantee a petitioner an evidentiary hearing; it merely opens the door for one; once a petitioner overcomes the obstacles of § 2254(e)(2), under Rule 8 of the Rules Governing § 2254 Cases, the district court retains discretion over the decision to grant an evidentiary hearing").
Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
In Williams, the Supreme Court held that to avoid being found at fault for an undeveloped State court factual record, the petitioner must show that he made a diligent search for evidence supporting his claim. "Diligence . . . depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court. . . ." Id. at 435. At a minimum, diligence requires that the prisoner must have sought an evidentiary hearing in the manner required by state law. Id. at 437. Thus, the prisoner must be "diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing, unless the statute's other stringent requirements are met." Id. at 437.
In cases in which there is an undeveloped factual record, and the petitioner cannot show his or her diligence in attempting to develop the facts, a court is prohibited from holding an evidentiary hearing unless: (1) either the claim relies on a new rule of constitutional law retroactively applied or the claim relies on facts that could not have been discovered through due diligence, and (2) the underlying facts are sufficient to establish by clear and convincing evidence that absent constitutional error, no reasonable fact finder would have found the petitioner guilty. 28 U.S.C. § 2254(e)(2).
In this case, the request for an evidentiary hearing turns entirely on the question of whether there is a fully developed factual record on the relevant claims, and if not, whether the Petitioner is at fault for the incomplete record. In the event it is determined that the Petitioner is at fault, that will be the end of the inquiry here, because he does not argue that he can meet the heightened burden of § 2254(e)(2)(A) (B), and makes no such attempt to carry that stringent burden. Two things are thus essential to the disposition of the Petitioner's request for an evidentiary hearing: (1) an understanding of the claims on which Elliott seeks to present evidence; and (2) a review of what occurred at the State court proceedings on each of those claims.
Unfortunately, the Petitioner's brief does not focus on the issue of whether § 2254(e)(2) applies. Instead, he focuses a great deal of attention on the merits of his claim under § 2254(d), and on why the presumption of correctness codified in § 2254(e)(1) is not applicable. These are questions separate and apart from the question of whether an evidentiary hearing will be held.
II. Basis for Hearing Request.
From a close review of Petitioner's Briefing in Support of Evidentiary Hearing ("Petitioner's Brief"), and Supplemental Briefing in Support of Motion for Evidentiary Hearing ("Supp. Brief"), the Petitioner appears to be requesting an evidentiary hearing on the following issues:1. Whether the Petitioner was competent to stand trial. Petitioner's Brief at 5 ("controverted material issue of fact, such as Mr. Elliott's competence to stand trial," were resolved at State habeas proceeding).
2. What is contained in the District Attorney's case file. Id. at 11 ("State habeas counsel was denied access to the District Attorney's case file on Mr. Elliott's capital murder conviction.").
3. What trial defense counsels' reasons were for taking certain actions challenged as ineffective. Id. at 11 ("there is no evidence in the record as to trial counsel's reasons for many disputed actions and episodes of apparent ineffective assistance") and 20 ("there are numerous issues of ineffective assistance of counsel which the trial court did not properly consider, nor does the trial court's decision address" and thus "a hearing is needed on this matter.").
4. Whether the jurors considered evidence that is alleged to have been false, and alleged to have been knowingly presented by the prosecution. Id. at 16 ("In the instant case the trial court did not consider affidavits from the jurors.").
5. Whether the prosecution engaged in misconduct in eliciting allegedly false testimony, suppressing the testimony of Pete Ramirez, or planting a pack of cigarettes in the pocket of the Petitioner's shorts which were introduced into evidence. Id. at 18 ("In the instant case, the state court did not develop a record regarding the testimony which could have been elicited from Mr. Pete Ramirez. As a result, an evidentiary hearing is required to determine exactly what Mr. Ramirez could have added."); Supp. Brief at 5 ("the perjured testimony of the co-defendant, the silence of Mr. Ramirez and his sisters, and the victim's cigarettes appearing in Mr. Elliott's pocket where none was inventoried, clearly suggests [sic] that at least an evidentiary hearing is needed to determine whether the prosecutor so infected the entire process as to make the resulting conviction a denial of due process.").
6. Whether the State violated Brady in failing to turn over a psychiatric report of the Petitioner and the polygraph test results of Pete Ramirez. Id. at 19 ("the State never turned over Mr. Elliott's psychiatric report nor Mr. Ramirez's polygraph results. The State trial court simply did not have any credible evidence from which to make a credible determination and thus an evidentiary hearing is required in this point.").
7. Whether the jurors understood the meaning of "beyond a reasonable doubt" in the jury charge. Id. ("The State presented no evidence at the state writ hearing on affidavits by which the trial court could make any reasonable determination as to what the jurors understood. Thus an evidentiary hearing is required in this matter.").
The Court will use the above list to analyze the Petitioner's request for an evidentiary hearing. As noted above, the starting point in any such analysis is an understanding of the factual matters presented to in the Petitioner's State habeas proceeding. The Court turns to that issue next.
III. The State Court Proceedings.
As set forth above, Petitioner's entitlement to an evidentiary hearing turns largely on the question of whether the factual basis for his claims was developed in his State court habeas proceeding, and if not, whether the lack of development was a result of the actions or inactions of Petitioner. Despite its obvious relevance to the resolution of the request for an evidentiary hearing, the Court was perplexed to learn that the Petitioner's briefing lacks any mention of the evidence that was actually presented, or that, through the exercise of diligence, could have been presented, in the State court proceedings.
From a reading of the Petitioner's Brief, and without actually looking at the State court record, one would conclude that the State court decided the habeas petition with little or no development of the facts, and after rejecting Elliott's persistent requests for aid in developing the factual record. See, e.g., Petitioner's Brief at 2 ("Mr. Elliott was not granted the litigation resources he requested. . . ."), 9-10 ("The state court consistently and repeatedly denied state habeas counsel access to the necessary tools for adequate development of the factual record — such as investigators and experts — and further denied him such crucial fact-finding vehicles as depositions and evidentiary hearings."), and 11 ("Mr. Elliott vigorously, actively tried to obtain expert and investigative assistance in state court, and requested copious discovery, depositions, and an evidentiary hearing on all of his claims."). It was therefore with great surprise that the undersigned learned from his review of the record that in fact a great body of evidence was gathered and presented — by both the Petitioner and the State — to the State court judge, and that Elliott — who was represented by retained counsel and had the assistance of an investigator and an expert — never once requested any sort of assistance in gathering evidence. Further, contrary to the contention that Elliott requested a hearing on all of his claims, in fact his request for an evidentiary hearing in State court was limited to three claims. Indeed, this Court can reach only one of two possible conclusions from the statements quoted above: either Elliott's counsel has not reviewed the State court record, or he has deliberately misrepresented its contents.
As noted, Elliott claims in his brief that he asked for and was denied the assistance of investigators and experts. This is false on two counts. First, Elliott never filed any motion requesting the assistance of an investigator or an expert. Since no such request was ever made, no order denying such a request was ever entered. Second, Elliott submitted to the State court both an affidavit of an investigator (SH Tr. 23-24) who clearly assisted him, and of a psychiatric expert. (SH Tr. 25-28). Likewise, Elliott's claim that he "requested copious discovery [and] depositions" is belied by the State court record, in that the record contains no such request by him.
The record reflects that Elliott commenced his State court habeas proceeding on April 23, 1997. The trial court entered his Oder Designating Issues and Order for Filing of Affidavits on October 10, 1997 (SH Tr. 5), which directed the filing of affidavits by both the prosecuting attorneys and the defense attorneys. Ten days later, the state court entered a second order which directed the Petitioner to file affidavits on "any claims he deems necessary" by November 20, 1997. (SH Tr. 14.) On that deadline, the Petitioner filed a motion to extend the time for filing affidavits for 30 days. (SH Tr. 35.) The record does not contain a signed copy of an order extending the Petitioner's deadline. On December 16, 1997, however, the State filed a motion requesting additional time to submit affidavits, and in its motion the State referred to the "Court's Order signed on November 20, 1997," which would expire soon (SH Tr. 38), which makes it plain that the trial court did in fact extend the deadline on November 20, 1997. The trial court granted the State's requested extension (id.), as well as one subsequent extension (SH Tr. 40). From this, it appears clear that the Petitioner had ample opportunity to present affidavits in the state habeas proceeding on "any claims he deem[ed] necessary."
Throughout this Order, the Court refers to the record of the State court habeas case as "SH Tr. at ___." That record was supplemented several times, and references to the supplemented sections of the record include a notation that the portion cited is a supplemented portion, and the date of the supplementation, e.g., "SH Supp. Tr. (xx/xx/xx) at ___." Citations to the record of the underlying criminal trial use the abbreviations "S.F" for the Statement of Facts and "Tr." for the transcript.
In fact, the Petitioner took advantage of his opportunity to submit affidavits, filing affidavits of an investigator, a psychiatrist, and himself. The investigator's affidavit states that he tried to obtain an affidavit from Pete Ramirez, but that Ramirez was unwilling to sign an affidavit. The investigator states that Ramirez told the investigator that one of the prosecutors wanted him to testify that he was present when the murder was committed, which he refused because he didn't want to perjure himself. The affidavit continues, stating that Ramirez says "he took off and didn't see [Elliott] again until [he] picked [Elliott] up [later the night of the murder]." The investigator states that Ramirez refused to testify against Elliott because "he did not want to get mixed up in the case" when he "knew that the other guys were changing their stories." (SH Tr. 23.)
The psychiatrist, Wendel Dickerson, states in his affidavit that he had examined Elliott ten years after the trial and determined that he suffers from cognitive and affective disorders, but there is no way to know whether the Defendant was suffering from them at the time of the offense, although in his opinion he felt that it was likely. (SH Tr. 25.) He further states that it is probable that Elliott was incompetent to stand trial and was insane at the time of the offense. He states that because no mental health professional examined Elliott around the time of the incident or the time of trial, his conclusions are "speculative at best." Id.
As set forth below, there in fact was a psychiatric exam performed on Elliott shortly after his arrest, and prior to trial, which concluded that Elliott was both sane at the time of the offense, and was competent to stand trial. Apparently, Dr. Dickerson was not aware of the exam.
Finally, Elliott submitted an affidavit of his own, stating that there was no pack of cigarettes in his cutoffs at the time of their seizure from his home, that he was visited by a psychiatrist while in jail, who said he was visiting at the request of Elliott's attorney, and that neither of his defense attorneys ever had him examined by a psychiatrist, nor did they tell him that he had a right to be examined by an independent psychiatrist. (SH Tr. 15.)
The State also submitted substantial evidence in the form of affidavits. Both defense counsel submitted affidavits, explaining in some detail the basis for their actions in defending the Petitioner. (SH Tr. 42-48). With regard to competency, one of the attorneys, Ira Davis, states that "I do not recall specifically whether I raised the incompetency/insanity/mental issues motion with the trial court nor whether the trial court authorized funds for an expert on the issues. The record should reflect whether either or these occurred." Id. at 45. Both defense counsel state that they spent many hours with Elliott and his wife, and they never had any factual basis for raising either a sanity or competency issue at trial. Id. at 42-43, 45-46. They also identify serious strategic risks that were presented had they raised a sanity defense. Id.
The state court record of the trial reflects that on September 3, 1986, Elliott's counsel Ira Davis filed Defendant's Motion for Complete Physical and Psychiatric Examination. Tr. 56-58. The record reflects in at least two places that this motion was granted by the trial court. Tr. 58 (handwritten notation by trial court); 89 (written order).
Both prosecutors also submitted affidavits (SH Tr. 72-80), in which (among other things) they explain that their plea agreement with Pete Ramirez called for his testimony in exchange for a reduced sentence, all of which was conditioned on Ramirez passing a polygraph exam. They state that they did not present evidence from Pete Ramirez at trial because he failed the polygraph exam. Id. at 72-73. They directly deny soliciting any false testimony from Pete Ramirez. Id. at 72, 77. They further state that they did not solicit the psychological examination of Elliott, nor were they aware of a report from any such exam, and that they did not conceal the existence of a package of cigarettes in the back pocket of Elliott's shorts. Id. at 73, 75, 77-78, 79.
The State also presented the affidavit of Dr. Richard Coons, a psychiatrist, who states that he examined Elliott in September and October of 1986, shortly after the time of the murder. (SH Tr. 81-83.) He states that he was directed to conduct the exam by the trial court, and that he does not recall speaking to either the prosecutors or the defense counsel about the exam. Id. For reasons no one has been able to explain, Dr. Coons' two reports are addressed to the District Attorney, although the Assistant District Attorneys who prosecuted Elliott both testified by affidavit that they never saw the reports. Regardless, the reports conclude that Elliott was sane at the time of the offense, and that he was competent to stand trial. Id.
The State also submitted by records custodian affidavit all of Elliott's medical records from his incarceration on death row, which commenced in 1987. (SH Tr. 99-220.) The records reflect that a Ph.D. reviewed Elliott's medical records and concluded that "[b]ased on the available information, it does not appear that the patient has a major psychiatric disorder or mental retardation. See at patient's request." Id. at 104. The nearly ten years worth of records do not reflect any psychiatric care requested by, or provided to, Elliott during this time.
Finally, Elliott filed two motions in the State court proceedings requesting the right to present evidence beyond affidavits. The first motion requested a hearing on three issues: (1) to demonstrate that the State attempted to enter into a deal with Pete Ramirez, and did enter into a deal with Ricky Elizondo for their testimony; (2) to present evidence of Elliot's insanity at the time of the offense; and (3) to determine who put the cigarettes in the pocket of Elliott's shorts. (SH Tr. 17.) In the second motion, filed two weeks later, Elliott sought a hearing on three issues, very similar to the issues identified in the prior request: (1) whether the prosecutors engaged in misconduct, which includes the claim that not all of the witnesses on that issue would sign affidavits voluntarily; (2) why the defense counsel failed to have Elliott examined by a psychiatrist; and (3) who placed the cigarettes in Elliott's cutoffs. The trial court denied the requests in his order of June 5, 1998, where he stated that "[p]ursuant to Article 11.071 § 9 of the [Texas] Code of Criminal Procedure, this Court has determined that the controverted, previously unresolved factual issues material to the legality of the applicant's confinement can be resolved on the basis of the affidavits filed and personal recollection by this court and without an evidentiary hearing." (SH Supp. Tr. (6/11/98) at 001).
IV. Proceedings in this Court.
In addition to having the benefit of the substantial record created in the State habeas proceeding, Elliott has also received significant assistance from this Court in developing factual matters. For example, in a sealed motion, Petitioner requested the Court apportion funds pursuant to 21 U.S.C. § 848(q)(9). The Court found the motion had potential merit, but lacked the necessary documentation that the funds were "reasonably necessary" as the statute required. The Court therefore ordered Petitioner to supplement his motion. Petitioner's supplementation still did not address the concerns the Court expressed. Giving specific instructions on what it required, the Court ordered Petitioner to again supplement his motion. The deadline to supplement expired without response from the Petitioner, and funds were therefore only partially approved based upon the little information the Court had before it at the time. The Petitioner has not moved the Court to consider any evidence gathered from this appropriation.
Motion for Appointment of Investigator (Clerk's Doc. No. 7) Sealed; Sealed Order Granting in part and Denying in Part Petitioner's Request for Investigator (Clerk's Doc. No. 22).
The Petitioner also moved for, and the Court granted, a request for post-conviction DNA testing, by which the Court authorized the expenditure of funds to test DNA evidence from both the victim's body and the Petitioner's shorts. Petitioner also moved the Court to appoint an expert witness to analyze fingerprints on a cigarette package introduced at trial, and to appoint a forensic photography expert to analyze photograph of the Petitioner's shorts for evidence of the cigarette package. For reasons explained in detail in the Court's prior order on the motion, the Court denied these requests because they were not "reasonably necessary" to his claim. As of this date, Petitioner has not made any motion to engage in discovery under Rule 6 of the Rules Governing § 2254 Cases.
Applicant's Motion for Post-Conviction DNA Testing (Clerk's Doc. No. 11); Order (Clerk's Doc. No. 47).
Motion for Appointment of Expert Assistance(Clerk's Doc. No. 10); Order (Clerk's Doc. No. 47).
Motion for Appointment of Expert Witness (Clerk's Doc. No. 21); Order (Clerk's Doc. No. 47).
The Court, in affording this death penalty case appropriate deference, has liberally construed Elliott's Motion Pursuant to Fed.R.Civ.Pro. 56(f) (Clerk's Doc. No. 44) as a request to take depositions under Rule 6. However, the motion neither mentions Rule 6 nor makes any showing of good cause for discovery under the Rule as detailed more fully in the Court's order on the motion issued this same date.
V. Analysis.
Elliott's argument as to why he is entitled to a hearing is straightforward (although, unfortunately, it is not presented this clearly in his briefing): He contends that because the State court did not hold a live evidentiary hearing, any failure to develop the facts cannot be attributed to him, but rather is attributable to the State. As such, he claims, he is not required to meet the stringent test of § 2254(e)(2), and is entitled to a hearing.This argument fails for several reasons. First, the Fifth Circuit has "repeatedly found that a paper hearing is sufficient to afford a petitioner a full and fair hearing on the factual issues underlying his claims, especially where . . . [as here] the trial court and the state habeas court were one and the same." Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000) (citing Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996)). Indeed, Elliott's briefs fail even to address the fact that a substantial factual record already exists on most, if not all, of his claims, which in itself precludes him from receiving a hearing. Moreover, Elliott ignores the Supreme Court's admonition in Williams that, at a minimum, diligence for purposes of § 2254(e)(2) requires proof that the petitioner requested that the State court grant an evidentiary hearing on the issue on which the petitioner now requests the federal court hold a hearing. Williams, 529 U.S. at 437. As noted above, Elliott only requested a hearing in State court on three issues, far fewer than the seven or eight on which he now asks that the Court hear evidence. Finally, in some cases, simply requesting an evidentiary hearing is not enough to show diligence; rather, the petitioner must show that he was diligent in pursuing the factual development of the claim. Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000). That rule applies here, in that Elliott failed to demonstrate why he did not obtain and file affidavits from many of the witnesses he now seeks to call at an evidentiary hearing. In what follows, the Court will apply these principles to the seven specific issues identified from Elliott's briefs. See supra at 4-5.
On the first issue ("whether the Petitioner was competent to stand trial"), there were affidavits submitted by two psychiatrists addressing the issue, as well as from both defense counsel. In addition, the judge who presided over the trial also heard the State habeas proceeding, and specifically stated that he was relying on his personal recollections of the trial in resolving the factual issues. Elliott does not point to any additional evidence he could present at this stage, and none is necessary, as the record on this point is fully developed.
To the extent Elliott seeks a hearing on the second issue ("what is contained in the District Attorney's case file"), there is no entitlement to a hearing on that point, in that no claim arising out of access to the District Attorney's case file has been preserved for review in this proceeding. There is nothing in the Petition for Writ of Habeas Corpus that complains of the denial of such access, nor did Petitioner raise the issue in the State habeas proceeding. Moreover, Elliott never sought an evidentiary hearing on this point in the State proceedings. And despite the existence of Rule 6 of the Rules Governing § 2254 Cases, which permits a petitioner to request discovery, Elliott has not sought access to the District Attorney's file in this Court. Thus, Elliott has no idea what would be contained in the file, and his request for a hearing on that issue amounts to nothing more than a fishing expedition-which is not permitted. Murphy, 205 F.3d at 816-17.
On the third issue ("what trial defense counsels' reasons were for taking certain actions challenged as ineffective"), the record was fully developed in the State proceedings. Both defense counsel filed affidavits explaining their reasons for challenged actions, and the State court also had the benefit of presiding over the trial, and thus witnessed many of the challenged actions (or inactions) himself. Accordingly, no evidentiary hearing is required on this issue.
The fourth and seventh issues ("whether the jurors considered evidence that is alleged to have been false, and alleged to have been knowingly presented by the prosecution," and "whether the jurors understood the meaning of `beyond a reasonable doubt' in the jury charge") both involve a request to elicit testimony from jurors. There is no explanation in the briefs, however, as to why Elliott did not collect this evidence in the State court proceedings. Clearly, he had the benefit of an investigator in the State proceedings (since his investigator filed an affidavit), and he never once asked the Court for assistance in obtaining affidavits from jurors. Nevertheless, he never filed affidavits from the jurors. That alone demonstrates a lack of diligence. Moreover, Elliott did not seek an evidentiary hearing in State court on any issue related to the jurors. This too prevents him from claiming diligence under the Williams rule that minimal diligence requires at least asking for an evidentiary hearing on an issue. Williams, 529 U.S. at 437. Finally, even if not barred by these factors, the Court would not exercise its discretion under Rule 8 of the Rules Governing § 2254 Cases to grant a hearing on this issue because it would amount to nothing more than a fishing expedition. Murphy, 205 F.3d at 814. Elliott was conditionally granted funds by this Court to interview jurors, but he failed to file the required material to obtain those funds, despite being given ample opportunity to do so. Accordingly, the Court assumes that Elliott has no idea what the jurors would say if called to testify, and whether they would even support his claims, and an evidentiary hearing on these issues would plainly be a fishing expedition. For all of these reasons, Elliott is not entitled to a hearing on this point.
See Sealed Order dated October 13, 2000 (Clerk's Doc. No. 50), which details the procedural history of the request. Although these matters were originally sealed, there is no longer any basis to keep the information related in the text under seal, given the Court's decision in this order not to conduct an evidentiary hearing.
The fifth issue identified from the Petitioner's briefing asks "whether the prosecution engaged in misconduct in eliciting allegedly false testimony, suppressing the testimony of Pete Ramirez, or planting a pack of cigarettes in the pocket of the Petitioner's shorts which were introduced into evidence." Starting with the last issue — the question of how the cigarettes arrived in the back pocket of Elliott's shorts — there is already an ample factual record from the State proceedings on this point. The issue was covered in detail at the original trial. Further, the affidavits of the prosecutors and the defense attorneys addressed the issue. Although Elliott asked for and was denied an evidentiary hearing on the issue in State court, the basis of his request was that the record was not fully developed because the police officers and investigators did not file affidavits. SH Tr. at 17, 32. This argument overlooks the fact that the trial court held a hearing during the murder trial at which the officers testified regarding the shorts and the presence of the cigarettes. S.F. vol. 19, 682-688. Thus, there is a full factual record already developed on this point, and nothing new would be added by a hearing, nor does Elliott so contend. Finally, this Court refused to approve the allocation of funds for photographic and fingerprint experts on this issue, finding that the inquiry was not "reasonably necessary." See Order of September 28, 2000 (Clerk's Doc. No. 47). For the same reasons, Elliott is not entitled to an evidentiary hearing regarding the cigarettes.
On the questions regarding Pete Ramirez and the allegedly perjured testimony, some factual background is necessary to the resolution of the request for an evidentiary hearing. To recap the allegations, Elliott contends that "the prosecutors solicited one or more co-defendants to change their testimony and commit perjury, which constituted prosecutorial misconduct," and "Mr. Ramirez can establish that the State knowingly presented perjured testimony." Petition for Writ of Habeas Corpus by a Person in State Custody (Clerk's Doc. No. 13) at 7, 11. The current state of the record on these allegations (as contained in the affidavit of Elliott's investigator, the letter from Pete Ramirez's family, and the affidavit of the prosecutor) is set out in detail in the Court's Order on Elliott's Rule 56(f) Motion entered contemporaneously with this Order, and thus will not be repeated here.
Unlike some of the other claims raised in the instant motion, on this issue Elliott did request an evidentiary hearing in the State proceedings. In explaining the need for a hearing, he noted that "[a]lthough statements which describe [the] facts were given to a private investigator working for Mr. Elliott, none of the witnesses to those facts were willing to sign affidavits to that effect. . . . Applicant believes that they would recount the same facts if they were subpoenaed to an evidentiary hearing. . . ." (SH Tr. at 17.) Plainly, the reference to the unnamed "witnesses" is a reference to Pete Ramirez, whose statements are the only ones recounted in the affidavit of the investigator. As noted earlier, the State court denied Elliott's request for an evidentiary hearing.
In the Order concerning the Rule 56(f) Motion entered this date, the Court has denied Elliott the opportunity to take the depositions of Pete Ramirez, his family members, or the eyewitnesses who testified at trial. In that Order, the Court explains in detail why there is not "good cause" to take those depositions, and why such discovery would amount to nothing more than a fishing expedition.
For these same reasons, Elliott is not entitled to an evidentiary hearing on these issues. The fact that Elliott requested and was denied a hearing in State court is not determinative of the issue. See Dowthitt, 230 F.3d at 758; Murphy, 205 F.3d at 815-17. Indeed, as noted in the other Order entered today, the facts of this case are very similar to those in Murphy, where the Circuit affirmed the denial of an evidentiary, stating:
Murphy alleges that there was an undisclosed secret deal between the prosecutor and MacGregor, but that he needs more discovery and an evidentiary hearing in order to fully develop this claim. His request in this regard is tantamount to an impermissible fishing expedition. See Perillo [v. Johnson], 79 F.3d [441] at 444 [(5th Cir. 1996)] (noting that Rule 6 of the Rules Governing § 2254 Cases "does not authorize fishing expeditions").
Murphy, 205 F.3d at 816-17. For these same reasons, the Court denies Elliott's request for an evidentiary hearing on his prosecutorial misconduct claims.
Elliot's sixth, and final, ground for an evidentiary hearing is his purported need to present evidence regarding "whether the State violated Brady in failing to turn over a psychiatric report of the Petitioner and the polygraph test results of Pete Ramirez." Elliott cannot, however, show diligence on this claim, in that he never requested an evidentiary hearing on this point in the State court proceeding. Williams, 529 at 437. Moreover, the report of the psychiatrist, as well as his affidavit, were made a part of the State court record, and it is plain that the report was not Brady material given that it concluded that the Petitioner was sane at the time of the offense. Finally, with regard to Ramirez's polygraph results, Petitioner himself admits that he does not know whether it is Brady material, see Petition for Writ of Habeas Corpus by a Person in State Custody (Clerk's Doc. No. 13) at 31, and rather asks only that the report be "turned over to th[e] Court." The proper method for obtaining the report would have been a request for discovery under Rule 6, which, as discussed in several places above, Elliott has ignored.
Among other things, a valid Brady claim requires proof that the evidence was favorable to the defense. Blackmon v. Scott, 22 F.3d 560, 564 (5th Cir. 1994).
VI. Conclusion.
For all of the reasons set forth above, the Court hereby DENIES the Petitioner's request for an evidentiary hearing in this case, as requested in Petitioner's Briefing in Support of Evidentiary Hearing (Clerk's Doc. No. 67), as well as Petitioner's Supplemental Briefing is Support of Motion for Evidentiary Hearing (Clerk's Doc. No. 69).