Opinion
No. 4:99-CV-521-G
June 17, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
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), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendations of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254. Petitioner Edward Lewis Lagrone prays that his conviction for capital murder and sentence of death be vacated and a new trial ordered.
B. PARTIES
Petitioner Edward Lewis Lagrone ("Lagrone") is in the custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
A jury convicted Lagrone of capital murder, and assessed his punishment at death by lethal injection. State v. Lagrone, Cause No. 0443410D (297th Judicial District Court of Tarrant County, Texas May 14, 1993). The Texas Court of Criminal Appeals affirmed the conviction and death sentence on direct appeal, and the United States Supreme Court denied Lagrone's petition for a writ of certiorari on October 14, 1997. Lagrone v. State, 942 S.W.2d 602 (Tex.Crim.App.), cert. denied, 522 U.S. 917 (1997). Lagrone subsequently filed a state application for writ of habeas corpus on October 15, 1998, raising thirty-eight claims for relief (State Habeas Transcript, vol. 1 at 3-15). The Court of Criminal Appeals denied relief in an unpublished written order adopting the trial court's findings of fact and conclusions of law. Ex parte Lagrone, No. 40,890-01 (Tex.Crim.App. June 23, 1999).
Through court-appointed counsel, Richard Alley and Claudia Montani, Lagrone filed his initial federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 7, 1999. Respondent filed an answer and motion for summary judgment on January 7, 2000, and furnished the state court records. On March 1, 2000, this Court ordered both parties to submit briefs on the issue of whether the initial petition was timely filed under the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2244(d). Respondent filed a preliminary response to this Court's order on March 27, 2000, asserting that Lagrone's federal habeas petition was time-barred and should be dismissed. Lagrone, through his court-appointed counsel, filed an initial reply to this response on March 28, 2000, and an amended reply on April 26, 2000.
On August 10, 2000, the district court ordered court-appointed counsel Richard Alley removed from the instant case and appointed Christopher Curtis as substituted co-counsel. On September 21, 2000, this Court granted additional time for Lagrone to file an amended habeas petition and any amended replies and ordered that all such pleadings be filed within 120 days of the order. On January 18, 2001, and again on January 29, 2001, this Court extended the deadline to file amended pleadings. Lagrone filed both an amended habeas petition and an amended reply to the State's preliminary response to the Court's order regarding the time-barred issue on February 5, 2001. Lagrone then filed a corrected amended petition on March 27, 2002.
D. RULE 5 STATEMENT
Respondent states that Lagrone has exhausted available state court remedies, except with regard to a portion of Lagrone's seventh ground for relief, in which he summarily states that his appellate counsel was ineffective, and Lagrone's twenty-third ground for relief, which alleges that Lagrone is actually innocent of capital murder. Respondent asserts that Lagrone did not address these claims either on direct appeal or in his state writ of habeas corpus. Nonetheless, Respondent asserts that these claims should be denied on their merits pursuant to 28 U.S.C. § 2254(b)(2).
An application for a writ of habeas corpus may be denied on its merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
28 U.S.C. § 2254(b)(2) (West 2001).
E. ISSUES
In twenty-six grounds for relief, Lagrone raises the following claims:
1. He was denied his federal constitutional rights to due process, a fair trial, the equal protection of the law, the right to confront witnesses, and the right to effective assistance of counsel because the trial court did not allow the defense to present evidence of the cocaine use by one of the State's witnesses, Pamela Lloyd, and the effect of the drug use on her credibility and reliability (ground one);
2. He was denied his rights to due process and equal protection of the law because he was not provided Pamela Lloyd's victim impact statement until after the trial ended (ground two);
3. He was denied his rights to due process and equal protection of the law because he was not provided offense or investigation reports of the investigation of drug activity at the house where the murders occurred (ground three);
4. He was denied his rights to due process, the equal protection of the law, and the prohibition against cruel and unusual punishment because the jury was not informed about his parole eligibility if given a life sentence and because Texas does not have a life-without-parole sentencing option. Furthermore, Lagrone was denied effective assistance of counsel because defense counsel did not request a jury instruction on parole eligibility and appellate counsel did not argue this issue on appeal (grounds four through seven);
5. He was denied his rights to due process and equal protection of the law because the State's burden of proof on the future dangerousness punishment issue was reduced from beyond a reasonable doubt to only a "probability" and because the term "probability" as that term is used in the punishment jury charge was not defined for the jury (grounds eight and nine);
6. He was denied a fair trial and due process of law when the trial court restricted defense counsel's questioning of several members of the jury panel about their understanding of certain terms used in the jury instructions and when the trial court denied defense counsel's challenge for cause to panel member David Conner (grounds fourteen through twenty);
7. He was denied his rights to due process, equal protection of the law, and his Fifth and Sixth Amendment rights of counsel because he was compelled to submit to a State sponsored psychiatric examination (grounds ten through thirteen);
8. His execution after review under the current clemency procedures would violate his right to due process and constitute cruel and unusual punishment, and Texas' clemency procedure violates an international treaty signed and ratified by the United States (grounds twenty-one and twenty-two);
9. He has been denied due process, a fair trial, and equal protection of the law because he was selectively prosecuted and because the State created the false impression that he was the only person who entered the house on the night of the shooting when he is actually and factually innocent of capital murder (ground twenty-three);
10. He was denied his right to effective assistance of counsel because his trial counsel presented the testimony of psychologist Richard Schmitt at the punishment phase of the trial (ground twenty-five); and
11. He has been denied his due process and equal protection rights during the post-conviction process because the State has denied him access to the State's file and evidence (ground twenty-six).
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
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, __ U.S. __, 122 S.Ct. 194, 151 L.Ed.2d 136 (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).
G. FACTUAL BACKGROUND
The Texas Court of Criminal Appeals recited the following factual background in its opinion on direct appeal:
In May 1991, the Lloyd family was living at 2004 Amanda Street in Fort Worth. The Lloyd family included eight people: three homicide victims-ten-year-old Shakeisha Lloyd, and Shakeisha's two great aunts, eighty-three-year-old Zenobia Anderson and seventy-six year-old Caola Lloyd, as well as five survivors of the homicidal incident-Pamela Lloyd (Shakeisha's mother), Shakeisha's three siblings, and Dempsey Lloyd (Shakeisha's uncle).
Pamela Lloyd first met appellant in 1985, and the two were involved in a relationship for approximately six months. After their breakup, however, the Lloyd family maintained contact with appellant because he would intermittently visit the children at home.
On May 26, 1991, Pamela Lloyd noticed that Shakeisha's body was changing and that her breasts were getting bigger. Because this seemed unnatural, Pamela Lloyd took Shakeisha to the local hospital for an examination where she learned Shakeisha was pregnant. Pamela Lloyd then contacted the police about appellant's rape of her daughter. In response to the rape charges, the police took Pamela Lloyd to appellant's Arlington apartment where she asked appellant's sister to have appellant contact her. When appellant called her, Pamela Lloyd asked him how he could have "messed" with Shakeisha. Appellant denied having sexual relations with Shakeisha so Pamela Lloyd hung up the telephone. Later that day, however, appellant called Pamela Lloyd back to tell her that he was sorry for what he had done to Shakeisha and that he would take care of the baby. Pamela Lloyd responded with outrage because appellant had molested Shakeisha nine times, and threatened to press charges.
The next day, Shakeisha contacted appellant via his beeper, and Pamela Lloyd used the opportunity to inform him that Shakeisha wanted an abortion which would cost approximately $895 dollars. Appellant responded by assuring Pamela Lloyd that he would provide the abortion money. On Wednesday, May 29, 1991, appellant attempted to get Pamela Lloyd to drop her complaint by offering to give her $1000 dollars for the abortion and $500 dollars for herself. Pamela Lloyd, however, refused to withdraw the complaint. Appellant called later that day and told Pamela that he would deliver the money for the abortion on Thursday.
That same Wednesday, appellant went to the Winchester Gun Store with his friend, Anetta Daniel. After supplying Daniel with the purchase money, appellant asked her to purchase a double-barrel, pistol-grip shotgun. Daniel purchased a Winchester slide-action shotgun which appellant put in the trunk of his car. At trial, Robert Wilshire, an employee of the gun store, testified that this shotgun qualifies as a deadly weapon.
On Thursday, May 30, 1991, Pamela Lloyd got up around 4:00 a.m. to get some water from the kitchen because she was having trouble sleeping. After she had left the kitchen and entered the bathroom, somebody knocked at the front door and demanded that one of the Lloyds "open the door." Shakeisha's brother, Charles, identified the voice as appellant's, but Dempsey Lloyd answered the door. After allowing Dempsey Lloyd to open the door and ask him what he wanted at such an early hour, appellant shot Dempsey Lloyd with the aforementioned shotgun. Dempsey subsequently grappled with appellant over the gun.
Following this struggle, appellant went into the front bedroom where Caola Lloyd was sleeping and fired a shot. Appellant then went into the kitchen where Zenobia Lloyd was washing clothes and fired another shot. As Pamela Lloyd and Shakeisha attempted to collect and hide the other children, several more shots were fired. Pamela Lloyd then discovered Shakeisha lying on the floor with "half of her face blown off." Although Dempsey Lloyd pled for mercy, appellant shot him a second time before leaving. Dempsey Lloyd was still able to go next door and call for emergency "911" assistance despite his severe wounds.
Following the above homicidal incident, the Tarrant County Medical Examiner's Office performed autopsies on Caola Lloyd, Zenobia Anderson, and Shakeisha Lloyd. The medical examiner determined the cause of death for all three of the deceased victims to be a single homicidal incident. Caola suffered an entry wound caused by a shotgun in the anterior portion of her neck going through the left side of her throat. She also had a defensive injury to her right hand resulting in the dismemberment of her index finger, which was consistent with her right hand being in front of her face when the gun shot was fired. Zenobia Anderson had an entry wound caused by a shotgun to the back of her neck. Shakeisha Lloyd had an entry wound caused by a shotgun to her left cheek and a corresponding exit wound just below the rim of the right mandible jaw bone. She also had an injury to her right hand, causing the total dismemberment of her ring finger. The medical examiner determined there were most likely two gun shots.
In addition, the medical examiner recovered a four-to-five month-old female fetus, which was preserved for blood and DNA testing. Dr. Arthur Eisenberg, a forensic pathologist, compared appellant's blood samples with those recovered from Shakeisha Lloyd, and conducted DNA testing to establish paternity. Based upon this examination, Dr. Eisenberg concluded that appellant's paternity of Shakeisha Lloyd's unborn child was 99.999% certain; and testified that, with the exception of having an identical twin brother, appellant was the father of that child.
Lagrone, 942 S.W.2d at 607-8 (footnote omitted). The Court of Criminal Appeals also described the evidence that the State presented in the punishment phase of the trial, including evidence that Lagrone had been convicted of murder in 1977 and received a twenty-year sentence, testimony from two police officers who testified that Lagrone was seen selling cocaine and was in possession of cocaine, testimony from two women who testified that Lagrone sexually assaulted them when they were teenagers, and testimony from several witnesses that Lagrone had a bad reputation in the community for peacefulness. Id. at 608.
H. STATUTE OF LIMITATIONS
Respondent has asserted that Lagrone's petition is barred by the statute of limitations provision of the AEDPA. Lagrone responds that his federal petition was filed timely and that, if it was not filed timely, the time period should be equitably tolled so that his petition is considered timely by this Court.
Under the AEDPA, a person in custody under a state judgment has one year to file his federal habeas petition. 28 U.S.C. § 2244(d)(1). In Lagrone's case, this one year statute of limitations began to run when his state judgment became final. 28 U.S.C. § 2244(d)(1)(A). Both parties agree that the state court judgment became final on October 14, 1997, when the Supreme Court denied certiorari on direct appeal. See 522 U.S. 917 (1997). However, under § 2244(d)(2) limitations is tolled during the time that a properly filed application for state post-conviction or other collateral review is pending. Moreover, as Respondent concedes, the Texas Attorney General's office agreed in a class action settlement to toll the limitations period from the time a prisoner under a sentence of death requests appointment of state habeas counsel until the actual appointment of such counsel. See Pyles v. Morales, No. 3:96-CV-2838-D (N.D. Tex. Dec. 2, 1996) (Agreed Order of Dismissal Without Prejudice). Thus, the statute of limitations is tolled thirty-six days for the time period from December 18, 1997, when Lagrone requested appointed counsel until January 23, 1998, when counsel was appointed. And, the statute of limitations is also tolled for 251 days for the period from November 19, 1998, when state habeas counsel filed a state habeas corpus application, and June 23, 1999, when the Court of Criminal Appeals denied relief.
Lagrone contends that the statute of limitations should be tolled further. First, he argues that the record is unclear as to the exact date on which he requested the appointment of state habeas counsel. Respondent, however, has submitted a copy of the trial court's findings of fact regarding Lagrone's request for state habeas counsel. These findings are file-stamped December 18, 1997. (Respondent's preliminary response to the Court's order of March 1, 2000, Exhibit J). Because Lagrone presents no evidence that he requested counsel on an earlier date, this document is the best evidence of the date on which Lagrone requested the appointment of counsel, and this Court will consider December 18, 1997, as that date on which Lagrone requested the appointment of state habeas counsel.
Lagrone further contends that the statute of limitations should be tolled from the date on which he asked for appointed counsel until the date his state habeas application was filed, as all of this time should be considered as time when a "properly filed" state habeas application was pending. As support for this argument, Lagrone points to cases from other circuits. Lagrone also points out that during the time period from January 23, 1998, the day state habeas counsel was appointed, until October 15, 1998, when the state habeas application was filed in state court, 255 days had run against the AEDPA one-year time limit before the case ever reached federal court. Nevertheless, Fifth Circuit case law does not support Lagrone's argument that a state habeas application is "properly filed" when a prisoner requests appointed counsel. To the contrary, the Fifth Circuit has defined a "properly filed" application as an application that conforms with a state's applicable procedural filing requirements. Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999). From this definition, it is clear that, in order for an application to be considered "properly filed," it must, in fact, be filed. Accordingly, the statute of limitations did not begin to toll under the provisions of § 2244(d)(2) until October 15, 1998, when Lagrone's state habeas application was filed with the trial court. When the one-year deadline is tolled for thirty-six days for the time period between the request for and the appointment of counsel and 251 days for the time period between the filing of the state habeas application and its denial, Lagrone's deadline for filing his federal habeas petition is extended from October 14, 1998, one year after the Supreme Court denied certiorari on direct appeal, until July 28, 1999. Because Lagrone's initial federal petition was not filed until December 7, 1999, it was not filed within the one-year statute of limitations.
Nevertheless, the AEDPA's one-year statutory deadline is not a jurisdictional bar and can, in appropriate exceptional circumstances, be equitably tolled. David v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). Courts must examine each case in order to determine whether there are sufficient exceptional circumstances present that warrant equitable tolling. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Accordingly, it is appropriate to look to the circumstances of this case in order to determine whether equitable tolling is warranted.
On June 28, 1999, five days after the Court of Criminal Appeals denied relief at the state habeas level, Lagrone filed a motion for appointment of federal habeas counsel. This motion was granted, and this Court appointed Richard Alley and Claudia Montani to represent Lagrone in his federal habeas case on July 30, 1999, two days after the statute of limitations expired.
The order dated July 30, 1999, appointing habeas counsel directed counsel to file a timely federal habeas petition and demonstrate that it was timely filed under 28 U.S.C. § 2244(d)(1), citing case law regarding the one-year statute of limitation and equitable tolling. Nevertheless, the initial petition was not filed until December 7, 1999, and only cursorily addressed the statute of limitations issue and did not address equitable tolling at all. The undersigned has previously found that Alley's representation of Lagrone was deficient. Alley was aware of a statute of limitations problem when he was first appointed to represent Lagrone, made the choice not to file a skeletal petition earlier in order to stop the time from running, and made the further choice not to raise an equitable tolling argument in the initial federal petition.
On November 2, 2000, the undersigned made findings of fact and conclusions of law that Richard Alley's representation of Lagrone had been deficient and recommending that Alley be suspended from the practice of law in the Northern District of Texas for one year and that he refund to the court a portion of the attorney's fees he had been paid in this case. Alley filed objections to these findings and conclusions. On January 22, 2002, District Judge Joe Kendall issued an order overruling Alley's objections and accepting, with some modifications, the Magistrate Judge's findings and conclusions. On January 29, 2002, Alley appealed the district court's order, and that appeal is currently before the Chief Judge of the Northern District of Texas.
"Equitable tolling does not lend itself to bright-line rules;" a court should look to general principles as a guide. Moreover, a court "must be cautious not to apply the statute of limitations too harshly." Fisher, 174 F.3d at 713. However, to be entitled to equitable tolling, a petitioner must diligently pursue § 2254 relief. See Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001); Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). Indeed, the Fifth Circuit has denied equitable tolling to a prisoner under a death sentence where the reason that any federal petition would be time-barred was that the prisoner chose to represent himself at the state habeas level and then filed no state habeas petition, although he had a year in which to do so. Cantu-Tzin v. Johnson, 162 F.3d 295, 299-300 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999). But, the Fifth Circuit has allowed equitable tolling where a petitioner has relied, to his detriment, on the actions of the district court which, in granting a motion to withdraw a federal habeas petition, allowed a second petition to be time-barred. United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000).
Other circuits have addressed instances in which equitable tolling has been applied in death penalty cases due to surrounding circumstances that caused the federal petitioners to be time-barred. In Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), a capital case, the Ninth Circuit ruled that the AEDPA statutory deadline for filing a federal writ of habeas corpus would be equitably tolled because the petitioner's attorney had moved out of state, and this move made it impossible for another attorney to file a timely petition. Thus, the Ninth Circuit equitably tolled the statutory deadline because it was a case where an indigent petitioner under a death sentence had a statutory right to appointed counsel and it was the dereliction of the appointed attorney that prevented the petitioner from filing the petition he was statutorily entitled to file. Id.; Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001), petition for cert. filed, 70 USLW 3580 (2002) (No. 01-1306). Likewise, in Banks v. Horn, 271 F.3d 527, 534-35 (3rd Cir. 2001), the Third Circuit held that the AEDPA statutory deadline should be equitably tolled in a death penalty case because, although his state habeas petition was dismissed because it was filed after Pennsylvania's one-year deadline and therefore was not a properly filed state petition under § 2244(d)(2), the state law filing requirements were unclear and petitioner promptly filed his federal petition two weeks after the state proceedings were concluded.
When this Court initially appointed federal habeas counsel, the time period for filing a federal petition had already expired, due in large part to the state habeas proceedings and in small part to the time between Lagrone's motion for appointment of counsel filed in this Court and the order actually appointing counsel. The Fifth Circuit has stated that, when a prisoner contends that his ability to file a federal habeas petition has been affected by a state proceeding, the court should look at the facts to determine whether equitable tolling is warranted. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). In the instant case, the state habeas court granted two motions for extensions of time to file the state habeas petition, thereby almost exhausting the AEDPA one-year statutory limitation. Under all of these circumstances equitable tolling is warranted. Moreover, under 21 U.S.C. § 848(q)(4)(B), indigent prisoners under sentences of death are entitled to appointed counsel to represent them in federal habeas proceedings. Because Lagrone was entitled to the appointment of federal habeas counsel, and the process of the appointment of counsel by this Court also contributed to the exhaustion of the one-year deadline, equitable tolling is appropriate.
Even after federal habeas counsel was appointed-and informed that there was a problem with limitations-there was a four month period until a federal habeas petition was filed. Although the Fifth Circuit has held that equitable tolling is not warranted where the petitioner does not diligently pursue habeas relief those Fifth Circuit cases were non-capital cases where the pro se petitioners were responsible for filing the petitions themselves, rather than relying on an attorney's expertise as Lagrone and other prisoners under death sentences must do. See Melancon v. Kaylo, 259 F.3d at 408; Scott v. Johnson, 227 F.3d at 262; Coleman v. Johnson, 184 F.3d at 401. Accordingly, this Court concludes that Lagrone should not be penalized because his court-appointed attorney did not act in a diligent manner in pursuing habeas relief. Because the state habeas process and the federal appointment of counsel process, both ofwhich were not under Lagrone's control, were the proximate causes of the expiration of the AEDPA one-year deadline, and because Lagrone should not be penalized because his original federal habeas counsel did not promptly pursue habeas relief, equitable tolling is warranted here, and Lagrone's initial habeas petition filed on December 7, 1999, should therefore be considered a timely federal habeas corpus petition.
I. EXAMINATION OF THE ISSUES
1. Evidence of Pamela Lloyd's drug use
Lagrone contends that his federal constitutional rights were violated when the trial court refused to allow the defense to present evidence of prior cocaine use by one of the State's witnesses, Pamela Lloyd. Lagrone asserts that, had he been allowed to question Pamela Lloyd about her past drug use, he could have impeached her testimony in which she identified Lagrone's voice as the voice she heard inside of the house at the time of the murders.
At trial, defense counsel stated that they wished to question Pamela Lloyd about her prior drug use and argued that this evidence was relevant to her ability to perceive and remember events. (R. 25:6). The State objected, and Pamela Lloyd was questioned on the issue of her drug use outside of the jury's presence. She testified that she had not been using cocaine on the day of the murders, May 30, 1991, and had not used cocaine since May 24th or May 25th, as she had learned of Shakeisha's pregnancy on May 26th and stopped using cocaine at that point so that she could be of help to her daughter. She also testified that on the day of the murders she was no longer under the effects of the cocaine she had taken several days earlier. (R. 25:7-9). She acknowledged that she had smoked crack cocaine for four or five years before the murders and that her youngest child was born addicted to cocaine. (R. 25:10-13). The trial court ruled that defense counsel could not ask Pamela Lagrone about her prior drug use as this would be prohibited under Rule 608(b) of the Texas Rules of Criminal Evidence. (R. 25:17). Later in the trial, defense counsel presented the testimony of a psychologist, Richard Schmitt, outside of the presence of the jury. Schmitt testified that, in his opinion, a person who had used crack cocaine for several years and stopped for a period of five days would still be psychologically affected by the cocaine as the person would be having depressive symptoms that would make it difficult for her to be productive and cause her to be focused internally and therefore have a diminished responsiveness to external stimulation, including voices. (R. 27:639-47). Schmitt also acknowledged that there were varied reactions to cocaine, and some people were able to work continually while taking cocaine or stop taking it without problems. He also admitted that he had never met or spoken to Pamela Lloyd and that a person would have a greater ability to identify a very familiar voice than a stranger's voice. (R. 27:647-49, 661). The trial court ruled that Schmitt's testimony was not admissible to impeach Pamela Lloyd's testimony (R. 27:662).
On direct appeal, the Court of Criminal Appeals held that the trial court did not err in forbidding the defense from impeaching Pamela Lloyd's ability to perceive and recall details of the crime with her previous illegal drug use and that Lagrone's rights under the Confrontation Clause were not violated by the trial court's decision to limit cross-examination of Pamela Lloyd. In reaching this decision, the Court of Criminal Appeals relied on Rule 608(b) of the Texas Rules of Criminal Evidence (now the Texas Rules of Evidence), which prohibits the impeachment of a witness with that person's specific conduct, except to expose bias, demonstrate a lack of capacity, or correct any misrepresentations made during direct examination. Lagrone, 942 S.W.2d at 612-13; see TEX. R. EVID 608(b). The court found that the defense was required to demonstrate a drug-induced impairment during Pamela Lloyd's observance of the crime in order to impeach her capacity to perceive based on her drug use, and this had not been shown. Id. at 613. With regard to Lagrone's Confrontation Clause claim, the court ruled that, because Pamela Lloyd was not under the influence of cocaine during the commission of the murders, evidence of Pamela Lloyd's inchoate drug use was both prejudicial and collateral, and therefore the trial court's limit on cross-examination was a reasonable one that did not violate Lagrone's federal constitutional right to confront witnesses against him. Id. at 613-14.
The state court's decision on this claim was not an unreasonable application of federal law. In federal habeas proceedings the court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). Moreover, in federal habeas actions, a state court's evidentiary rulings will mandate relief only when an error is so extreme that it constitutes a denial of fundamental fairness. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S. 1118 (1999); Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir. 1986). And, even if the trial court erred in not admitting evidence, absent a specific constitutional violation, federal habeas review of trial error is limited to whether the error so infected the trial with unfairness as to deny due process. Donnelly v. DeChristofero, 416 U.S. 637, 642 (1974).
Thus, Lagrone must show that the limitation on the cross-examination of Pamela Lloyd was a violation of the Confrontation Clause of the Sixth Amendment or that the error so infected the trial with unfairness as to constitute a denial of due process. The Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him, which includes the right of cross-examination as a means of testing the believability of the witness and truth of his testimony. Davis v. Alaska, 415 U.S. 308, 315 (1974). This right, however, is subject to the wide latitude of trial judges to impose reasonable limits on cross-examination because of concerns of harassment, prejudice, confusion of the issues, safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986).
Lagrone cites United States v. Landerman, 109 F.3d 1053 (5th Cir 1997), as support for his claim that his constitutional right to confront witnesses who testify against him was violated. Landerman, however, does not support Lagrone's claim. In Landerman, the Fifth Circuit reversed fraud convictions because the defendants were not allowed to question a government witness about a pending state felony charge and its possible effect on his motivation to testify. In ruling that excluding this cross-examination was a violation of the defendants' constitutional confrontation rights, the court emphasized that the witness in question was an accomplice who was cooperating with the government and was crucial to the government's case. The court held that the Confrontation Clause was violated because the defense was not allowed to inquire about the witness's potential partiality. Id. at 1061-63.
In this case, defense counsel was prevented from questioning Pamela Lloyd, not about her motivation in testifying against Lagrone, but about her prior drug use. Given that the total of Pamela Lloyd's testimony was that she heard Lagrone, a man she had known for a number of years and dated for a period of time, speak one sentence inside of her house at the time of the murders, and that there were two other people who gave actual eyewitness identification testimony (R. 25:268-86; 26:525-26), it cannot be said that Pamela Lloyd's testimony was crucial to the State's case. Moreover, as there is no evidence that Pamela Lloyd's prior drug use would have so inhibited her powers of perception that she could not recognize a familiar voice, it cannot be said that the limiting of defense counsel's cross-examination of her or the prevention of Schmitt's testimony so limited the defense's ability to adequately confront Pamela Lloyd that it constituted a federal constitutional violation. Lagrone's first ground for relief is without merit.
2. Victim Impact Statement
Lagrone asserts that he was denied his due process and equal protection rights because the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by not providing defense counsel with Pamela Lloyd's victim impact statement until after trial. Specifically, Lagrone argues that, because Pamela Lloyd wrote in the statement that, as a result of the death of her daughter, her mind "comes and goes," this statement could have been used by defense counsel to impeach Pamela Lloyd's identification testimony.
On June 13, 1991, approximately one month after her daughter and aunts were murdered, Pamela Lloyd completed a form entitled "Victim Impact Statement." After a number of questions regarding the crime and its effect on the person completing the form, the form has two blanks lines. Above these lines, there are the following instructions: "Please give any other information that you believe is important about the effect of this crime on you and your family. Please do not relate any facts about the crime itself. Those facts are already available in other reports." In the space allowed, Pamela Lloyd wrote the following words: "afraid, cannot sleep, lack of appetite, mind comes goes." (Tr. 1-A:540-41). This document was not provided to defense counsel until several days after trial. After receiving this document from the State, trial defense counsel filed a motion for new trial, alleging that Lagrone was entitled to a new trial because the State had violated both a pre-trial discovery order and Brady v. Maryland by not disclosing this document to defense counsel before trial. Defense counsel further asserted in this motion that the defense could have used the statement to impeach Pamela Lloyd's testimony that she heard Lagrone's voice in the house when the murders occurred. (Tr. 1-A:537).
Under Brady v. Maryland, the suppression of evidence by the State that is favorable to the accused and material to either guilt or punishment violates a defendant's due process rights under the federal constitution. 373 U.S. at 87. 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 to either guilt or punishment if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Bagley, 473 U.S. at 678.
In addressing this issue on direct appeal, the Court of Criminal Appeals held that, even assuming that Pamela Lloyd's victim impact statement was admissible as impeachment evidence, Lagrone had failed to establish a Brady violation. The Court of Criminal Appeals held that Lagrone had failed to meet the materiality requirement of Brady because, given the context in which Pamela Lloyd made the statement that her mind would "come and go" and given the fact that there were two other witnesses who identified Lagrone as the shooter, he had failed to establish a reasonable probability that the outcome of the trial would have been different had defense counsel known about the statement and used it to attempt to impeach her testimony. Lagrone, 942 S.W.2d at 615.
This decision by the state court was not an unreasonable application of Brady v. Maryland. First, the statement made by Pamela Lloyd that her mind "comes and goes" was not material to her identification testimony because it was in response to a request that she state the effects that the crime had had on her. It was not a statement regarding her perception of the actual murders. Moreover, as noted by the Court of Criminal Appeals on direct appeal, although Pamela Lloyd did identify Lagrone's voice as the one she heard in the house when the murders occurred, Charles Lloyd and Dempsey Lloyd identified Lagrone by sight as the man who shot Dempsey and the other members of their family. (R. 25:70, 268-86; 26:525-26). Furthermore, there was testimony presented that Lagrone had a girlfriend buy the murder weapon for him, that the same gun killed all three victims, and that he had a motive to kill Shakeisha Lloyd and other members of the family as he was the father of Shakeisha's unborn child and Pamela Lloyd was pressing charges against him for sexually assaulting Shakeisha. (R. 25:55-7). Given all of this other evidence linking Lagrone to the crime, the state court's conclusion that the slight impeachment value that Pamela Lloyd's victim impact statement may have had was not material is not an unreasonable application of the Brady standard. Lagrone's second ground for relief should be denied.
3. Offense and Investigation Reports
Lagrone contends that he was denied his rights to due process and equal protection of the law because defense counsel was not provided any police offense or investigative reports concerning drug activity at the house where the murders occurred or reports concerning drug activity by the inhabitants of the house. He argues that, if such reports exist, they could have been used during trial as support for a defense that the murders were not committed by Lagrone, but were instead related to Pamela Lloyd's drug use. Lagrone contends that the State's failure to turn over these alleged reports, and the trial court's failure to order their disclosure, constituted another Brady violation.
The state habeas court, after first finding that the trial court granted defense counsel's pretrial request for all exculpatory and impeachment material, concluded that Lagrone's constitutional rights were not violated when the trial court denied his pre-trial request for copies of police reports. (SHTr. 2:352). This conclusion is not contrary to clearly established federal law. Lagrone has not only failed to establish that there were any police reports about drug activity in the Lloyd house, but he has failed to establish that, if any such reports exist, they are material to either his guilt or punishment. Lagrone makes the broad assertion that the three murders could have been related to Pamela Lloyd's drug use, but presents absolutely no evidence to support this assertion. The federal constitution does not require that the State maintain an open-file policy during a criminal prosecution, much less require that the defense have access to police reports that, even if they do exist, have not been shown to be relevant to the case. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (noting that the Supreme Court has never held that the federal constitution requires that the State maintain an open file policy). Accordingly, this ground for relief is without merit.
4. Parole Eligibility Instruction
Lagrone also contends that he was denied due process and the equal protection of the law, and has been subjected to cruel and unusual punishment because the jury in his case was not told about his parole eligibility if given a life sentence and because Texas does not have a life-without-parole sentencing option. He further contends in his seventh ground for relief that his trial counsel were ineffective for not requesting a jury instruction on parole eligibility, and his appellate counsel was ineffective for not raising this issue as a claim on direct appeal.
Lagrone asserts that, had he received a life sentence, he would have been ineligible for parole for thirty-five years. But, contrary to this assertion, Lagrone was convicted of a capital murder that was committed in May of 1991, before the law changed, effective September 1, 1991, to increase the parole eligibility for a life sentence for capital murder to thirty-five years. Had Lagrone been sentenced to life imprisonment, he would have been eligible for parole in only fifteen years. TEX. CODE CRIM. PROC. ANN. art. 42.18 § 8(b) (Vernon 1991), repealed by TEX. GOV'T CODE ANN. § 508.145(b) (Vernon 1997). See also TEX. CODE CRIM. PROC. ANN. art. 42.18 § 8(b) (Vernon Supp. 1992). Pursuant to state law at the time of his trial, the jury in Lagrone's trial was not informed about his parole eligibility if given a life sentence, and trial counsel did not request a jury instruction informing the jury about his parole eligibility if given a life sentence.
As support for his contention that his federal constitutional rights were violated because the jury in his case did not receive any information about his parole eligibility, Lagrone relies on the Supreme Court case Simmons v. South Carolina, 512 U.S. 154 (1994). Simmons is a death penalty case in which a plurality of the Supreme Court held that, where a defendant's future dangerousness is an issue in a capital case, and the sentencing options are death or life without the possibility of parole, due process allows the defendant to inform the sentencing jury about his parole ineligibility. Id. at 156.
Contrary to Lagrone's argument that Simmons is applicable to his case, however, the plurality opinion in Simmons specifically limited its holding to cases where the sentencing option is between death and life without parole. Justice Blackmun, writing for the Court, went further and stated that "[i]n a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we will not lightly second-guess a decision whether or not to inform a jury of information regarding parole." Id. at 168. And the opinion also noted that, differing from South Carolina, Texas has no life-without-parole sentencing option. Id. at 168, n. 8. Moreover, since the Supreme Court's decision in Simmons, the Fifth Circuit has held that a trial court does not violate a Texas capital murder defendant's Eighth Amendment rights or due process rights by refusing to instruct the jury regarding parole eligibility because Simmons does not apply in Texas cases, but only in cases where life-without-parole is a sentencing option. Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir.), cert. denied, 121 S.Ct. 2226 (2001); Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000); Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994).
Lagrone also cites Brown v. Texas, 522 U.S. 940 (1997), a case in which the Supreme Court denied a petition for a writ of certiorari by a Texas death penalty defendant. In Brown, Justice Stevens issued an opinion entitled "respecting the denial of the petition for writ of certiorari," which was joined by Justices Souter, Ginsburg, and Breyer. In this opinion, Stevens stated that there was an "obvious tension" between the Court's decision in Simmons and Texas law which, at that time, prohibited a capital jury from being informed about parole eligibility. Justice Stevens then went on to state that his primary purpose in writing the opinion was not to comment on the merits of Brown's constitutional claims, but instead to reiterate the fact that the denial of a petition for writ of certiorari is neither a decision on the merits of the questions presented nor an appraisal of their importance. Id.
Thus, although some Supreme Court justices may have indicated in this opinion a willingness to address this issue sometime in the future, at this point in time there is no Supreme Court precedent holding that the federal constitution requires that juries in Texas capital murder trials be informed about defendants' parole eligibility in the event of a life sentence. Indeed, since the opinion in Brown v. Texas was issued, the Fifth Circuit has acknowledged the Brown opinion, but once again reiterated its holding that the ruling in Simmons v. South Carolina is not applicable to Texas capital murder trials and that it therefore does not violate a Texas capital murder defendant's constitutional rights to withhold parole eligibility information from the jury. Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir. 1999), cert. denied, 528 U.S. 1145 (2000).
Even if Simmons did apply to the instant case, Lagrone's claim would be Teague-barred. In O'Dell v. Netherland, 521 U.S. 151, 153 (1997), the Supreme Court held that the rule announced in Simmons is a new rule as defined in Teague v. Lane, 489 U.S. 288 (1989). The Supreme Court further held that this new rule does not meet the narrow exceptions set forth in Teague and therefore cannot provide a ground for federal habeas relief. Id., see also Clark v. Johnson, 227 F.3d 273 (5th Cir. 2000). When addressing the parole eligibility issue, the state habeas court concluded that the trial court's refusal to instruct the jury on Lagrone's parole eligibility did not violate Lagrone's federal constitutional rights. (SHTr. 2:372-73). This conclusion is a reasonable application of federal law.
Lagrone also asserts that his trial counsel were ineffective for failing to request an instruction on parole eligibility. The federal constitution guarantees a criminal defendant the effective assistance of counsel, both at trial and on appeal. Strickland v. Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387, 396 (1985). Whether counsel has been ineffective is determined by using the standard enunciated in Strickland. 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. 466 U.S. 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.
Given that the jury was informed during the punishment phase of the trial that Lagrone had previously been convicted of murder, had received a twenty-year sentence, and had been paroled from prison before serving his entire sentence (R. 29:6-10, State's Ex. #68), Lagrone has failed to show how trial counsel were ineffective for failing to request that the jury be informed that, if he received a life sentence, he would again become eligible for parole, and after only fifteen years. Indeed, as the Fifth Circuit has noted, strategic choices made after thorough investigation of the relevant law and facts are virtually unchallengeable. Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992), cert. denied, 508 U.S. 911 (1993). Moreover, because the federal constitution does not require that the jury in Lagrone's trial receive an instruction regarding his parole eligibility, Lagrone cannot establish prejudice under the Strickland standard by his trial counsel's failure to request such an instruction. The state habeas court, in addressing this issue, concluded that, because parole eligibility is not a proper consideration for jury deliberation in a capital murder case and because the trial court would have rightfully denied such an instruction if it had been requested, trial counsel were not ineffective for failing to request such an instruction. This conclusion is not an unreasonable application of the Strickland standard.
Lagrone also summarily asserts that his appellate counsel was ineffective for not raising this issue on direct appeal. As Respondent points out in its response, this claim was not exhausted on the state level because it was raised in neither the direct appeal nor in the state habeas application. See 28 U.S.C. § 2254(b)(1)(A). Nevertheless, this Court may deny this claim on its merits under 28 U.S.C. § 2254(b)(2). As this Court has determined that Lagrone was not entitled to a jury instruction on parole eligibility and trial counsel were not ineffective for not requesting one, appellate counsel likewise was not ineffective for failing to raise a nonmeritorious ground on appeal.
Lagrone further asserts that Texas law is unconstitutional because it does not provide for the sentencing option of life-without-parole. The Fifth Circuit, however, has addressed this issue and held that the Texas capital sentencing scheme is not unconstitutional for failing to have that sentencing option. In Andrade v. McCotter, 805 F.2d 1190, 1192 (5th Cir. 1986), a federal habeas petitioner convicted of capital murder and sentenced to death argued that, because there was no life-without-parole sentencing option, the death penalty is unevenly applied in Texas and therefore his right to be free from cruel and unusual punishment under the Eighth Amendment and his right to due process under the Fourteenth Amendment were violated. After first noting that the Texas capital punishment statute passed constitutional muster in Jurek v. Texas, 438 U.S. 262 (1976), and further stating that the federal constitution does not mandate a particular punishment for a particular crime, the Fifth Circuit in Andrade held that neither death nor life imprisonment with the possibility of parole is a constitutionally disproportionate sentence for capital murder and that a constitutional sentencing scheme therefore does not require the third option of life-without-parole. Id. at 1193.
It appears that this ground for relief was not exhausted at the state level, as it was not raised in either Lagrone's direct appeal or state habeas application. Respondent, however, has not alleged that this claim is unexhausted or procedurally barred. Thus, Lagrone has not been provided notice of this issue or been given an opportunity to address the issue. Rather than raise the issue of exhaustion sua sponte, because this Court has determined that this claim is without merit, the Court will deny the claim as permitted under 28 U.S.C. § 2254(b)(2).
5. The Term "Probability"
Lagrone further asserts that his due process and equal protection rights were violated because the term "probability" was used in the punishment jury instructions. Lagrone contends that his due process rights were violated because the State's burden of proof on the future dangerousness punishment issue was reduced from "beyond a reasonable doubt" to only a "probability." And he contends that he was denied his rights to due process and equal protection of the law because the term "probability," as that term was used in the punishment jury charge, was not defined for the jury. Specifically, Lagrone contends that the term "probability" is, by its nature, unconstitutionally vague and indefinite unless it is given a specific definition.
At the punishment phase of Lagrone's trial, the jury was required to answer the following three questions:
Do you find beyond a reasonable doubt that the conduct of the defendant that caused the deaths of Shakeisha Lloyd, Caroline Lloyd, and Zenobia Anderson was committed deliberately and with the reasonable expectation that the deaths of the deceased or another would result?
Do you find beyond a reasonable doubt that there is a probability that the defendant will commit criminal acts of violence that will constitute a continuing threat to society?
Considering fully the mitigating evidence, if any, do you find from the evidence, beyond a reasonable doubt, that the death penalty is a reasoned moral response to the defendant's background, his character, and to the crime of which he was convicted?
(Tr. 1-A:472-73). When addressing these issues on direct appeal, the Court of Criminal Appeals, citing a number of state law decisions, held that the inclusion of the term "probability" in the future dangerousness special issue does not impermissibly soften the required burden of proof. Lagrone, 942 S.W.2d at 618. The Court of Criminal Appeals further held that the term "probability" is not unconstitutionally vague or indefinite. Id. These conclusions are not contrary to clearly established federal law.
With regard to his claim that the term "probability" impermissibly lowered the State's burden of proof with regard to the future dangerousness special issue from "beyond a reasonable doubt," this Court notes that the jury charge submitted to the jury at the punishment phase of Lagrone's trial included the following instructions regarding the State's burden with regard to the special issues.
The burden of proof in this phase of the trial still rests upon the State and never shifts to the defendant. The prosecution has the burden of proving that a "Yes" answer is appropriate to each question submitted to you in this phase of the trial beyond a reasonable doubt and if it fails to do so as to any question, you must not answer that question "Yes."
The law does not require a defendant to prove that the answer to a question is "No," or produce any evidence at all.
In the event a juror has a reasonable doubt that a "yes" answer is the proper answer to a question after considering all the evidence, and these instructions, that juror should vote to answer such question "No."
The Court will impose the death penalty if the jury's answers to all of the questions are "Yes"; therefore, in order to warrant the imposition of the death penalty, you must believe, beyond a reasonable doubt, that the evidence supports affirmative answers to all the questions.
(Tr. 1-A:470-71). As can be seen from these instructions, the jury was informed in a clear manner that the State had to prove the future dangerousness special issue beyond a reasonable doubt. Additionally, the Fifth Circuit has consistently held that the terms included in the punishment special issue are not unconstitutionally vague and can instead be understood in their common meaning. Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996) (noting the long line of Fifth Circuit cases holding that the terms in the Texas punishment special issues need not be defined in the jury instructions); James v. Collins, 987 F.2d 1116, 1119-20 (5th Cir. 1993) (not necessary to define "deliberately," "probability," "criminal acts of violence," or continuing threat to society"); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993) (not necessary to define "deliberately," "probability," or "society"). Indeed, in Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir. 1984), the Fifth Circuit noted that the term "probability" has a plain meaning such that the discretion left to the jury in answering the future dangerousness issue is no more than the discretion that exists in the jury system itself.
Furthermore, the Supreme Court has held that the future dangerousness special issue that the jury in the instant case was required to answer passes constitutional muster. Jurek v. Texas, 428 U.S. 262 (1976). And, while the Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 322-25 (1989), held that the future dangerousness special issue given to the jury in Lagrone's case standing alone does not allow juries to consider adequately certain mitigating evidence such as mental retardation, the Supreme Court has never determined that the federal constitution requires that terms used in that issue be given specific definitions. Accordingly, it cannot be said that the Court of Criminal Appeals' decision on direct appeal denying these claims for relief is contrary to clearly established federal law.
6. Voir Dire Issues
Lagrone asserts that federal constitutional error occurred during the voir dire process. Specifically, Lagrone argues his due process rights were violated because defense counsel were not permitted to ask five veniremembers about their understanding of the meaning of the term "probability." Too, Lagrone asserts that his due process rights were violated because defense counsel were not allowed to question a juror about his understanding of the meaning of the term "criminal acts of violence." Finally, he contends that his due process rights were violated when defense counsel's challenge for cause to a juror who stated that he would not consider evidence of economic deprivation or good behavior in jail as evidence that mitigated against a defendant receiving a death sentence was denied by the trial court.
As discussed earlier, the terms "probability" and "criminal acts of violence" are contained in the first special issue the jury was required to answer at the punishment phase of the trial.
Applicable Facts
During the voir dire process, defense counsel attempted to ask veniremembers Zande, Hyder, Bracken, Lee, and Foster how they would each define the term "probability." The State objected to any question attempting to elicit a specific definition of the term from these potential jurors, and the State's objections were sustained by the trial court in each of the five instances. (R. 16:1919; 17:2062-63, 2114; 18:2209; 20:2706-07). Defense counsel also attempted to asked veniremember Hyder about what the term "criminal acts of violence" meant to him, but the State's objection to this question was sustained by the trial court. (R. 17:2114-15). On direct appeal, the Court of Criminal Appeals held that the trial court did not err in denying defense counsel the ability to question these jurors about their understanding of the meaning of these terms because it was within the trial court's discretion to limit voir dire regarding these undefined terms used in the jury instructions. Lagrone, 942 S.W.2d at 609, 614-15.
Also during the voir dire process, defense counsel questioned veniremember David Conner about whether he would consider certain matters as evidence that would in his mind mitigate against the imposition of the death penalty. While Connor did indicate that he would consider evidence of mental illness, mental retardation, and a history of good deeds committed by a defendant as mitigating factors in assessing punishment, he stated that he would not consider evidence of strong family ties or a record of good behavior in jail as mitigating evidence and would most likely not consider evidence of childhood economic deprivation as mitigating unless it was of an unusual nature. (R. 8:407-09, 420-21). Defense counsel challenged Conner for cause because inability to consider certain evidence as mitigating evidence constituted a bias against the law. This challenge was denied by the trial court, and defense counsel later used a peremptory strike to remove Conner from the panel. (R. 8:414-15, 428; 23:3310). On direct appeal, the Court of Criminal Appeals held that this claim was without merit because Lagrone had failed to establish that Conner was biased against the law, as the law does not require that jurors attach significance to all potentially mitigating evidence.
Analysis
With regard to Lagrone's claim that his due process rights were violated because defense counsel were not allowed to question certain veniremembers about their understanding of the terms "probability" and "criminal acts of violence," in reviewing claims challenging a trial court's limitations on voir dire, a federal habeas court is limited to constraints on voir dire that rise to the level of a constitutional violation. Hermann v. Johnson, 98 F.3d 171, 174 (5th Cir. 1996). Also, trial judges are allowed wide latitude in determining how voir dire should be conducted. Id. The Fifth Circuit has repeatedly held that a criminal trial is not constitutionally infirm because the state trial judge would not permit defense counsel to question prospective jurors as to their understanding of terms included in the punishment special issues. Soria v. Johnson, 207 F.3d 232, 248-49 (5th Cir.), cert. denied, 530 U.S. 1286 (2000); Esquivel v. McCotter, 777 F.2d 956, 957 (5th Cir. 1985); Milton v. Procunier, 744 F.2d 1091, 1095 (5th Cir. 1984). Thus, the state court's determination that the trial court did not err in denying defense counsel the opportunity to question veniremembers about the meanings of these terms was not a determination that is contrary to clearly established law.
Regarding Lagrone's claim that his federal constitutional rights were violated because the trial court denied defense counsel's challenge for cause of veniremember David Conner, the standard for determining whether a veniremember may be excluded for cause is whether his views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985). In the context of a capital murder case, a sentencer must not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or background. Lockett v. Ohio, 438 U.S. 586 (1978). However, a defendant in a capital case is not entitled to challenge prospective jurors for cause simply because they might view the evidence the defendant offers in mitigation of a death sentence as aggravating evidence instead. Soria, 207 F.3d at 244; see also Johnson v. Texas, 509 U.S. 350 (1993). Following this reasoning, a prospective juror's statement that he does not consider a certain type of evidence as mitigating does not subject him to a challenge for cause because it is not evidence that he will be unable to perform his duties as a juror. Thus, Lagrone has failed to establish that the trial court's denial of his challenge for cause violated his due process rights.
It follows that, even if trial counsel erred in denying defense counsel's challenge for cause, Lagrone cannot establish a federal constitutional violation because he has failed to prove that the jury in his capital murder trial was, in fact, not an impartial one. In Ross v. Oklahoma, 487 U.S. 81 (1988), the Supreme Court addressed a situation similar to the case at hand. Ross was a capital murder defendant who used a peremptory challenge to remove a potential juror from the jury panel for his trial after his challenge for cause was denied by the trial court. On appeal, Ross argued that because the juror was excusable for cause under Witherspoon v. Illinois, 391 U.S. 510 (1968), his right to an impartial jury and to due process of law were violated because the trial court did not excuse him from the panel. Ross, 487 U.S. at 83-84. The Supreme Court held that Ross's federal constitutional claims were without merit because any claim that a jury was not impartial or that due process has been denied because a court erred in not granting a challenge for cause must focus on the jurors who sat on the jury, not jurors who were removed, even if peremptory challenges were used to remove the jurors, because the loss of a peremptory challenge is not a violation of a constitutional right. Id. at 85, 88-89.
Likewise, in the instant case, even assuming for the purpose of argument that veniremember Conner should have been excused for cause, he was struck by defense counsel and did not serve on Lagrone's jury. While Lagrone has summarily stated that, because he was not granted an additional peremptory challenge he was forced to accept an unacceptable juror, he has identified no other juror who sat on the panel who was not impartial and/or was subject to a challenge for cause because he or she was biased against the law in some fashion. Because Lagrone has not argued, much less shown, that any juror who sat on the jury at his trial was not impartial, Lagrone's claim that his due process rights were violated because the trial court did not grant one of his challenges for cause is without merit. The Court of Criminal Appeals' determination that this claim was without merit is not a decision that is contrary to federal law.
7. Psychiatric Examination
Lagrone maintains that his Sixth Amendment right to counsel, his Fifth Amendment right to be free from self-incrimination, his due process rights, and his equal protection rights were violated because he was compelled to submit to a State-sponsored psychiatric examination. Specifically, Lagrone contends that, although he requested and was granted funds to hire a mental health expert to examine him and testify on the issue of future dangerousness, the trial court violated his constitutional rights in ordering that he also be examined by a mental health expert chosen by the State, without his attorney present, for the purposes of rebutting any psychiatric evidence presented by the defense at trial as mitigating evidence.
Applicable Facts
Before trial, defense counsel filed a motion to have an independent expert witness in the areas of psychiatry and psychology appointed to examine Lagrone for mental disorders, which would, counsel contended, constitute relevant mitigating evidence. (Tr. 1:140). The trial court granted this motion and allowed Lagrone to be examined by Richard Schmitt. (Tr. 1-A:405). The State subsequently filed a motion to have Lagrone examined by the state's mental health expert for the purpose of aiding the State in presenting rebuttal evidence should the defense present expert testimony regarding Lagrone's future dangerousness at the penalty phase of the trial. (Tr. 1-A:388). The trial court granted the State's motion and ordered that Richard Coons, the State's mental health expert, be allowed to examine Lagrone. The trial court further ordered that the State notify defense counsel in advance of the time and place of the examination and that, while defense counsel could not be present during the examination, Lagrone had the right to recess the examination and consult with counsel. The trial court further ordered that Coons not relate any of his findings to the State and instead deliver them to the court for an in camera inspection, after which the court would determine whether to release the ultimate conclusions only. Finally, in its order the trial court stated that if the defense called a mental health expert to testify, Coons could witness this testimony, and at that point, Coons' report would be turned over to the defense. (Tr. 1-A:411-12).
The defense did call its mental health expert, Richard Schmitt, at the punishment phase of the trial. (R. 29:179-94). Subsequently, Coons testified for the State. Because Lagrone refused to cooperate with that examination, Coons was unable to give an opinion based upon his personal examination of Lagrone, but responding to hypothetical questions asked by the State and based upon the tests administered by the defense expert and Lagrone's history, gave his opinion that a criminal defendant with a background such as Lagrone's would be a future danger to society. (R. 29:214-24).
Analysis
In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court ruled that a Texas capital murder defendant's Fifth Amendment rights were violated when the State presented testimony at the punishment phase of the trial from a psychiatrist who had examined the defendant and based his testimony that the defendant would be a future danger to society, in part, on the defendant's statements during the interview. Specifically, the Court held that, because the psychiatrist testified for the State on the crucial issue of future dangerousness, his role was that of an agent for the State and therefore Smith's Fifth Amendment rights were violated because he was not given warnings under Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court further held that Smith's Sixth Amendment right to counsel was violated because, even if counsel were aware of the interview of his client by a psychiatrist, he was unaware that it would involve the issue of Smith's potential future dangerousness. Estelle v. Smith, 451 U.S. at 465-67, 471. The Supreme Court also noted, however, the "distinct circumstances" of the case where the trial court had ordered the examination sua sponte and Smith had neither asserted an insanity defense nor offered psychiatric testimony at trial. Id. at 465-66. And, the Court stated that "a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase." Id. at 472.
In Buchanan v. Kentucky, 483 U.S. 402 (1987), the Supreme Court addressed the situation where a capital murder defendant's trial counsel requests a mental health examination of his client and has the defensive strategy of establishing a "mental status" defense to the crime. After the defense presented the testimony of its witness who testified about Buchanan's mental state, the State on cross-examination was allowed to have the witness read excerpts from the report of the psychiatrist who examined Buchanan. The Supreme Court ruled that the admittance of evidence from the psychiatrist's report did not violate either Buchanan's Fifth or Sixth Amendment rights because the defendant himself requested the examination, the excerpts from the examination were used only as rebuttal evidence by the State, and trial counsel was aware of the existence and the scope of the examination of his client by the psychiatrist. Id. at 423-25.
Since the Supreme Court decided Estelle v. Smith, the Fifth Circuit has held that neither a capital murder defendant's Fifth nor Sixth Amendment rights are violated when he is examined by a state psychiatrist and testimony based on this interview is presented at trial where he himself first introduces psychiatric evidence on the issue of future dangerousness or insanity, the State presents psychiatric testimony for rebuttal purposes only, and his trial counsel is given advance notice of the scope of the state's psychiatric examination. Williams v. Lynaugh, 809 F.2d 1063, 1067-69 (5th Cir. 1987); Vardas v. Estelle, 715 F.2d 206, 208-11 (5th Cir. 1983). Following Buchanan, the Fifth Circuit held in Vanderbilt v. Collins, 994 F.2d 189, 1997 (5th Cir. 1993), that a capital murder defendant's Fifth and Sixth Amendment rights were violated when the State presented psychiatric testimony on the issue of future dangerousness because Vanderbilt had not received Miranda warnings before the examination and because his trial counsel was not informed beforehand that the results of the examination could be used at the penalty phase of the trial. The Fifth Circuit held that, because Vanderbilt's counsel had not requested a psychiatric examination for purposes of presenting evidence at punishment, but instead only requested a competency and sanity examination, and Vanderbilt did not use psychiatric testimony at trial but the State instead called the doctors who examined him in order to testify about his future dangerousness, Vanderbilt did not waive either his Fifth or Sixth Amendment rights with regard to the issue of future dangerousness. Id. at 196-7. Thus, when a capital murder defendant indicates an intent to present a mental health expert at the punishment phase of his trial, his Fifth and Sixth Amendment rights are not violated by the trial court allowing a State expert to examine him as well, so long as his counsel is made aware that the results of the examination may be used at the punishment phase of the trial, and the State's expert testifies in rebuttal to the defendant's own mental health evidence.
When ruling on Lagrone's Fifth and Sixth Amendment claims on direct appeal, the Court of Criminal Appeals held that, because Lagrone had demonstrated an intent to present future dangerousness expert testimony, the trial court did not violate Lagrone's Fifth Amendment rights by ordering him to submit to a state-sponsored psychiatric exam as Lagrone was deemed to have executed a limited waiver of his Fifth Amendment rights by constructively testifying through an expert on the issue of future dangerousness. The Court also held that Lagrone's Sixth Amendment rights were not violated because Lagrone did not have a constitutional right to have counsel actually present during a psychological exam. Lagrone, 942 S.W.2d at 610-12. In ruling on Lagrone's due process and equal protection claims, the state habeas court concluded that the claims were without merit because Lagrone had presented nothing more than mere allegations, without supporting evidence or case law, that his due process and equal protection rights were violated (SHTr. 2:56-7).
These conclusions by the state courts are not an unreasonable application of federal law. Under existing precedent from both the Supreme Court and the Fifth Circuit, because Lagrone requested a mental health expert on the issue of future dangerousness who then testified at trial on that issue and because his counsel was informed about the time and the scope of the state-sponsored exam, neither Lagrone's Fifth nor his Sixth Amendment rights were violated because he was questioned by a psychiatrist employed by the State without his attorney present. Moreover, Lagrone has failed to establish that the state habeas court's conclusion that his due process and equal protection rights were not violated was unreasonable as he has presented no evidence to this Court that he has any greater rights under the Due Process or Equal Protection clauses of the federal constitution.
8. Clemency Procedure
Regarding the clemency procedure, Lagrone urges that his execution after review under the current Texas clemency procedures would violate his due process rights and constitute cruel and unusual punishment. Lagrone contends that the Texas clemency process violates the federal constitution because Texas has "arbitrarily and routinely" denied any meaningful and real review of applications for clemency filed by prisoners under death sentences. (Pet. at 60). Lagrone argues that this lack of a meaningful clemency process also violates the International Covenant on Civil and Political Rights (ICCPR).
Lagrone first contends that, although Texas has established procedures for addressing clemency applications, these procedures do not pass constitutional muster under Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). Lagrone argues that the clemency procedures are unconstitutional because only one live clemency hearing has been held in the past thirty years, because the board members vote on cases by facsimile, and because no commutation of a death penalty has been granted where it was sought by the convicted person, rather than the state officials. In Woodard, the opinion of the Court, authored by Chief Justice Rehnquist and joined by three other justices, expressed the view that Ohio's clemency process, whereby a board makes a recommendation but the discretion to grant clemency lies in the hands of the governor, does not violate the due process clause of the federal constitution. This is because an inmate under a death sentence, having no constitutional right to clemency as it is a "unilateral hope," has no due process interest in the clemency proceeding itself. Id. at 280-81. Justice O'Connor authored a concurring opinion, joined by three other justices, stating the view that the due process clause of the U.S. Constitution did require that "minimal" procedural safeguards exist in a state's clemency process, such that judicial intervention might be warranted where an official flipped a coin in order to determine whether to grant clemency or where the State arbitrarily denied a condemned prisoner any access to the clemency process. Id. at 288-89. Nonetheless, these four justices agreed that Ohio's clemency process did not violate Woodard's due process rights. Id. at 290.
Thus, as these two opinions make clear, eight justices of the Supreme Court have expressed the view that a prisoner under a death sentence is, at most, entitled to access to a clemency process where the decision whether to grant clemency is not decided in an arbitrary manner. While Lagrone has pointed to several aspects of the Texas clemency process with which he disagrees, there is no evidence that he will be denied access to the process when the time comes, nor is there evidence that the decision is made in an arbitrary manner. Lagrone has failed to prove that Texas' clemency process violates his due process rights. Indeed, since Woodard, the Fifth Circuit, citing Woodard as authority, has specifically held that the Texas clemency procedures do not violate due process. Faulder v. Texas Board of Pardons and Paroles, 178 F.3d 343, 344-45 (5th Cir.), cert. denied, 527 U.S. 1017 (1999); Moody v. Rodriguez, 164 F.3d 893 (5th Cir. 1999).
The state habeas court concluded that the Texas clemency process meets the minimal procedural safeguards articulated in Justice O'Connor's opinion in Ohio Adult Parole Authority v. Woodard. (SHTr. 2:365-66). Given the language in the concurring opinion of Woodard, as well as Fifth Circuit case law on this issue, this conclusion is not an unreasonable application of federal law.
Lagrone further insists that Texas' clemency process violates the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1992. He contends that the clemency process violates article six of that document, which states that every person sentenced to death shall have the right to seek a pardon or commutation of the sentence and that amnesty, pardon, or commutation is available in all cases. See INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, opened for signature 19 Dec. 1966, 999 U.N.T.S. 171 (1967) (entered into force Mar. 23, 1976); see also 138 Cong. Rec. S4783-84 (daily ed. Apr. 2, 1992) As noted earlier, Texas does have a clemency process during which any person condemned to death has the right to seek a full pardon or a commutation of the sentence. Accordingly, Lagrone has failed to show how this clemency process violates international law. Indeed, as noted by the First, Fifth and Sixth Circuits, when the Senate ratified the ICCPR in 1992, it declared that articles one through twenty-seven in the document were not self-executing, meaning that they could not be in effect as law in the United States without action by Congress incorporating the provisions of the covenant into domestic law, and that Congress has not implemented the legislation necessary to make the covenant binding law on federal courts. Buell v. Mitchell, 274 F.3d 337, 371-72 (6th Cir. 2001); Beazley v. Johnson, 242 F.3d 248, 267 (5th Cir.), cert. denied, __U.S. __, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001); Igartua De La Rosa v. United States, 32 F.3d 8, 10 n. 1 (1st Cir. 1994). Therefore, even if Texas' clemency process did not meet the requirements of the covenant, because the international covenant is not binding on this Court, Lagrone would not be entitled to habeas relief on this claim.
The state habeas court concluded that the ratification of the International Covenant on Civil and Political Rights did not provide Lagrone with any greater rights beyond those already provided by the federal constitution and that Lagrone was not entitled to relief on this claim. (SHTr. 2:367-68). This is not an unreasonable application of federal law.
9. Actual Innocence and Selective Prosecution claims
Lagrone asserts that he is "actually and factually" innocent of capital murder and that therefore he has been denied his due process and equal protection rights. He also argues that he has been denied his due process and equal protection rights because he was selectively prosecuted for capital murder and because the State created the false impression at trial that Lagrone was the only person who entered the house on the night of the shootings.
Respondent contends that this claim was not exhausted on the state level, but in fact Lagrone's actual innocence claim was raised in the state habeas application. (SHTr. 1:11-12).
As support for his claim that he is innocent of capital murder and/or that other people entered the house that evening, Lagrone points to testimony presented at his trial. In particular, he points out that both Dempsey and Charles Lloyd admitted during their testimony that they did not initially identify Lagrone as the man who entered the house and committed the murders. (R. 25:286-87; 26: 528-29). Also, Dempsey Lloyd testified that Lagrone entered the house while three other men remained on the porch, even though a police report evidently indicated that he initially told a police officer that all four men entered the house and began shooting. (R. 25:277, 286, 293). Too, during her testimony, Pamela Lloyd testified that she told the police that she believed that Lagrone was talking to other people because she heard him say, "Man, check the other room." (R 25:70, 105). Lagrone also points to testimony presented by the defense as evidence that supports his claims. The defense presented the testimony of Sylvester Martin, who testified that he overheard a man named Steven McKnight brag to others that he committed the murders when he went to the house with three men names Black Troy, Black Pat, and Catman. Martin, however, never told the police or anyone else what he overheard until an investigator for the defense approached him during trial. (R. 27:632-37). And, the defense presented the testimony of Lagrone's son, Omar Anderson, who testified that Steven McKnight, who was at the time of Lagrone's trial in prison for an unrelated murder, told him that he did the shooting, along with three other men, but that Lagrone was not present. (R. 27:715-718, 728). Anderson acknowledged, however, that even though his father was in jail at the time McKnight allegedly confessed to him, Anderson never told the police, the district attorney's office, or the grand jury about this confession. (R. 27:721-22). Based on this testimony, Lagrone contends that he is innocent of capital murder, that the State selectively prosecuted him for capital murder because the other men at the house were not prosecuted, and that the State created the false impression at trial that he was the only one who entered the house and committed the murders.
A claim of actual innocence based on newly discovered evidence cannot be the basis for habeas relief absent an independent federal constitutional violation. Herrera v. Collins, 506 U.S. 390, 400 (1993); see also Robinson v. Johnson, 151 F.3d 256, 267 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir. 1998). Therefore, in order to succeed on this ground, Lagrone must prove one of his other alleged constitutional violations. With regard to the claim that the State presented a "false impression" at trial that he was the only person who entered the house and shot and killed the victims, Lagrone has failed to prove a constitutional violation because he has failed to prove that the State presented false testimony at trial. Under Napue v. Illinios, 360 U.S. 264, 271 (1959), in order to prevail on a claim that the government knowingly presented false evidence, one must show that the testimony was actually false, that the testimony was material, and that the prosecution knew that the testimony was false. Lagrone cannot establish either that there was false testimony given by witnesses for the State or that the State knew the testimony was false. Instead, Lagrone points to discrepancies in certain witnesses' testimony, as well as testimony presented by defense witnesses, as evidence that a"false impression" was given. In essence, Lagrone disagrees with the State's theory of the case, but in fact all of the evidence that Lagrone asserts supports his false impression claim was, in fact, presented at trial, and its reliability was judged by the jury in reaching its verdict.
Here, Lagrone does not even allege that there is newly discovered evidence that proves that he is innocent of capital murder.
Regarding Lagrone's claim that he has been selectively prosecuted because the other men present at the house were not prosecuted, in order to establish a federal constitutional claim of selective prosecution, Lagrone must show that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. And, in order to establish a discriminatory effect, the defendant must show that similarly situated individuals were not prosecuted. United States v. Armstrong, 517 U.S. 456 (1996). Lagrone cannot make such a showing. At trial, the State presented evidence that the same shotgun fired all of the shell cartridges that were retrieved from the house. (R. 26:483-95). Moreover, Lagrone's girlfriend testified that, at his request, she bought the shotgun used in the murders. (R. 26:449-65). And, most importantly, Charles and Dempsey Lloyd, both of whom were familiar with Lagrone, testified that it was he who came into the house and began shooting people. (R. 25:268-86, 26:524-26). Based upon this evidence, it was the State's theory that only one person killed the three victims and that that person was Lagrone. Thus, Lagrone has failed to show that the State had a discriminatory purpose in prosecuting him because the record before this Court indicates that the State prosecuted him because the totality of the evidence pointed to him as the person who murdered three people. Lagrone has failed to establish that there has been a discriminatory effect. The three other men who, according to Dempsey Lloyd, were present and on the porch of the house, were not similarly situated to Lagrone as the evidence indicates that one person did the shooting. Indeed, other than the testimony of two people that they heard another man brag about committing the murders, there is no evidence that any person other than Lagrone was the one who fired the gun that killed the victims. Accordingly, Lagrone has failed to establish either that the State knowingly presented false evidence or that he was selectively prosecuted, and he has therefore failed to establish a federal constitutional violation.
During the state writ process, the state habeas court, while acknowledging that Texas does recognize a state law claim of actual innocence based on newly discovered evidence, concluded that Lagrone had failed to establish that he was actually innocent of capital murder because he had presented no newly discovered evidence. (SHTr. 2:362-63). With regard to Lagrone's claim that the State created a false impression that only one person entered the house and committed the murders, the state habeas court found that this was simply an argument regarding the credibility of the State's witnesses, Pamela Lloyd, Dempsey Lloyd, and Charles Lloyd, and defense witness Omar Anderson and concluded that Lagrone was not entitled to relief because the jury in reaching its verdict judged the credibility of the witnesses. (SHTr. 2:369-71). As to Lagrone's claim of selective prosecution, after finding that there was no evidence presented at trial that the three men on the porch entered the house, the state habeas court concluded that he had failed to prove that he was selectively prosecuted based upon the non-prosecution of the men on the porch because these men were not similarly situated as the evidence showed that Lagrone was either the sole or the primary actor. (SHTr. 2:334-35). These conclusions are neither unreasonable applications of federal law, nor are they decisions that are contrary to federal law.
10. Ineffective Assistance of Counsel
Lagrone contends that he received ineffective assistance of counsel at the punishment phase of his trial because his trial attorneys presented the testimony of Richard Schmitt in their case-in-chief. Lagrone asserts that presenting the psychologist's testimony constituted ineffective assistance of counsel under the Strickland v. Washington standard because Schmitt gave damaging testimony regarding Lagrone's personality and because the presentation of Schmitt's testimony allowed the State to present its own expert witness, Richard Coons, on rebuttal.
When addressing this claim at the state level, the state habeas court concluded that trial counsel's decision to call Schmitt was a reasonable trial strategy. That court concluded that Schmitt's testimony furthered defense counsel's goal of attempting to establish that Lagrone would not be a future threat if he was given a life sentence and that therefore Lagrone had failed to prove that his trial counsel were ineffective. (SHTr. 2:326).
This conclusion is not an unreasonable application of the Strickland standard. Under the Strickland test, in order to prove that his counsel was ineffective, Lagrone must prove by a preponderance of the evidence both that trial counsel's performance was deficient and that this deficient performance prejudiced his defense. 466 U.S. at 687. Lagrone has established neither prong of the Strickland standard. Schmitt, a clinical psychologist, testified during the punishment phase of the trial that he interviewed Lagrone about his social, education, and health history, and that he gave Lagrone two psychological tests. Based on these tests and interview, Schmitt testified that Lagrone's ideas of right and wrong differ from the rest of society due to the "survival" environment in which he was raised. Schmitt further testified that Lagrone is a bright man with artistic abilities who, in his professional opinion, was capable of treatment, would improve himself in prison, and would not be a future danger to society within the prison environment as it is a system with clearly defined rules and close supervision. (R. 29:179-88). Schmitt testified on both direct and cross-examination that Lagrone did not take responsibility for the murders or the sexual assault of Shakiesha and instead denied involvement. (R. 29:184, 191-92). Schmitt also testified on cross-examination that Lagrone was capable of great violence in certain circumstances and that, if released that day into society and placed into a set of circumstances where he felt threatened, he could be a danger to society (R. 29:193-94).
Thus, while Schmitt acknowledged on cross-examination that Lagrone was capable of violence, he also emphasized on both direct and cross-examination that he believed that Lagrone would better himself in prison and his capacity for violence would be greatly reduced in such a controlled setting. Under Strickland, courts should presume 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. Because Schmitt's testimony was, on balance, evidence that supported the defense's goal of a life rather than a death sentence, defense counsel were using sound trial strategy in calling Schmitt as a witness, and it cannot be said that defense counsels' representation of Lagrone was outside of the range of effective assistance.
Lagrone further claims that trial counsel were ineffective for calling Schmitt as an expert witness because this opened the door for the State to present the rebuttal testimony of psychiatrist Richard Coons. Coons was called as a rebuttal witness by the State at the punishment phase of the trial. He testified that he attempted to interview Lagrone but, other than giving basic information about himself, Lagrone declined to be evaluated by Coons because he had been hired by the prosecution. (R. 29:214, 217). Accordingly, Coons testified that, considering the facts of the case and Lagrone's prior offenses, along with information obtained by Schmitt about Lagrone's history, he believed that a hypothetical person with that history would pose a future danger to society either inside or outside of prison. (R. 29:219-24).
Lagrone has presented no support for his claim that, had the defense not called Schmitt, the State would have been prohibited from calling its own expert to testify about Lagrone's future dangerousness. To the contrary, Texas state case law clearly indicates that the State has always had the ability to call a future dangerousness expert at the punishment phase of a capital trial to testify based on hypothetical questions. Chamberlain v. State, 998 S.W.2d 230, 233-34 (Tex.Crim.App. 1999); Lagrone, 942 S.W.2d at 610-12; Soria v. State, 933 S.W.2d 46 (Tex.Crim.App. 1996). What these cases clarify is that, under Texas law, should a capital murder defendant attempt to present expert testimony that is based on a clinical examination of him that is conducted by the mental health expert, the defendant will be deemed to have waived his Fifth Amendment rights, and the State therefore has the right to have him examined by a mental health expert, as well. Id. But, as the Court of Criminal Appeals noted in Chamberlain, the pertinent question is whether the testimony is based on an examination of the defendant, not whether the defense or the State first presents the evidence. Chamberlain, 998 S.W.2d at 234. In the case at hand, while Lagrone was required to submit to an examination by the State's expert, Richard Coons, Coons testified that Lagrone refused to participate in the interview. Coons also testified that in his opinion a criminal defendant such as Lagrone would be a future danger to society based, not upon an examination of Lagrone, but based upon hypothetical questions posed by the State. Thus, in actuality, defense counsel were allowed to present expert testimony based upon an examination of Lagrone, while the State was limited to testimony based upon hypothetical questions. Lagrone has pointed this Court to no case law indicating that, had Schmitt not testified for the defense at all, the State would have been prevented from calling Coons to the stand to answer hypothetical questions. Therefore, because Schmitt's testimony did not, in fact, open the door to Coons' testimony, Lagrone's defense counsel were not ineffective in that regard.
Moreover, even if defense counsel were considered ineffective in calling Schmitt as a witness, Lagrone has failed to prove that, had Schmitt not been called as a witness, there is a reasonable probability that Lagrone would have received a life sentence. To the contrary, given that the jury had already convicted Lagrone of killing three people, and had heard evidence that he had previously been convicted of murder, sexually assaulted two teenage girls, sold illegal drugs, and shot Dempsey Lloyd twice with a shotgun (R. 29:6-10, 41-6, 50-61, 62-9, 72-89, 90-5), the record of the trial establishes that, even without Coons' testimony, there is no reasonable probability that the jury would have determined that Lagrone would not be a future danger to society. Accordingly, because Lagrone has failed to prove either prong of the Strickland standard, the state habeas court's determination that Lagrone's trial counsel provided reasonably effective assistance of counsel is not an unreasonable application of the Strickland standard.
11. Access to State's files
Lagrone also posits that his due process and equal protection rights under the federal constitution have been violated because he has not been allowed access to the State's entire case file during the state and federal habeas processes. A petitioner is not entitled to federal habeas relief on a claim that he was denied his federal constitutional rights in the state habeas court proceeding because this is an attack on a proceeding collateral to his detention and not the detention itself. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 120 S.Ct. 22 (1999); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995). Specifically, in Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir.), cert. denied, __U.S.__, 122 S.Ct. 477, 157 L.Ed.2d 391 (2001), the Fifth Circuit held that a claim that the state habeas process is constitutionally inadequate because the petitioner was not allowed access to the state's case file is not a basis for federal habeas relief. Therefore, Lagrone's claim that he was denied due process by the state habeas court because he was denied access to the State's file does not entitle him to federal habeas relief.
Also, with regard to Lagrone's complaint that he has been denied access to the State's case file during the federal habeas process, the Supreme Court noted in Kyles v. Whitley, 514 U.S. 419, 437 (1995), that the Court has never held that the federal constitution requires that the State maintain an open file policy. Lagrone has not alleged, much less shown, that any exculpatory, impeachment, or mitigating evidence was withheld from state habeas counsel in violation of Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), or Kyles v. Whitley. Instead, federal habeas counsel states generally that they, as well as state habeas counsel, have been prevented from doing a "complete" job in representing Lagrone. When addressing this claim at the state level, the state habeas court found that the prosecution had discharged its duties under Brady v. Maryland. The state habeas court then concluded that, because there is no general constitutional right to discovery or access to the prosecution's files, this claim was without merit. As Lagrone has asserted no federal constitutional violation, this conclusion is not contrary to federal law.
RECOMMENDATION
The state court adjudication on the merits neither 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, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Accordingly, Petitioner's petition for a writ of habeas corpus should be DENIED.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until July 8, 2002. Failure to file written objections within the specified time shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until July 8, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendations, be and hereby is returned to the docket of the United States District Judge.
SIGNED: June 17, 2002