Opinion
CIVIL ACTION NO. 3:99cv808-G.
May 14, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Toronto Markkey Patterson ("Patterson") is an inmate confined in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) awaiting execution for capital murder for which the death penalty was imposed as punishment. Respondent is the Director of TDCJ-ID.
Statement of the Case: A Dallas County, Texas grand jury indicted Patterson on charges of capital murder for intentionally and knowingly causing the death of Ollie Brown, a child under six years old, by shooting her with a firearm. The offense was committed on June 6, 1995. After pleading not guilty, Petitioner was tried by a jury in the 291st Judicial District Court of Dallas County, Texas. On November 17, 1995, the jury found him guilty of capital murder and three days later answered the special issues in favor of the death penalty. On November 21, 1995, the trial court entered judgment imposing the death penalty. Following automatic appeal, the Texas Court of Criminal Appeals entered its opinion affirming the conviction and sentence on January 13, 1999. Patterson v. State, No. 72,282. On April 5, 1999, Patterson filed a petition for writ of certiorari which the United States Supreme Court denied on October 4, 1999. Patterson v. State, 528 U.S. 826, 120 S.Ct. 77 (1999).
While his direct appeal was pending, Patterson filed an application for writ of habeas corpus pursuant to art. 11.071, Tex. Code Crim. P., raising five points of error. Ex parte Patterson, Appl. No. 38,095-01. The district court entered its findings of fact and conclusions of law on June 24, 1998. The Texas Court of Criminal Appeals denied the application on February 2, 1999, in a per curiam order based on the findings and conclusions of the trial court.
Petitioner filed a second state habeas application on March 30, 2000, raising two additional grounds for relief. The Texas Court of Criminal Appeals dismissed it as an abuse of the writ on May 3, 2000. Ex parte Patterson, No. 38,095-02 (May 3, 2000) (per curiam) (unpublished). The present federal petition was filed on October 4, 2000. Statement of Facts : On June 5, 1996, Kimberly Stiff Brewer and her two daughters, Jennifer Brewer, aged six, and Ollie Brown, aged three, were found murdered in the home of Kimberly's mother, Evelyn Stiff. All three victims were killed by gunshot wounds to the head fired by a .38-caliber revolver. Kimberly and Jennifer both suffered single gunshot wounds to the head. Kimberly was found lying in a relaxed, reclined position in a recliner-type chair in the den with a rug placed over her face. Jennifer was found in her room collapsed in a pool of blood, in front of a television showing cartoons, with a toy tea set spread out in front of her. Ollie was found lying in the far corer of the bottom bunk bed and had visible blood on her hand and leg. She had gunshot wounds to her left hand and head, and a graze wound to her neck. Jennifer's and Ollie's wounds showed some signs of gunpowder stippling, indicating that shots were fired from approximately three feet away. Ollie's wounds were consistent with an adult standing over her and firing downwards while she cowered in the corer of her bed and held her hands over her ears.
Patterson was appointed counsel in this proceeding on April 21, 1999. On December 16, 1999, the district court granted him a stay of execution.
The following facts were taken from the summarized facts contained in the Court of Criminal Appeals opinion. Patterson v. State, No. 72,282. Much more detailed and annotated summaries of the evidence are contained in the direct appellate briefs of Patterson and the State.
A search of the house revealed that no valuables had been taken, nothing had been disturbed and there was no evidence of struggle. In fact, both the front and back doors were locked. Vernon Stiff, Kimberly's brother, had stored his BMW automobile with Dayton chrome and gold wheels rims in the garage of Evelyn Stiff, his mother, while he was serving a prison sentence. When the garage was searched the day after the murders, June 7, 1995, police discovered that three of the Dayton rims and tires were missing. They found a small sledgehammer or mallet, a large sledge hammer and a hand saw in the garage. The internal locking mechanism on the garage door had been sawed through.
Patterson had sold crack cocaine for his cousin, Vernon Stiff, and other dealers when Vernon went to the penitentiary. While he was dealing drugs (earning up to $700 per day), he developed an affection for expensive wheel rims and drove cars with Dayton rims continuously for about a year. At the time of the offense, he was not dealing drugs. He knew that Vernon was storing his BMW at Evelyn Stiff's house.
Patterson's grandmother, Mary Patterson, is Evelyn Stiff's sister.
On the day of the offense, Patterson left the home of his girlfriend, Floria Rider, at about 10:00 or 11:00 a.m., telling his friend George Williams, who also lived at the Rider house, that he was going to physical therapy for a back injury he had suffered in a recent car accident. On his way to therapy, he drove his grandmother's car to Evelyn Stiff's house and visited with Kimberly for fifteen minutes and then proceeded to his therapy session.
Around 2:00 or 3:00 p.m. that afternoon, he returned to Floria's house, looking scared and out-of-breath. He immediately took off his flowered shirt and green shorts. He told George that he had "jacked" some "fool" in Oak Cliff and shot him four or five times with a "thirty-eight", which he said he had thrown in some bushes. He got Williams to help him take three tires with Dayton chrome and gold rims out of the car, telling him he was unable to get the fourth wheel off of the car. The two men rolled the tires in the house and put them in Floria's closet.
The next afternoon, June 7, 1995, the same day on which it was discovered that three of the tires and rims on Vernon's BMW were found to be missing, Patterson, George and Floria went to Aycock Tire and Wheel to try to sell the three Daytons. Petitioner was unable to sell or trade them for what he wanted. They then drove to the home of Andrea Patterson, a friend but unrelated to the Petitioner. Petitioner asked to leave the Dayton rims in the house, but Andrea's mother told them to put them in the garage. Patterson told Andrea not to tell anyone the tires were in her garage.
When Valarie Brewer, Kimberly and Vernon Stiff's sister, saw that Vernon's wheel rims were missing, she told the police she suspected Petitioner because although he rarely went to Evelyn Stiff's residence, she was told by Kimberly that he visited the house twice in one day; that he loved nice wheels; and that his wheels had been stolen shortly before the murders. Patterson was arrested that day at Floria's house. Upon his arrest, the police conducted a search of his car and the house. In the car, they found a gun, later determined not to be the murder weapon. They also recovered photographs and a flowered shirt and a pair of green shorts from the residence. The shirt was later determined to contain tiny spots of blood which were consistent with the spray of blood common in gunshots to the head. However, it was not enough blood to determine the source of the blood.
Patterson's uncle, Jessie Lavert Williams, testified that he had seen Petitioner with a .38-caliber gun and a nine-millimeter gun within the two months prior to the murders. (22 SF 3784.) ("SF" refers to Statement of Facts, preceded by volume number and followed by page number.).
Detective K.W. Wiginton took two statements from Patterson that evening. In his first statement, Patterson told the detective that two individuals named Jamaican Clyde and Jamaican Dee accosted him at the Prince Hall apartments on Sunday (two days before the murders). They asked him to help "distract" Kimberly so they could talk to her. They threatened to harm him or his family if he did not help them and they revealed that they knew the address of Floria Rider's house on Buttercup. The Jamaicans approached Patterson again at Dixon Grocery on the date of the murders and renewed their threats against his family. They also offered him $2500 for his assistance. Jamaican Clyde had on a flowered shirt and green shorts. Petitioner agreed to go to the Stiff residence on Prichard Lane and distract Kimberly. He spoke to her as the Jamaicans came through the front door. One of them told him to take the wheels off of the car, and put them in his own car. Patterson did as he was instructed. They told him to meet them between 9:00 and 9:30 p.m. in front of the 7-Eleven at Bonnieview and Ledbetter. He met Jamaican Clyde at the required time and gave him the wheels, but refused the money, saying "I didn't do it for the money. I did it for my family."
In the meantime, George Williams gave a statement to the police and agreed to show them where to find the stolen wheels. The police subsequently recovered the wheels from Andrea Patterson's house and later testing found Petitioner's, George's and Andrea's fingerprints on them. After Petitioner's first statement had been signed and witnessed, Det. Wiginton learned that George had disclosed that Patterson had not given the wheels to the Jamaicans. Det. Wiginton confronted him with this information. He told Patterson that he thought Jamaican drug dealers did not commit the crime because the person who killed Kimberly was not a stranger, and the only reason a person would kill children was because they could identify the shooter. Patterson began to cry and proceeded to make a second statement.
In the second statement, Petitioner said everything in his first statement was true. However, he indicated that the Jamaicans were watching from outside the Prichard house to make sure he was still there. He admitted shooting Kimberly himself. He then went into the children's room and fired into the room once, then twice, with his eyes closed. He conceded that he did not meet the Jamaicans at the 7-Eleven and concluded the statement by saying he loved his family, he confessed to Detective Wiginton, he did not want anything to happen to his family or friends, that he could be rehabilitated and that this was the toughest situation he had ever been in with the Jamaicans.
Patterson testified at trial and gave a different version of the "Jamaicans-made-me-do-it" story. He claimed that after he and the Jamaicans took the wheels and left the scene, the victims were alive. He claimed he first heard of their deaths when his mother phoned him. He suspected the Jamaicans had something to do with the murders. He also claimed the police coerced him into given the two written statements.
Findings and Conclusions: Section 2254(d) provides the standard of review in Section 2254 cases:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1523 (2000), the Supreme Court explained the Section 2244(d)(1) standard:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Further, in review of a state prisoner's federal habeas petition, "a determination of a factual issue made by a State court shall be presumed to be correct," and a petitioner "shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In addition, where a petitioner has failed to develop the factual basis of a claim in state court, his ability to present additional evidence on the factual inquiry is restricted to the narrow exceptions contained in amended 28 U.S.C. § 2254(e)(2):
(e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
In his first and second claims for relief, Patterson alleges that his conviction and sentence of death violate both the Due Process Clause and the Confrontation Clause because he was not permitted to cross-examine or present evidence that Det. K.W. Wiginton had allegedly extracted a false confession from another capital murder suspect, Michael Martinez, about a month after Patterson's confession by using similar interrogation tactics. Outside the jury's presence the court conducted a hearing on Petitioner's motion to suppress his statements to law enforcement officers (2 SF). The only testimony presented was that of police officers involved in the arrest, Det. Wiginton and Veronica Velasquez. Patterson relied exclusively on his counsel's cross-examination of the State's witnesses and he presented no controverting testimony. At the conclusion of the hearing the judge ruled the Petitioner's statement to Det. Wiginton was admissible. Id. at 2 SF 135.
In the course of Patterson's presentation of evidence in the guilt-innocence phase of trial, and prior to his own testimony before the jury, he attempted to call Mr. Martinez to testify about his interrogation by Det. Wiginton in order to show Wiginton's interrogation tactics and thus cast doubt on the voluntariness of his own statements given on June 7, 1995. The court sustained the prosecution's objection to the admissibility of such testimony, but permitted Petitioner to make a bill of exception. Patterson called both Det. Wiginton and Mr. Martinez outside the jury's presence. 22 SF 3898-3932; 23 SF 3940.
When interrogated by Wiginton on July 6 and 7, 1995, about a series of killings on one night in Dallas County, Texas, Martinez gave three statements, the second two consisting of confessions. (22 SF 3899-3900.) The charges against him were dismissed, as were the charges brought against the man Martinez had implicated as his co-defendant. (22 SF 3908-09.) Another man who was not implicated by Martinez was later charged. ( Id.)
It is unclear whether Martinez was fully exonerated of any involvement in the murders. In his first statement, he stated that he had "swiped a gun" and placed himself at the scene of the security guard's murder. (22 SF 3922, 3903). During his testimony, he was asked if the first statement, in which he stated that he had "swiped a gun" was true and he said it was not. (22 SF 3922). In the next question, he was asked about his involvement with the gun that was used to the kill the security guard. ( Id.) Before he was able to answer, the court stopped the testimony so that Martinez could consult with his defense attorney who was present in the courtroom. ( Id.) After consulting with his client, Martinez's attorney represented to the court that he believed that his client understood his right to remain silent and that anything he said could be used against him, but that he wished to continue his testimony. (22 SF 3923). The testimony continued, although Patterson's attorney turned to a different line of questioning and did not press for an answer to the gun involvement question. (22 SF 3924).
Martinez testified that when he was brought to the police station, he was placed in a small interrogation room which had carpeted walls, a peephole and no windows or mirrors. (22 SF 3918.) In the room were a table and two chairs and he was not handcuffed. (22 SF 3919.) He was in the room for about fifteen minutes before Det. Wiginton came in and started talking to him. (22 SF 3919.) He was given his Miranda warnings when he was interrogated. (22 SF 3919-3120.) Det. Wiginton was friendly towards Martinez, although Martinez was generally fearful because Wiginton was a police officer and he had never been in trouble with the law before. (22 SF 2921.) Martinez testified that after he gave his first statement, in which he explained where he was on the night in question, Wiginton left the room. (22 SF 3920, 3924.) When Wiginton returned, he started yelling at Martinez, telling him that he was a liar, he had committed the murders and there were witnesses who could pinpoint him and prove he was guilty. (22 SF 3924-25.) Martinez testified that Wiginton put him in a corner of the room and scooted his chair so close to Martinez that their toes almost touched. (22 SF 3926.) Wiginton told him that he was "going down" for the murders and that they were going to "put the needle" in his arm. (22 SF 3925, 3927.) Martinez said that Wiginton used a heavy tone with him-a kind of intimidation-and asked him to make another statement because the first one was not true. (22 SF 3925.) During the interrogation, Martinez testified that he had twice asked for an attorney but was denied because he had "waived" his rights. (22 SF 3920.) He did admit that before he signed the statements in front of the civilian witness, Det. Wiginton read him his Miranda warnings, but he was not paying attention because he had too many things going through his mind. (22 SF 3930-31.) He testified that Det. Wiginton wrote out the statements and while he did not ask to do write them himself, he did not know that he had that option. (22 SF 3926.) Martinez also accused Wiginton of making promises and threats to coerce the statements: if he signed them, the charges would be dropped and he would be allowed to go home, but if he did not, his girlfriend would be charged and her children would be taken away from her. (22 SF 3928.) Martinez could not recall if the interrogations had been audio or videotaped. (22 SF 3931.)
Martinez said that he did not know he had a right to remain silent, although he did understand that anything he said could be used against him in a court of law. (22 SF 3919-20, 3922.).
Under questioning by Patterson's attorney, Det. Wiginton gave a different account of Martinez's interrogation. Before taking each statement, Det. Wiginton had Martinez sign a form apprising him of his Miranda rights. (22 SF 3902.) Martinez would dictate the statement and Det. Wiginton would write it out. (22 SF 3901.) He used the same Miranda and voluntary statement forms with Martinez and Patterson. (22 SF 3902.) Det. Wiginton testified that Martinez admitted in the first statement to being present when the security guard was shot. (22 SF 3903.) Between the first and second statement, Det. Wiginton confronted Martinez with new facts and then again between the second and third statements. (22 SF 3904, 3905.) Martinez did not say why he gave the second statement, but as Det. Wiginton gave him more facts, Martinez would admit to more offenses. (22 SF 3905.) Det. Wiginton testified that he probably did say "we know you're lying" between statements. (22 SF 3906.) He did not believe the statements were completely true. (Id.) Det. Wiginton did not recall telling Martinez he was a friend and denied telling him that if he signed the statements, he could go home. (22 SF 3906-07.) He testified that they were both sitting in a corner because of the way the room was set up. (22 SF 3907.) He also testified that it was not unusual for him to take one statement, examine the physical facts he had, then confront the subject with those new facts, and take another statement. (22 SF 3914.)
After the court sustained the State's continued objection to the admissibility of the Martinez interrogation, Patterson testified in his own behalf. In the course of his testimony he testified about the circumstances of his own interrogation by Det. Wiginton. He said that he was also placed without handcuffs in a small interrogation room with carpeted walls and one table and two chairs. (23 SF 4025-26.) He was in the room for about 30 minutes before Wiginton came in. (Id.) Petitioner testified that when Wiginton entered the room, he was friendly towards Patterson and seemed like he was trying to help. (23 SF 4027-4028.) Patterson was scared because this was his first time in an interrogation room and in that kind of trouble. (23 SF 4028-29.) He testified that Det. Wiginton asked questions about the offense and told him that he thought Patterson was a suspect. (23 SF 4028-29.) Det. Wiginton also told him that he noticed Patterson at the house where the murders took place earlier that day as the investigation was continuing. (23 SF 4028.) Patterson admitted to being there. (Id.) During his first statement, Patterson did not ask for an attorney or to make any phone calls. (23 SF 4029-30.) He also conceded that not everything in the first statement is true, specifically his statement that he had met the Jamaicans at the location they instructed and that he had given them the rims. (23 SF 4029.) He attributed this to the fact that he was scared. (Id.)
Patterson also backtracked on this assessment, saying "[f]or a moment he seemed very friendly, friendly like he was trying to help. Then too, he didn't." (23 SF 4028.).
After Patterson gave the first statement and signed it in the witness's presence, Det. Wiginton left the room for about 10-15 minutes. (23 SF 4031.) When Det. Wiginton returned, his attitude had completely changed. He was now angry and shouting at Patterson, telling him to sit in the corer. (23 SF 4031.) Det. Wiginton told him that he was a liar and didn't tell the truth in the first statement — they had the rims, witnesses and the gun. (23 SF 4032.) He also told Patterson how the victims died; Patterson claimed that he never heard where they had been shot or how they had been killed. (23 SF 4034.) Patterson said that he tried to lean his chair back because Det. Wiginton was spitting in his face, and poking him in his head, gesturing to show that Kimberly Brewer had been shot in the head. (23 SF 4032, 4036.) Patterson testified that he asked for a lawyer about 6 or 7 times. (23 SF 4032.) Wiginton generally would not respond, but when he did, he said that he did not want Patterson's family to go bankrupt and lose their house because they would have to get him a lawyer for something he had done, or that no one would talk to him and that he would not be able to get a lawyer if he did not sign the statement. (23 SF 4033.) Patterson testified that he was frightened and twice asked to call his grandmother, but that his request was denied. (23 SF 4035.) He cried the entire time Wiginton was writing out the second statement. (23 SF 4038.) Patterson testified that Wiginton made the decision to write the statement; when Patterson asked, "what about me writing it?", Wiginton responded, "don't you think my handwriting would be better?" (23 SF 4039.) He also testified that he asked for it be recorded, but Wiginton responded that there were no plugs in the room and that paper was good enough. (23 SF 403 9-90). Patterson stated that he knew what was on second statement when he signed it, but only realized later that he admitted in it to killing three people. (23 SF 4046.) Before the civilian witness was brought in to see Patterson sign the statement, Wiginton told him that he was not to say anything to her. (23 SF 4048.)
Later on in his testimony, Patterson said that Wiginton had left and returned three times between the first and second statements, to respond to pages. (23 SF 4043.) Each time he returned, he would talk about the rims, saying the police had them. (Id.) One time, after receiving a page, he told Patterson that they had his fingerprints all over the gun they had found at the scene. (23 SF 4045). Patterson denied this-his prints could not be on it since he did not shoot a gun. (23 SF 4046.).
On cross-examination, Patterson admitted that the first statement he gave was voluntarily and freely given, (23 SF 4052), but that parts of his second statement contained facts which he never related to the detective, but were nonetheless included. The prosecutor then went through the statement line-by-line, asking which sentences were true and which were false and which were statements which he made and which were statements he contended were fabricated by Wiginton (23 SF 4054-66).
Wiginton was recalled by the State to rebut Patterson's allegations of coercion. He denied poking him in his head, slapping him, spitting in his face, and denying Patterson's multiple requests for an attorney and saying that he could not have one. (23 SF 4138-39.) He said that Patterson never asked for an attorney. (23 SF 4139.) He testified that the written statement was Patterson's and that he was allowed to make changes, corrections, and additions to the statement when the civilian witness was in the room. (23 SF 4140). On cross-examination, Wiginton testified that he used the same voice and technique in the second statement as he did the first. (23 SF 4143). He also stated that part of his training is to let the suspect tell you what happened. (23 SF 4144-45.) If a suspect provides information that has not been released to the media, it tends to confirm the veracity of the statement. (23 SF 4145.) He also stated that although he told Patterson they had recovered a gun, he did not tell him they had the murder weapon or the caliber of the gun recovered. (23 SF 4146.)
These claims were raised on direct appeal and rejected. Patterson v. State, No. 72,282 at 1722. The Court of Criminal Appeals noted that a trial judge has broad discretion to impose reasonable limits on cross-examination to prevent harassment, preserve the witness's safety, and avoid prejudice, confusion of the issues, and repetitive and marginally relevant interrogation. Id. at 20 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986). The court stated that "the testimony consisted of a specific instance of alleged improper conduct by Det. Wiginton which tended to erode his character and credibility on the topic of interrogation of capital murder suspects." Id. However, while it may have been probative of Det. Wiginton's bias against Martinez or his co-defendant, it did not bear on any bias or motive against Patterson and thus the court found that such evidence was prohibited by Texas Rule of Evidence 608(b), which tracks the language of Federal Rule of Evidence 608(b) . It also did not serve to demonstrate any lack of capacity or specifically rebut any assertion made by Det. Wiginton in his testimony about the Patterson interrogation. Id. The court then found that reasonable minds could differ on whether the testimony was only marginally relevant and possessed the potential to distract and confuse the jury and concluded that the trial court did not abuse her discretion in excluding the proffered testimony. Id. at 21.
Texas Rule of Evidence 608(b) provides that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." Federal Rule of Evidence 608(b) has the same language but also adds that specific instances of conduct "may, however, in the discretion of the court, if probative on truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."
In light of the trial court's ruling, Petitioner's counsel was not allowed to question Wiginton in the jury's presence about his interrogation of Martinez. However, he was permitted to question him about all of the circumstances under which he obtained the second written statement of Patterson on cross-examination after the State recalled the detective as a rebuttal witness. (23 SF 4140-4147).
The Due Process and Confrontation Clauses guarantee a criminal defendant "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142 (1986) (citing California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984)). An essential component of procedural fairness is the opportunity to be heard. Crane, 476 U.S. at 690, 106 S.Ct. at 2146-47. Therefore, a defendant should be permitted to introduce "competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence." Id. at 690, 106 S.Ct. at 2147. The Constitution, however, gives trial judges "`wide latitude to' exclude evidence that is `repetitive . . ., only marginally relevant' or poses an undue risk of `harassment, prejudice, [or] confusion of the issues.'" Id. at 689-90, 106 S.Ct. at 2146 (citing Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435).
The Confrontation Clause also guarantees the right of an accused "to be confronted with the witnesses against him." Van Arsdall, 475 U.S. at 678, 106 S.Ct. at 1435. The accused can cross-examine the witness to impeach or discredit him through the use of prior criminal convictions, or the revelation of possible biases, prejudices, or ulterior motives. Davis v. Alaska, 415 U.S. 308,316, 94 S.Ct. 1105, 1110 (1974). However, this cross-examination is also subject to the judge's discretion in imposing limits based on concerns over harassment, prejudice, or interrogation that is repetitive or only marginally relevant. Van Arsdall, 475 U.S. at 678, 106 S.Ct. at 1435.
Patterson was able to offer his own testimony and able to cross-examine Wiginton about his interrogation of Patterson. See also n. 9, supra. However, he insists that Martinez's testimony was more than "marginally relevant" and went to the voluntariness and reliability of his own second statement. The State argues that had this testimony been presented to the jury, there was a danger that the jury would assume, from the Martinez incident, the only one presented, that Wiginton's conduct in all interrogations was improper. It is highly questionable as to whether Martinez's testimony would have under any circumstances been admissible for purposes other than to show that Wiginton allegedly engaged in improper coercive tactics in interrogating a suspect on another occasion thus calling into question the voluntariness of Patterson's second written statement. Assuming without deciding that Martinez was wholly innocent of any criminal conduct for which he falsely incriminated himself, but see n. 5, supra, Patterson has cited no case authority-and more specifically as decided by the Supreme Court-holding that such evidence is admissible to undermine the reliability of a defendant's own incriminating statements made at a different time (here a month earlier) and involving a totally unrelated offense. Moreover, Patterson himself admitted that many of the statements made in his second, allegedly coerced, statement were true.
In Crane, supra, the trial court held a pretrial hearing on the defendant's motion to suppress the confession and subsequently denied the motion. Crane, 476 U.S. at 685, 106 S.Ct. at 2144. Crane attempted to present testimony during the trial bearing on the circumstances under which the confession was obtained in order to demonstrate that the circumstances casted doubt on its credibility. Id. at 686, 106 S.Ct. at 2144. The court excluded the evidence on the State's motion in limine, which said the evidence was meant to go to voluntariness, which was a "legal matter" which had already been resolved in the suppression hearing. Id. The Supreme Court reversed, holding that the exclusion deprived Crane of his right to a fair opportunity to present a defense. Id. at 690, 106 S.Ct. at 2147. The circumstances could be substantially relevant to the ultimate issue of guilt or innocence in cases where there was no physical evidence to link the defendant to the crime. Id. at 687-691, 106 S.Ct. at 2145-47. In the present case, Patterson was allowed to present testimony and cross-examine Wiginton about the circumstances of the interrogation.
Under such circumstances it cannot be found that the State court's decision holding that the exclusion of the evidence was proper was not "contrary to" or an "unreasonable application of" the law as decided by the United States Supreme Court. Therefore, Patterson is not entitled to relief on this ground.
Although the Court of Criminal Appeals found no constitutional error in the trial court's ruling which excluded Martinez's testimony and its limitation on the cross-examination of Wiginton to Patterson's interrogation, it also determined that any error was harmless beyond a reasonable doubt under the Supreme Court's holding in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967), as reaffirmed in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993). Patterson v. State, No. 72,282 at 22.
In Patterson's trial the evidence which was excluded would have been relevant only to the issue of the "voluntariness" of his second statement to the detective. Even though the trial court found Patterson's two statements to have been voluntarily and understandingly made, and therefore admissible for the jury's consideration, the jury was nonetheless authorized to disregard his second statement as evidence of guilt if it determined that it as not voluntarily made. See arts. 38.21, 38.22, Tex. Code Crim. P.; see also Patterson v. State, No. 72,282, 1-A Tr.125-126. There is no reasonable possibility that the exclusion of the testimony presented in the bill of exception might have contributed to the conviction. Had the jury determined not to consider Patterson's second statement as evidence of guilt because it found it was involuntary, there was still overwhelming evidence of his guilt.
As noted above, the trial court denied Petitioner's motion to suppress. See 2 SF. It is clear from the evidence presented at the hearing that the trial court's decision overruling the motion fully complied with the requirements of Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964).
"Tr." refers to the Transcript, preceded by volume number and followed by page number.
Even had the jury concluded that his second statement was not voluntary, it was still available to impeach Patterson's trial testimony. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643 (1971).
In the event that this alternative basis for denying relief need be considered, it is clear that Patterson has failed to show that the Court of Criminal Appeals' decision was "contrary to" or an "unreasonable application of" the law.
In his third and fourth claims, Patterson asserts that his conviction and sentence of death violate both the Fourteenth Amendment's Due Process Clause and the Eighth Amendment's prohibition against cruel and unusual punishment because the trial court prohibited him from informing the jury at the sentencing phase that were he sentenced to life imprisonment, he would not be eligible for parole until after having served forty years. He alleges that this prohibition prevented him from rebutting the State's future dangerousness evidence, and prevented him from offering relevant mitigating evidence.
The number of years which a person convicted of capital murder and sentenced to life imprisonment must serve cannot be reduced by his good conduct in prison or by any other circumstances of his confinement. Tex. Code Crim. P. art. 42.18, § 8(b)(2).
Patterson exhausted these claims on direct appeal. Patterson v. State, No. 72,282 at 31-37.
Patterson bases his claims on the Supreme Court's holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). In that case, the Supreme Court held that due process requires a trial court to instruct the jury in a prosecution for capital murder that the defendant would be statutorily ineligible for release on parole if the jury imposed a life sentence. Id. at 169, 114 S.Ct. at 2196.
Relief on these grounds is foreclosed by the law of the this circuit. The same issue was raised by the petitioner in Allridge v. Scott, 41 F.3d 213 (5th Cir. 1994), cert. denied, 514 U.S. 1108, 115 S.Ct. 1959 (1995). In addressing this issue, the Fifth Circuit distinguished the sentencing alternatives present in Simmons, which was South Carolina state law providing for either imposition of a death sentence or a life sentence without parole, from the capital murder sentencing alternatives which existed in Texas which provide from the imposition of a death sentence or a life sentence for which a defendant would be ineligible for parole only for a term of years. Id. at 220-222. The Court concluded by observing that:
We therefore read Simmons to mean that due process requires the state to inform a sentencing jury about a defendant's parole ineligibility when, and only when, (1) the State argues that a defendant represents a future danger to society, and (2) the defendant is legally ineligible for parole. (emphasis in original)Id. at 221. The Fifth Circuit reiterated its decision in Allridge in rejecting the same claim asserted by another Texas petitioner under a death sentence in Clark v. Johnson, 227 F.3d 273, 282 (5th Cir. 2000), cert. denied, ___ U.S. ___ 121 S.Ct. 1129 (2001), citing language in the Supreme Court's decision in Ramdass v. Angelone, 530 U.S. 156, 168, 120 S.Ct. 2113, 2121 (2000), and further finding that the expansion of Simmons sought by the petitioner would be barred by Teague.
The court also found that were it to adopt Allridge's more expansive reading of Simmons, relief in his case would be barred by Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070 (1989). Allridge, 41 F.3d at 221 n. 11.
In his fifth and sixth claims, Patterson asserts he received ineffective assistance of trial and appellate counsel because both failed to invoke the International Covenant on Civil and Political Rights (ICCPR), which prohibits the execution of offenders for crimes committed under the age of eighteen. According to the Petitioner, had trial counsel objected under this treaty to the imposition of the death penalty on a person who committed murder under the age of eighteen, he could have prevented the death penalty from being imposed, as it was in violation of the "supreme law of the land." Pet. at 70. Subsequently, his sentence could have been successfully challenged on appeal, and appellate counsel could have obtained a reversal of the sentence, notwithstanding trial counsel's failure to object. Pet. at 71.
Patterson was 17 years old at the time of the offense. The Fifth Circuit recently summarized the relevant portions of the ICCPR in its opinion in Beazley v. Johnson, 242 F.3d 248, 263-264 (5th Cir. Feb. 9, 2001):
The International Covenant on Civil and Political Rights (ICCPR) provides, inter alia: a "[s]entence of death shall not be imposed for crimes committed by persons below eighteen years of age." International Covenant on Civil and Political Rights, opened for signature 19 Dec. 1996, art. 6, para. 5, S. EXED. DOC. E, 95-2, at 23 (1978), 999 U.N.T.S. 171, 175 [hereinafter ICCPR] (emphasis added). In 1992, the United States Senate ratified the ICCPR with various reservations, understandings, declarations, and a proviso, stating in pertinent part:
[T]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.
. . . .
[T]he United States declares that the provisions of Articles 1 through 27 of the [ICCPR] are not self-executing.
138 CONG. REC. S4783-84 (statement of presiding officer of resolution of ratification) (emphasis added).
Patterson did not raise this claim in his first state habeas application. He did raise it in his second application which was specifically dismissed by the Texas Court of Criminal Appeals for abuse of the writ. Ex parte Patterson, Appl. No. 38,095-02 at cover. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal. Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991).
A federal court cannot consider a petitioner's constitutional claim in a habeas proceeding if the state court rejected that claim on an adequate and independent state ground, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. The state must "clearly and expressly" rely on the adequate and independent state ground. Coleman, 501 U.S. at 735, 111 S.Ct. 2546.
Patterson's second state habeas application was dismissed as an abuse of the writ under Texas Code of Criminal Procedure article 11.071 § 5. See Order of the Texas Court of Criminal Appeals of May 3, 2000, Appl. No. 38,095-02, Petitioner's Appendix C. The Fifth Circuit has previously held that Texas's abuse-of-the-writ doctrine has, since 1994, provided an adequate state ground for the purpose of imposing a procedural bar. See Emery v. Johnson, 139 F.3d 191, 195-96 (5th Cir. 1997).
Petitioner attempts to overcome the procedural bar by arguing that this court's failure to consider his claim would result in a "fundamental miscarriage of justice." In the context of a claim attacking that imposition of a death sentence in a capital case the "miscarriage of justice" exception applies "if the petitioner has shown by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty. . . ." Sawyer v. Whitley, 505 U.S. 333, 349, 112 S.Ct. 2514, 2523 (1992). While it is apparent that the terms of the ICCPR, supra, would prohibit the jury from imposing a death sentence in Patterson's case, due to his age at the time of the offense, in order to sustain his burden in satisfying the "miscarriage of justice" exception, he must show that provisions of the ICCPR applied to his case as a matter of law or at least show that an arguable legal basis exists for its application.
The Supreme Court has not decided whether the provisions of the ICCPR, supra, apply to capital cases prosecuted within the territorial limits of the United States. However, the Fifth Circuit has squarely addressed this issue in Beazley, supra, 242 F.3d at 266-268. First, the court noted that two state supreme courts have concluded the reservation was valid, see Ex parte Pressley, 770 So.2d 143, 148, 2000 WL 356347, at *5-7 and Domingues v. Nevada, 114 Nev. 783, 785, 961 P.2d 1279, 1280 (1998), cert. denied, 528 U.S. 963, 120 S.Ct. 396 (1999). Next, the court cited to its own opinion in which it recognized the validity of the Senate reservations to the ICCPR, White v. Johnson, 79 F.3d 432, 440 n. 1 (5th Cir.) ("even if we did consider the merits of this claim, we would do so under the Senate's reservation that the treaties [among them the ICCPR] only prohibit cruel and unusual punishment.), cert. denied, 519 U.S. 911, 117 S.Ct. 275 (1996). Finally, the court disposed of Beazley's claim that the United Nations Human Rights Committee's interpretation of the ICCPR voided an action by the Senate. Beazley, 242 F.3d at 267. The Fifth Circuit then concluded that the reservation is valid, which-in a word-means that the provisions of the ICCPR, supra, do not apply in a capital case tried within the United States. Therefore, Petitioner cannot demonstrate the necessary predicate for application of the "miscarriage of justice" exception, and merits review of these grounds is procedurally barred.
Even if merits review were permissible, Patterson cannot show "cause", i.e., binding or pervasive case authority decided prior to his trial holding that the ICCPR prohibited a defendant, tried in the United States and under the age of 18 years at the time of the capital offense, from being sentenced to death. Nor can he show any prejudice since the ICCPR does not apply to a capital case prosecuted within the United States. Counsel cannot be faulted for failing to assert a futile objection.
In his last claim, Patterson alleges that his trial counsel was ineffective because he did not investigate and present substantial mitigating evidence at the punishment phase of trial. This claim was not been presented to the state court for review in either direct appeal or habeas corpus and is raised for the first time in the present petition. It is clear that this ground is procedurally barred. This court need not speculate on what result might obtain were he to attempt to present this claim to the Texas state courts in light of the fact that his second art. 11.071 application was dismissed for abuse of the writ. See art. 11.071, § 5(a), Tex. Code Crim. P. However, he argues that this procedural bar should not apply because he can establish both "cause" and "prejudice" for his failure to have presented this claim to the state courts. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565.
Petitioner makes two arguments for "cause." First, he argues that his initial state habeas counsel's alleged ineffectiveness constitutes "cause." Second, he argues that the State appointed him incompetent habeas counsel which constitutes an external impediment to his raising this claim.
Specifically, Patterson claims that his first habeas attorney's representation was ineffective because he failed to raise this issue, thereby establishing "cause" for his failure to have presented this ground the Texas courts. In Irving v. Hargett, 59 F.3d 23, 25 (5th Cir. 1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 929 (1996), the petitioner, challenging a death sentence conviction made a very analogous argument. In Irving the petitioner, in attempting to overcome a procedural bar to a concededly successive petition, see R.9(b) of the RULES GOVERNING § 2254 CASES, argued that his attorney who filed his initial § 2254 petition was ineffective in failing to appeal that portion of the federal district court's judgment which denied relief thereby constituting a basis for avoiding the "abuse of the writ" standard set out by the Supreme Court in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454 (1999). In addressing this claim, the Fifth Circuit stated:
The exceptions noted in McCleskey, 459 U.S. at 493-495, 111 S.Ct. at 1470, are the same as those identified in Coleman, 501 U.S. at 751, 111 S.Ct. at 2565.
In a federal habeas petition, we evaluate a claim that attorney error constitutes cause for such a default as a Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ineffective assistance of counsel claim. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). The Supreme Court, however, has made it clear that a convicted defendant has no Sixth Amendment right to counsel in post-conviction habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). Because a petitioner does not have a constitutional right to counsel in post-conviction habeas proceedings, it follows that a petitioner cannot claim ineffective assistance of counsel in such proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991). Thus, error or misconduct by Irving's counsel cannot establish cause for his failure to appeal the rejection of these claims in his first federal habeas proceedings. See Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir. 1992) ("[B]ecause there is no constitutional right to counsel in federal habeas, under McCleskey, no error by counsel in a habeas proceeding can constitute cause."), cert. denied, 507 U.S. 1007, 113 S.Ct. 1652, 123 L.Ed.2d 272 (1993).Irving, 59 F.3d at 26. Accordingly, since there is no constitutional right to counsel in post-conviction proceedings, any alleged deficiency in the representation of an attorney in a state habeas action cannot satisfy the "cause" exception under Coleman. See also In re Goff, ___ F.3d ___, 2001 WL 422053 (5th Cir. Apr. 25, 2001) (rejecting petitioner's claim of ineffective assistance of habeas counsel in order to obtain authorization to file a successive § 2254 habeas petition).
Patterson also alleges the State's appointment of his initial habeas counsel acted as an external impediment to his raising these claims in his first state habeas application. Art. 11.071, Tex. Code Crim. P., requires the Texas Court of Criminal Appeals "appoint competent counsel. Even if it be assumed arguendo that the attorney appointed did not afford representation consistent with Sixth Amendment requirements, since there is no constitutional right to counsel in a post-conviction proceeding let alone a right to competent counsel, Petitioner cannot rely on this state law provision to establish a "cause" exception to his procedural default.
Although Patterson also argues that he has demonstrated prejudice based upon testimony which his trial attorneys did not present in the punishment phase, it is unnecessary to reach this issue since he cannot satisfy the "cause" prong of the two-part exception. Moreover, he does not claim that his counsel failed to present any mitigation evidence nor that he failed to conduct any investigation at all. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court held that the trial counsel was ineffective for failing to investigate and present "substantial" mitigating evidence. The mitigating evidence described by the Court that was not presented was severe-evidence of severe childhood abuse and mental retardation. Williams, 529 U.S. at 395-96, 120 S.Ct. at 1514. The evidence which was not presented in Williams was qualitatively different from that which his attorney presented. This circumstance does is not present in Patterson's case. Rather his argument addresses the quantity of the evidence which was not presented, rather than the quality of the evidence which his counsel did not present. At bottom, the substantive merits of the claim cannot be considered because Petitioner cannot overcome the procedural bar to merits review.
RECOMMENDATION:
For the foregoing reasons it is recommended that the § 2254 petition for habeas corpus relief be DENIED.
A copy of this recommendation shall be transmitted to counsel for Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.