Lewis v. Cockrell ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40475
DAVID LEE LEWIS,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
6:99-CV-484
July 16, 2002
Before DAVIS, JONES and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.*
Lewis, a Texas death sentenced inmate, challenges the district
court’s denial of his petition for habeas corpus. We affirm.
I.
On November 30, 1986, David Lee Lewis broke into the home of
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Myrtle Ruby, a seventy-four year-old widow who was attending church
choir rehearsal. While Lewis was burglarizing her home, she
returned home from rehearsal. They ran into each other in a
hallway. Instead of retreating, Lewis shot Ruby with his sawed-off
.22 rifle and struck her in the head with the rifle. He stole her
car, drove to his uncle’s house and parked nearby while Lewis and
his uncle went on a hunting trip. The police found the car and
arrested Lewis when he returned from the trip. Lewis confessed to
the crime.
Lewis was convicted and sentenced to death in 1987, but in
1993 the Texas Court of Criminal Appeals (TCCA) reversed the
conviction on direct appeal because part of the record had been
lost. He was tried again in 1993 and was once again convicted and
sentenced to death. The TCCA affirmed the conviction and sentence
on direct appeal in 1995. Lewis petitioned for habeas corpus in
state court in 1997, but the TCCA denied relief in 1999. In 1999,
he filed a second petition which the court dismissed as an abuse of
the writ.
In March 2000, Lewis filed a federal habeas petition in
district court. The court granted the State’s motion for summary
judgment and dismissed his petition. Lewis sought a Certificate of
Appealability (COA) for four issues. COA was granted on two
issues; he appeals the denial of COA on the remaining two issues.
II. Application for Certificate of Appealability
Lewis seeks a COA on two claims: (a) his counsel’s cross-
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examination of the State’s psychiatric expert on future
dangerousness was grossly inadequate; (b) the state court violated
his rights to due process by refusing to consider newly discovered
evidence that would have established that he was not a future
danger to society.
A. Ineffective Assistance of Counsel
Because of Lewis’ confession and other strong corroborating
evidence of Lewis’ guilt, counsel concentrated his efforts at trial
on avoiding the death sentence. Lewis pled guilty. Counsel’s
strategy was to obtain a negative answer from the jury on the
qualifying question of whether Lewis would be a future danger to
society. The State called a psychiatric expert, Dr. Quijano, to
testify on this issue. Counsel did not engage an expert witness
but rather arranged for the testimony of six prison guards familiar
with Lewis’ conduct during the previous six years of his
incarceration. He expected that they would testify that he had
been a model prisoner and had not committed any acts of violence
against other prisoners or guards during the previous six years.
Counsel, however, did not confront Dr. Quijano about this expected
testimony and ask him whether such testimony would alter his
opinion on whether Lewis would be a future danger to society.
Lewis argued in his state habeas petition and before the district
court that this failure to confront Dr. Quijano with these facts
amounted to ineffective assistance of counsel.
At the state habeas hearing, Lewis’ former counsel testified
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that he made a deliberate decision not to confront the expert with
these facts. He testified that he expected that if he had revealed
the substance of these witnesses’ testimony, Dr. Quijano would have
explained that testimony or justified his conclusion in a way that
was most favorable to the State “and then I’ve lost my thunder when
the fact witness comes up.”
The state habeas court concluded that the decision not to
confront the State’s expert with the guards’ testimony was sound
trial strategy. The state court concluded that “counsel engaged in
a sound strategy of attempting to build up the defense’s
credibility with the jury so that the evidence presented would so
contradict the State’s evidence of future dangerousness that jurors
would be forced to conclude the State failed in its burden of
proof. In executing this strategy [Lewis’] counsel invoked this
court’s authority to find a mental health expert and pursued this
tactic from voir dire to closing argument.”
We are satisfied that the state court’s findings and
conclusions are reasonable and consistent with Strickland. Lewis
has failed to show a substantial denial of a federal right as to
this claim.
B. “Newly Discovered Evidence”
Following disposition of his state habeas application, Lewis
filed a successive application and raised a single claim that he
was deprived of a fair trial under the due process clause because
“newly discovered evidence” if known at trial, would have compelled
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a rational jury to find that Lewis did not constitute a continuing
threat to society. This “newly discovered evidence” claim is based
on testimony habeas counsel elicited from Dr. Quijano, the State’s
psychiatric expert, at the evidentiary hearing during the first
state habeas proceeding. Counsel asked the witness whether his
opinion given at trial on Lewis’ future dangerousness would be
different if based on Lewis’ good behavior in prison from 1993
until the 1998 habeas hearing. The state habeas court sustained
the State’s objection to this testimony. In a proffer, however,
the witness testified that he would probably not be a danger in
prison and that it is not likely he will commit future criminal
acts. The state court denied this newly discovered evidence claim
as an abuse of the writ.
The court below properly dismissed this claim based on
procedural default.
Contrary to Lewis’ argument, the Texas Court of Criminal
Appeals dismissed this claim on procedural grounds rather than
dismissing it on the merits. In its dismissal, the Texas Court of
Criminal Appeals expressly found that Lewis’ subsequent application
failed to satisfy Texas Code of Criminal Procedure Art. 11.071, §
5(a), the Texas statute prohibiting subsequent habeas applications.
In addition to citing to the relevant statute, the court, in its
order of dismissal, provided “the application is dismissed as an
abuse of the writ.” This is also abundantly clear from the
findings and conclusions of the state trial court which were
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submitted to the Court of Criminal Appeals. The trial court
concluded “the subsequent application for post conviction writ of
habeas corpus does not meet the standard contemplated in Article
11.07(1), § 5, Texas Code of Civil Procedure.”
As we stated in Barrientes v. Johnson, 221 F.3d 741, 759 (5th
Cir. 2000), “Texas abuse of the writ doctrine has, since 1994,
provided an adequate state ground for the purpose of imposing a
procedural bar.” Because the state court’s dismissal of this claim
was on an independent and adequate state law ground the district
court correctly concluded that this claim is procedurally barred
and Lewis’ application for COA on this claim is denied.2
III.
The district court granted a certificate of appeal on two
issues: (a) whether trial counsel was ineffective in arguing an
incorrect burden of proof to the jury; and (b) whether the
inaccurate testimony of the State’s expert witness that there was
an 85 percent chance Lewis would be a future danger to society
violates Lewis’ right to a fair trial.
A) Ineffective Assistance Claim
This claim relates to counsel’s argument to the jury on
Special Issue No. 2: “Is there a probability that the defendant,
2
Characterizing this evidence of past-trial conduct as “newly
discovered” evidence is flawed from the outset: The evidence could
not have been “discovered” before the trial because it did not
exist. It is easy to see why the state habeas court excluded this
evidence as irrelevant.
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David Lee Lewis, would commit criminal acts of violence that would
constitute a continuing threat to society?
In explaining the court’s charge and this interrogatory,
counsel argued to the jury that in order to answer this special
issue in the affirmative it must conclude beyond a reasonable doubt
that the defendant would constitute a continuing threat to society.
Lewis argues that the plain language of the interrogatory only
required the jury to find future dangerousness on a probability
standard rather than a reasonable doubt standard and that this
error undermined counsel’s effectiveness with the jury.
We are satisfied that this claim was never raised in state
court and is procedurally barred. Although Lewis raised an
ineffective assistance of counsel claim on state habeas corpus
review, he did not allege this particular ground. Neither did he
allege this ground in the federal district court. The district
court acknowledged as much when it stated in its memorandum opinion
“Lewis did not raise this as a separate sub-claim.” The court
considered this claim based on facts Lewis mentioned in his reply
brief to the director’s motion for summary judgment.
Thus, this ground for ineffectiveness of counsel has never
been exhausted in state court. This does not require us to remand
this claim to state court because if Lewis were to file a
successive habeas petition in Texas state court his application
would be dismissed as an abuse of the writ under Texas Code of
Criminal Procedure Article 11.07(1)§ 5(a). Lewis alleges no
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exception or cause that would permit a Texas court to consider this
claim.
Additionally, the claim is without merit. Counsel’s argument
that the jury must find proof beyond a reasonable doubt to support
an affirmative answer to Special Issue No. 2 is consistent with the
court’s jury instruction, which specifically defined “reasonable
doubt” and instructed the jury to answer this question in the
negative “[i]n the event you have a reasonable doubt as to whether
the defendant would commit criminal acts of violence that would
constitute a continuing threat to society....” And the burden of
proof counsel argued is consistent with state law. See Lagrone v.
State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997)(en banc)(“Once
again, we must refer appellant to a long line of our prior cases
holding that the inclusion of the term ‘probability’ in the future
dangerousness special issue of capital trials does not
impermissibly soften the required burden of proof in criminal
cases.”)
We, therefore, agree with the district court that counsel was
not deficient in making this argument.
B. Due Process Claim
Lewis argues next that Dr. Quijano’s testimony that Lewis
presented an 85 percent probability of committing future acts of
dangerousness was false and had a substantial and injurious effect
on the outcome of his trial in violation of the due process clause.
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The district court held that this claim was raised by
implication in the state habeas court through his Sixth Amendment
ineffective assistance of counsel claim. This conclusion is
inconsistent with our recent decision in Wilder v. Cockrell, 274
F.3d 255 (5th Cir. 2001), which holds that a substantive Sixth
Amendment claim presented on collateral review was not sufficient
to fairly present a related due process claim for exhaustion
purposes. As we stated in Wilder, “it is not enough that all the
facts necessary to support the federal claim were before the state
courts or that a somewhat similar state law claim was made.” Id. at
259. Furthermore, “where petitioner advances in federal court an
argument based on a legal theory distinct from that relied upon in
the state court, he fails to satisfy the exhaustion requirement.”
Because this claim is unexhausted and would be subject to dismissal
by the Texas habeas court as an abuse of the writ, this claim is
procedurally barred.
On the merits, Lewis cannot establish this claim under this
Court’s case law dealing with claims of false and misleading
testimony by experts. To establish a due process violation based
on the government’s use of false or misleading testimony, the
defendant must show (1) that the witness’s testimony was actually
false, (2) that the testimony was material, and (3) that the
prosecution knew the witness’s testimony was false. Fuller v.
Johnson, 114 F.3d 491, 496 (5th Cir. 1997), citing Giglio v. United
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States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 766 (1972).
Lewis does not meet this standard. First, the testimony at
issue - that Lewis presented an 85 percent probability of
committing future dangerous acts - was elicited by the defense, not
the prosecution. Although the testimony came from the State’s
expert witness, Dr. Quijano, it was elicited by the defense over
protestations from the witness, who cautioned that quantifying
future dangerousness was not accurate. The court below pointed out
that Dr. Quijano testified that expressing his opinion in terms of
a percentage was “a dangerous game,” was “very misleading,” and
that the number was “not precise.” R 18 at 18. Most importantly,
the jury was aware of the misleading nature of this quantification,
and in hearing Dr. Quijano’s warnings regarding the unprecise
nature of his testimony, knew that his quantification was not
intended to mislead.
Lewis also argues that Dr. Quijano’s state habeas evidentiary
hearing testimony softening his quantification of future
dangerousness based on Lewis’ post-sentencing behavior in prison
from 1993 to 1998 raises “new evidence” that Lewis never was a
future danger. Lewis contends that this evidence supports his
position that Dr. Quijano’s testimony to the contrary is false.
But, because Dr. Quijano’s state habeas evidentiary hearing
testimony relates to Lewis’ post-conviction behavior, this
information could not have been known by Dr. Quijano, the state or
anyone else at the time of trial.
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IV.
For reasons stated above, we conclude that Lewis failed to
demonstrate the denial of a constitutional right on the claims
discussed in §§ II A and B above. A certificate of appealability
on those claims is therefore denied.
We also conclude that the district court correctly denied
habeas relief on petitioner’s Strickland and due process claims
discussed above at §§ III A and B. The district court’s judgment
on these claims is affirmed.
AFFIRMED.
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