Lewis v. Cockrell ( 2003 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40985
RICKEY LYNN 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
(5:01-CV-105)
January 22, 2003
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Federal habeas relief was denied Texas state prisoner Rickey
Lynn Lewis concerning a capital murder conviction for which the
death sentence was imposed. The district court certified one of
numerous requested issues for appeal (COA): whether Lewis was
excused, on grounds of futility, from exhausting state remedies on
his ex post facto claim. (The Texas Court of Criminal Appeals had
ruled on a similar issue eight years before Lewis’ direct appeal.)
*Pursuant to 5th Cir. 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opinion should not be published and is not precedent except under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.
In addition, Lewis seeks a COA from this court for each of the
following six claims: (1) the trial court violated his Sixth
Amendment Confrontation Clause right by not allowing cross-
examination of the murder victim’s fiancé concerning her
remarriage; (2) & (3) Texas Code of Criminal Procedure, Art.
37.071, § 3(e) unconstitutionally shifts the burden of proof for
mitigating evidence, as well as permits “open-ended discretion” to
the jury, violative of Furman v. Georgia, 408 U.S. 238 (1972); (4)
& (5) counsel was ineffective for failing both to make a Fourteenth
Amendment Equal Protection objection (where psychological testimony
supporting future dangerousness was based, in part, on Lewis’
gender) and to present mitigating evidence of Lewis’ past head
injury from a gunshot wound; and (6) the trial court erred by
failing to include an “anti-parties” instruction in its charge to
the jury on punishment.
Each COA request is DENIED; the denial of habeas relief is
AFFIRMED.
I.
The following facts are based on those stated in Lewis v.
Texas, No. 71,887, at 3-6 (Tex. Crim. App. 23 June 1999)
(unpublished). In the early morning of 17 September 1990, after
walking into the bathroom, Connie Hilton noticed an armed man walk
past the doorway; immediately screamed to her sleeping fiancé (the
victim); and heard a gunshot.
2
After Hilton attempted to hide in the bathroom, a man aimed a
gun at her, saying, “Shut up bitch, or I’ll shoot you, too”.
Hilton began struggling with that man; was struck in the head at
least twice; finally submitted; and was lifted by two individuals,
who told her to cover her eyes.
Hilton was led outside and later directed into the living
room, where she was sexually assaulted by the man who found her in
the bathroom. That man took Hilton into the kitchen, where he tied
her hands and feet; she heard sounds indicating the house was being
ransacked. Finally, Hilton felt a gun barrel placed between her
legs, and the same man told her: “Quit whimpering, bitch.
Somebody will find you in the morning”.
Hilton testified that, because of the voice, she knew it was
the man who remained with her from when she was discovered in the
bathroom until when she was left in the kitchen.
During a search of the room where the sexual assault occurred,
investigators collected pubic hairs that were consistent with
samples taken from Lewis. Through DNA analysis, samples of Lewis’
blood were matched with traces of blood found both in the house and
in the victim’s car (recovered the next morning) and also with
semen recovered from the house and Hilton.
In 1994, a jury convicted Lewis of capital murder of Hilton's
fiancé in the course of committing, or attempting to commit, the
aggravated sexual assault of Hilton. The jury imposed the death
penalty.
3
In 1996, the Texas Court of Criminal Appeals remanded for a
new punishment hearing, pursuant to Texas Code of Criminal
Procedure, Art. 44.29(c) (if death sentence set aside for error
only in punishment phase, court shall not set aside conviction but
commence new punishment hearing). (That provision became effective
1 September 1991, approximately one year after the murder.) Lewis
v. Texas, No. 71,887 (Tex. Crim. App. 19 June 1996) (unpublished).
In 1997, on remand, Lewis was again sentenced to death. The
Court of Criminal Appeals affirmed the conviction and sentence.
Lewis v. Texas, No. 71,887 (Tex. Crim. App. 23 June 1999)
(unpublished). Lewis did not seek review by the United States
Supreme Court.
In January 1999, Lewis sought habeas relief in the Texas trial
court. Pursuant to its findings and conclusions, the court
recommended relief be denied. Ex Parte Lewis, No. 1-91-32-A (241st
Dist., Smith County, Tex. 28 Feb. 2000) (unpublished). The Court
of Criminal Appeals adopted the findings and conclusions. Ex Parte
Lewis, No. 44,725-01 (Tex. Crim. App. 19 April 2000).
Lewis sought federal habeas relief in April 2001. In a
summary judgment proceeding, the magistrate judge's recommendations
were adopted by the district court and habeas relief was denied
(June 2002).
4
The district court granted a COA on whether Lewis was excused
from exhausting state remedies for his ex post facto claim. A COA
was denied on all other requested issues.
II.
As discussed below, it was not futile for Lewis, in state
court, to raise the ex post facto claim; therefore, he is not
excused from exhausting state remedies. A COA is refused on all
other issues presented, because Lewis has not shown reasonable
jurists would find the district court’s rulings debatable or wrong.
A summary judgment in a habeas proceeding is reviewed de novo.
Woods v. Cockrell, 307 F.3d 353, 356-57 (5th Cir. 2002). Review is
through the heightened standards of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). All state findings of fact are
considered correct, absent clear and convincing evidence otherwise.
Id. at 357; 28 U.S.C. 2254(e)(1).
To appeal the denial of habeas relief, Lewis must first obtain
a COA; he must make “a substantial showing of the denial of a
constitutional right”. 28 U.S.C. § 2253(c)(2). “Where a district
court has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) [and obtain a COA] is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
5
In general, if an issue is certified for appeal, relief is not
granted unless the state court proceeding resulted in: (1) “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”, 28 U.S.C. 2254(d)(1); or
(2) “a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding”, 28 U.S.C. 2254(d)(2). In determining what constitutes
an “unreasonable application” of law under § 2254(d)(1),
“‘unreasonable’ does not mean merely ‘incorrect’: an application
of clearly established Supreme Court precedent must be incorrect
and unreasonable to warrant federal habeas relief”. Foster v.
Johnson, 293 F.3d 766, 776 (5th Cir.)(emphasis in original) (citing
Williams v. Taylor, 529 U.S. 362, 410-12 (2000)), cert. denied sub
nom. Foster v. Epps, 123 S. Ct. 625 (2002).
A.
The issue certified for appeal is the district court's
exhaustion-bar for Lewis' ex post facto claim. That ruling is
reviewed de novo. Fisher v. Texas, 169 F.3d 295, 299 (5th Cir.
1999). Needless to say, because the ex post facto claim was not
raised in state court, there is no state court ruling to which the
above-discussed AEDPA “unreasonable” standard can be applied.
Hence, the exhaustion-bar ruling is reviewed de novo.
6
Lewis claims the Court of Criminal Appeals violated the Ex
Post Facto Clause, U.S. CONST. art. I, § 10, cl.1, when it applied
Texas Code of Criminal Procedure, Art. 44.29(c) to remand his case
for a new hearing on punishment only. Article 44.29(c) provides:
If any court sets aside or invalidates the
sentence of a defendant convicted of an
offense under Section 19.03, Penal Code, and
sentenced to death on the basis of any error
affecting punishment only, the court shall not
set the conviction aside but rather shall
commence a new punishment.
As noted, this provision took effect in September 1991.
Prior to that effective date, a capital case in which
reversible error occurred only in the sentencing phase would have
been remanded for a new trial on both guilt-innocence and
punishment. Lewis asserts that, because the murder at issue
occurred before the 1991 effective date, application of the new
Article 44.29(c) violates the Ex Post Facto Clause.
The district court ruled Lewis did not exhaust his state law
remedies by first presenting this issue to the Texas courts. The
district court held Lewis was, therefore, procedurally barred from
raising it in federal court.
Lewis contends the exhaustion requirement is excused as
futile. He states that, in Grimes v. State, 807 S.W.2d 582 (Tex.
Crim. App. 1991) (en banc), the Court of Criminal Appeals had
already decided the ex post facto issue adversely to his position
urged here. The State counters that, although it is unclear the
7
futility exception exists post-AEDPA, the exception would not apply
here because Lewis must still raise the issue in state court, even
if it would not be sympathetic.
Federal habeas relief will not be granted unless: “the
applicant has exhausted the remedies available in the courts of the
State”, 28 U.S.C. § 2254(b)(1)(A); “there is an absence of
available State corrective process; or circumstances exist that
render such process ineffective to protect the rights of
applicant”, 28 U.S.C. § 2254(b)(1)(B). The principles of finality,
comity, and federalism require a federal habeas petitioner to first
provide the state court a full and fair opportunity to consider
federal law challenges. Duncan v. Walker, 533 U.S. 167, 178-79
(2001). “The exhaustion requirement is satisfied when the
substance of the federal habeas claim has been fairly presented to
the highest state court.” Whitehead v. Johnson, 157 F.3d 384, 387
(5th Cir. 1998).
Our court has questioned whether the futility exception, which
existed pre-AEDPA, exists post-enactment. Nonetheless, courts have
recognized AEDPA’s statutory language implies the exception is
viable and have continued to apply it. Jones v. Jones, 163 F.3d
285, 298 (5th Cir. 1998) (“Our court has not addressed whether the
futility exception ... survived AEDPA’s enactment. But, ... the
language of § 2254(b)(1)(B) is substantially identical to the
language of pre-AEDPA § 2254(b), upon which the ... exception
8
appears to be based.”), cert. denied, 528 U.S. 895 (1999). See
Fisher, 169 F.3d at 303 (applying exception). For purposes of
deciding this appeal, we need not address this question. We will
assume it exists.
The exception is quite limited, applying only “when ... the
highest state court has recently decided the same legal question
adversely to the petitioner”. Id. (emphasis added). But, “the
likelihood of failure of a claim in state court is no excuse for
not presenting it there”. Beazley v. Johnson, 242 F.3d 248, 269
(5th Cir.) (emphasis in original) (citing Engle v. Isaac, 456 U.S.
107, 130 (1982) (“If a defendant perceives a constitutional claim
and believes it may find favor in the federal courts, he may not
bypass the state courts simply because he thinks they will be
unsympathetic to the claim. Even a state court that has previously
rejected a constitutional argument may decide, upon reflection,
that the contention is valid.” (second emphasis added))), cert.
denied sub nom. Beazley v. Cockrell, 122 S. Ct. 329 (2001).
Therefore, to excuse exhaustion, Lewis must show far more than
a likelihood of failure. He must show: the state court had a full
and fair opportunity to decide the same issue in a recent case; and
interests of comity and federalism are served by excusing the
failure to exhaust. Lewis claims Fisher and Youngblood v. Lynaugh,
882 F.2d 956 (5th Cir. 1989), rev'd on other grounds sub nom.,
9
Collins v. Youngblood, 497 U.S. 37 (1990), support his prevailing
under the futility exception here.
Youngblood involved a habeas request on a claimed ex post
facto violation concerning Texas Code of Criminal Procedure, Art.
37.10(b) (requiring reformation of jury verdict where jury assesses
both a punishment authorized by law and a punishment not authorized
by law). Youngblood did not directly present the issue in state
court. In federal court, he claimed the futility exception. Our
court allowed the exception, because, only one week prior to
considering Youngblood’s case, the Court of Criminal Appeals had
decided the same issue in Ex Parte Johnson, 697 S.W. 2d 605 (Tex.
Crim. App. 1985) (en banc). Further, in affirming Youngblood’s
conviction, the Court of Criminal Appeals explicitly relied on Ex
Parte Johnson when it applied Article 37.10(b).
Fisher involved the futility exception for failure, in state
court, to raise a Batson claim that religious-based preemptory
strikes violated the Equal Protection Clause. See Batson v.
Kentucky, 476 U.S. 79 (1986) (Equal Protection Clause forbids
prosecutors from challenging potential jurors on basis of race).
Our court held interests of comity and federalism were best served
by excusing exhaustion, based on the following reasons. First, the
Court of Criminal Appeals decided, en banc, the exact issue in a
separate case one year before Fisher’s appeal to that court.
Second, although Fisher had not raised the issue, the state court
10
addressed it (in a footnote), dismissing it as meritless. Third,
the State failed to raise exhaustion in district court. Finally,
“because ... Fisher’s claim [was] barred by Teague, judicial
efficiency [made] it appropriate to dispose of [his] claim without
requiring additional litigation”. Fisher, 169 F.3d at 303.
In Youngblood and Fisher, the adverse precedent occurred only
one week and one year, respectively, before the appeal involving
the same issue. On the other hand, Grimes, on which Lewis relies,
was decided eight years before Lewis’ state appeal (1999). In the
light of this eight-year interval, the earlier quoted admonition in
Engle is particularly appropriate: “Even a state court that has
previously rejected a constitutional argument may decide, upon
reflection, that the contention is valid”. 456 U.S. at 130(emphasis added).
Moreover, the Court of Criminal Appeals has not decided the
same issue Lewis now raises. In Youngblood, that court had
decided, in a separate case, that the same statute that was
applied to Youngblood did not violate the Ex Post Facto Clause,
which was the same issue for which Youngblood sought habeas relief.
Likewise, in Fisher, that court relied directly on the adverse
precedent in denying relief. Here, however, Lewis relies on
Grimes, which addressed a different statute for a state ex post
facto claim.
11
Article 44.29(c) is at issue here; Grimes concerned Article
44.29(b), applicable to non-capital cases. Grimes held that
article did not violate the Ex Post Facto Clause of the Texas
Constitution (although the Texas court relied on Supreme Court
interpretations of the Ex Post Facto Clause in the United States
Constitution and held Article 44.29(b) violated neither). Lewis
contends Article 44.29(c), applicable only to capital cases,
violates the Ex Post Facto Clause of the United States
Constitution.
The language of Articles 44.29(b) and 44.29(c) varies in part.
Article 44.29(b) provides: “If the court of appeals or the Court
of Criminal Appeals awards a new trial to the defendant only on the
basis of an error made in the punishment stage of the trial, the
cause shall stand as it would have stood in case the new trial had
been granted by the court below, except that the court shall
commence the new trial as if a finding of guilt had been returned
and proceed to the punishment stage of the trial”. Article
44.29(c), at issue in this case, provides: “If any court sets
aside or invalidates the sentence of a defendant convicted of an
offense under Section 19.03, Penal Code, and sentenced to death on
the basis of any error affecting punishment only, the court shall
not set the conviction aside but rather shall commence a new
punishment”.
12
Although the Court of Criminal Appeals may choose to interpret
these statutes similarly, it does not follow that it must, or even
will, do so. Consequently, unlike in Youngblood or Fisher, Lewis
has not shown, for the issue he failed to raise in state court,
that the state court either recently decided it or decided the same
one.
Finally, other considerations do not show federalism and
comity would be served by excusing exhaustion. Fisher involved a
failure of the State to raise exhaustion at the district court.
Here, the State did not fail to do so; in fact, the district court
barred Lewis’ claim because of the failure to exhaust.
Moreover, in Fisher, the claim was Teague-barred; it was
judicially inefficient to send the issue back to state court only
to hear a successive federal habeas petition after exhaustion and
bar the claims then. Here, the Texas Abuse of Writ Doctrine, Texas
Code of Criminal Procedure, Art. 11.071, § 5, likely bars Lewis
from again filing for state habeas relief. (Texas Code of Criminal
Procedure, Article 11.071, § 5 allows a subsequent habeas
application only if: (1) it could not have been raised in the
previous application because the factual or legal basis was
unavailable at the time; or (2) but for a violation of the United
States Constitution, no rational juror would have found Lewis
guilty or would have answered the punishment issues in the State’s
favor. The district court found: the legal claim was available at
13
the time of Lewis’ original application; and he has presented no
facts supporting that, even if there were an ex post facto
violation, no rational juror would have found him guilty and
sentenced him to death.)
Because Lewis has not shown that a state court has decided the
same issue in a recent case and that federalism and comity would be
served by excusing exhaustion, the futility exception (if it even
exists post-AEDPA enactment) does not permit the failure to
exhaust. Lewis’ ex post facto claim is barred.
B.
Lewis seeks a COA for six other issues. As discussed, an
issue will be certified for appeal only if Lewis can make “a
substantial showing of the denial of a constitutional right”, 28
U.S.C. § 2253(c). Restated, reasonable jurists would find
debatable or wrong the district court’s resolution of petitioner’s
constitutional claim. Slack, 529 U.S. at 484.
Moreover, a COA request is viewed against the backdrop, under
AEDPA, for obtaining habeas relief. In that regard, and as
discussed supra, if a COA is granted on a merits issue, a state
court decision on that issue is reviewed only to determine if it
was “contrary to, or involved an unreasonable application of,
clearly established Federal law” or was “based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding”. 28 U.S.C. § 2254(d)(1) & (2).
14
Of the earlier-listed six issues for which he seeks a COA,
Lewis did not brief four. Accordingly, those four are considered
abandoned. E.g., Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th
Cir. 2002).
Both of the remaining COA requests concern the punishment
phase: (1) whether Texas Code of Criminal Procedure, Art. 37.071,
§ 3(e) unconstitutionally shifts to defendant the burden of proof
on mitigation; and (2) whether the trial court violated Lewis’
Sixth Amendment Confrontation Clause right by refusing his request
to cross-examine the victim’s fiancé concerning her remarriage.
1.
For the three special issues in the punishment phase, the
third, conforming to Texas Code of Criminal Procedure, 37.0711, §
3(e), stated:
Taking into consideration all of the evidence,
including the circumstances of the offense,
the defendant’s character and background, and
the personal, moral culpability of the
Defendant, do you find that there is a
sufficient mitigating circumstance or
circumstances to warrant that a sentence of
life imprisonment rather than a death sentence
be imposed?
The jury was further instructed: “The burden of proof with respect
to Special Issues 1 and 2, in this phase of the trial, rests upon
the State, and it never shifts to the Defendant”; and “[w]ith
respect to any and all issues in this trial, the law does not
require the defendant to produce evidence at all and the defendant
15
has no burden of proof as to any issue in the trial of this case”.
(Emphasis added.)
Lewis contends Article 37.0711, § 3(e) is unconstitutional
because it does not require the State to prove, beyond a reasonable
doubt, the absence of mitigating circumstances. On direct appeal,
the Court of Criminal Appeals rejected this contention, noting
Texas courts have already decided this issue. E.g., Barnes v.
State, 876 S.W.2d 316, 330 (Tex. Crim. App.) (“Neither this court
nor the Texas legislature has ever assigned a burden of proof on
the issue of mitigating evidence. The Eighth and Fourteenth
Amendments do not require that a burden be placed on the State.”
(internal citation omitted)), cert. denied, 513 U.S. 861 (1994).
Lewis now relies on the quite recent decision in Ring v.
Arizona, __ U.S. __, 122 S. Ct. 2428 (2002), which overruled, in
part, Walton v. Arizona, 497 U.S. 639 (1990). Ring held a jury
must determine any aggravating factors which enhance a sentence,
including those in capital cases. Lewis implies Ring also
overruled Walton's holding that shifting to defendant the burden
for mitigation is constitutional.
Apprendi v. New Jersey, 530 U.S. 466 (2000), established that
the State’s characterization of a circumstance as an element of the
crime or as a sentencing factor does not determine whether a judge
or jury decides the issue. It follows, according to Lewis, that
16
the State must prove beyond a reasonable doubt the absence of
sufficient mitigating circumstances.
The State responds: Ring overruled Walton only to the extent
Walton allowed a judge, not a jury, to consider aggravating
factors; Walton’s holding that a State may shift the burden of
proof to defendant on mitigation is still good law; and, in any
event, the jury was properly instructed that the State had the
burden to prove all issues.
The district court noted Walton rejected Lewis’ burden
shifting argument. As discussed below, Walton is not overruled on
the issue at hand; as a result, Lewis has not made a substantial
showing that the mitigating evidence special issue denied him his
constitutional rights.
Walton considered the constitutionality of Arizona’s capital
sentencing scheme, which allowed a judge to consider aggravating
and mitigating factors. If one aggravating factor were present,
and the mitigating factors were not sufficient, defendant was
sentenced to death. Walton contended, inter alia: every finding
of fact for sentencing must be determined by a jury; and the
statute violated the Eighth and Fourteenth Amendments by requiring
defendant to prove mitigating factors.
The Supreme Court held: the Constitution did not require a
jury to determine the sentencing factors, 497 U.S. at 647; and
17
shifting the burden to defendant on mitigation did not violate the
Constitution:
So long as a State’s method of allocating the
burdens of proof does not lessen the State’s
burden to prove every element of the offense
charged, or in this case to prove the
existence of aggravating circumstances, a
defendant’s constitutional rights are not
violated by placing on him the burden of
proving mitigating circumstances sufficiently
substantial to call for leniency. ... We
therefore decline to adopt as a constitutional
imperative a rule that would require the court
to consider the mitigating circumstances
claimed by defendant unless the State negated
them by a preponderance of the evidence.
Id. at 650 (emphasis added).
Apprendi established a new constitutional rule: “Other than
the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt”.
Apprendi, 530 U.S. at 490. Apprendi, however, recognized the
distinction between aggravating and mitigating factors:
Finally, the principal dissent ignores the
distinction the Court has often recognized
between facts in aggravation of punishment and
facts in mitigation. If facts found by a jury
support a guilty verdict of murder, the judge
is authorized by that jury verdict to sentence
the defendant to the maximum sentence provided
by the murder statute. If the defendant can
escape the statutory maximum by showing, for
example, that he is a war veteran, then a
judge that finds the fact of veteran status is
neither exposing the defendant to a
deprivation of liberty greater than that
authorized by the verdict according to
statute, nor is the judge imposing upon the
18
defendant a greater stigma than that
accompanying the jury verdict alone. Core
concerns animating the jury and burden-of-
proof requirements are thus absent from such a
scheme.
Id. at 490-91 n.16 (internal citation omitted).
Post-Apprendi, Ring revisited the constitutionality of
Arizona’s capital sentencing scheme; it only overruled Walton on
the issue of whether a judge may find aggravating factors:
[W]e overrule Walton to the extent that it
allows a sentencing judge, sitting without a
jury, to find an aggravating circumstance
necessary for imposition of the death penalty.
Because Arizona’s enumerated aggravating
factors operated as the functional equivalent
of an element of a greater offense, the Sixth
Amendment requires that they be found by the
jury.
Ring, 122 S. Ct. at 2443 (internal quotations and citation omitted;
emphasis added). Indeed, the Court noted the limited issue on
appeal: “Ring’s claim is tightly delineated: He contends only
that the Sixth Amendment required jury findings on the aggravating
circumstances asserted against him.... He makes no Sixth Amendment
claim with respect to mitigating circumstances”. Id. at 2437 n.4
(emphasis added). See also United States v. Bernard, 299 F.3d 467,
484 n.14 (recognizing limited nature of Ring’s holding).
2.
The trial court refused, during the punishment phase, to allow
Lewis’ counsel to cross-examine Hilton, the murder victim’s fiancé,
concerning her remarriage six months after the murder. Claiming
19
violation of the Confrontation Clause, Lewis asserts: cross-
examination on this issue would have ameliorated Hilton's victim-
impact testimony; without the cross-examination, Hilton’s testimony
presented an inaccurate portrayal of the effects the murder had on
her. The State counters: such cross-examination was irrelevant to
Hilton's victim-impact testimony; Lewis had the opportunity to
cross-examine Hilton on other credibility issues concerning the
testimony and did not; and even if cross-examination should have
been allowed, the error was harmless because of the overwhelming
evidence against Lewis.
Hilton’s victim-impact testimony was:
[The victim] was my fiancé, so he was
basically my whole future or a big part of it,
and he was my best friend. And he and I had
lived there for over a year, had made a lot of
plans. The family was close. He just – it
changed my entire life
...
I have physical and emotional [scars].
Physical that I have to look at every day;
emotional that bother me when it gets dark. I
don’t like the dark anymore. It bothers me.
When Lewis’ counsel cross-examined Hilton, he did not address this
testimony.
Later, Lewis requested cross-examination on the issue of
Hilton’s remarriage, contending the remarriage is probative of
showing Hilton was not alone and her fear of the dark was
diminished. The trial court ruled the remarriage irrelevant to the
effect the murder had on Hilton.
20
The Court of Criminal Appeals upheld that ruling. It noted
that Lewis failed to show why revealing the remarriage was
necessary and concluded the trial court did not abuse its broad
discretion in limiting cross-examination.
The district court denied this claim, holding the Court of
Criminal Appeals did not rule contrary to, or unreasonably apply,
federal law when it held no abuse of discretion in limiting
marginally relevant cross-examination. As discussed below, a COA
is denied because no reasonable jurist would find debatable or
wrong the district court’s determination.
The Confrontation Clause guarantees a defendant the right “to
be confronted with the witnesses against him”. U.S. CONST. amend.
VI. The main purpose is to secure the opportunity to cross-
examine. Davis v. Alaska, 415 U.S. 308, 315-16 (1976).
The Supreme Court, however, has observed: “[T]he
Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original).
[T]he Confrontation Clause ... [does not]
prevent[] a trial judge from imposing any
limits on defense counsel’s inquiry into the
potential bias of a prosecution witness. On
the contrary, trial judges retain wide
latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on
such cross-examination based on concerns
about, among other things, harassment,
prejudice, confusion of the issues, the
21
witness’ safety, or interrogation that is
repetitive or only marginally relevant.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (emphasis added).
As stated, Lewis has not made a substantial showing he was
denied his Confrontation Clause right. Hilton’s remarriage was, at
most, marginally relevant to her victim-impact testimony, including
her fear of the dark and suffering because of her physical scars.
Further, the remarriage was only tangentially related to
discrediting her testimony that the victim was a big part of her
future and his death changed her entire life. Finally, Lewis had
the opportunity to cross-examine Hilton on other credibility issues
concerning her victim-impact testimony; he did not do so.
III.
For the foregoing reasons the COA requests are DENIED; the
denial of habeas relief is AFFIRMED.
COA DENIED; AFFIRMED
22