Kincy v. Dretke , 92 F. App'x 87 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS February 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
No. 03-20656
_______________________
KEVIN CHRISTOPHER KINCY,
Petitioner - Appellant,
versus
DOUGLAS DRETKE, Director,
Texas Department of Criminal Justice -
Institutional Division,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Civil Docket No. H-02-CV-1848
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Kevin Christopher Kincy was convicted of capital murder
and sentenced to death for murdering Jerome Harville during the
course of a robbery. After exhausting state remedies, Kincy filed
a § 2254 petition for a writ of habeas corpus in federal district
court raising eight grounds for relief. The district court granted
the state’s motion for summary judgment on all eight issues,
*
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this opinion should not be published and is not precedent except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.
dismissed Kincy’s petition, and refused to grant a certificate of
appealability (“COA”) on any issue raised.
Kincy now seeks a COA from this court on five issues:
(1) whether he was denied due process and a fair trial because the
trial court upheld a witness’s invocation of the privilege against
self-incrimination; (2) whether he was denied due process because
he has evidence of actual innocence; (3) whether he was denied due
process because of the State’s suppression of impeachment evidence
pertaining to witness John Byrom; (4) whether he was denied due
process because the State presented materially false evidence
through two witnesses; and (5) whether his appellate counsel
provided constitutionally ineffective assistance by failing to
raise as error a witness’s invocation of her privilege against
self-incrimination. We deny a COA on each claim.
BACKGROUND
Terkisha Dawson testified at Kincy’s trial that prior to
the murder, Kincy and his cousin, Charlotte Kincy, spoke of their
plan to rob a man and steal his car and possessions. Dawson
further testified that the plan was for Charlotte, who was
romantically involved with the man and had been accepting money
from him, to seduce the man in his home to prevent him from setting
his alarm. Kincy would then enter the home and, according to
Dawson’s testimony, kill the man.
2
In March 1993, Byron Brown, Kincy’s co-worker, accom-
panied Kincy and Charlotte to a house. Brown testified that upon
entering a bedroom, he observed a man lying on the floor who he
later realized was dead. Brown further testified that he became
frightened and left the house. On March 26, 1993, co-workers of
Jerome Harville became concerned because of his absence from work.
They eventually notified the sheriff’s department and Harville was
discovered in his home, having been fatally shot in the head and
stabbed several times. In addition, Harville’s home had been
ransacked and his Honda Accord, among other items, had been stolen.
The police uncovered prints in the home consistent with a person
wearing gloves.
Dawson further testified that Kincy explained to her how
he surprised Harville in his home and shot him in the head. Dawson
also testified that Charlotte admitted to stabbing Harville several
times. Keenan Mosley, another of Kincy’s cousins, also testified
that Kincy displayed a gun he had stolen from Harville, made a list
of pros and cons concerning his chances of getting caught, and
mentioned having worn gloves. In addition, Mosley testified that
she observed Kincy with a Honda Accord and a large amount of home
appliances and equipment.
Police linked Kincy to the crime after locating both the
murder weapon and Harville’s stolen gun. On April 6, 1993, an FBI
agent spotted Kincy driving Harville’s Honda Accord on
3
Interstate 10 in Texas near the Louisiana border. Police
apprehended Kincy in Louisiana after a lengthy high-speed chase.
Both Kincy and Charlotte were charged with capital
murder. However, the State agreed to reduce Charlotte’s charge to
first degree aggravated robbery in exchange for Charlotte’s guilty
plea and her promise to testify against Kincy at trial. The plea
bargain further stated that, should Charlotte choose not to testify
or fail to testify truthfully, the agreement would be void and the
State would be free to reinstate the capital murder charges. The
plea bargain did not purport to guarantee Charlotte a specific
sentence. However, Charlotte was not called as a witness in the
guilt/innocence phase of Kincy’s trial. Nevertheless, the jury
convicted Kincy of capital murder.
During the punishment phase of the trial, Kincy indicated
that he wished to call Charlotte as a witness. Charlotte was sworn
in and, on the advice of counsel, indicated her desire to invoke
her Fifth Amendment privilege against self-incrimination. Kincy’s
attorney objected, arguing that by pleading guilty Charlotte had
waived her Fifth Amendment privilege. The trial court disagreed
and allowed Charlotte to invoke her privilege. Kincy’s attorney
then stated that, if she had testified, Charlotte would have
verified that she was “the organizer, the planner, the schemer”
behind the crime.
The jury sentenced Kincy to death, and he unsuccessfully
appealed to the Texas Court of Criminal Appeals. Kincy v. State,
4
No. 72,246 (Tex. Crim. App. 1998) (unpublished). Once his
conviction and sentence had been affirmed, Kincy filed a state
habeas application in the trial court. Based on the trial court’s
findings of fact and conclusions of law and its own review, the
Court of Criminal Appeals denied habeas relief. Ex parte Kincy,
No. 50,266-01 (Tex. Crim. App. Nov. 21, 2001) (unpublished). On
August 29, 2002, Kincy filed a petition for writ of habeas corpus
in federal district court.
DISCUSSION
Kincy’s § 2254 habeas petition is subject to the Anti-
terrorism and Effective Death Penalty Act of 1996 (AEDPA). See
Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA mandates that
Kincy obtain a COA before he can appeal the district court’s denial
of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Indeed, “until
a COA has been issued federal courts of appeals lack jurisdiction
to rule on the merits of appeals from habeas petitioners.” Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003).
A COA will issue only when the petitioner has made “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336. A
petitioner achieves the requisite showing by demonstrating that
“reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different
5
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Id.
The Supreme Court has admonished that “a COA ruling is
not the occasion for a ruling on the merit of petitioner’s claim.
. . .” Id. at 331. Rather, this court should engage in an
“overview of the claims in the habeas petition and a general
assessment of their merits.” Id. at 336. “Indeed, a claim can be
debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration,
that petitioner will not prevail.” Id. at 338.
Even if the petitioner succeeds in obtaining a COA, he is
not necessarily entitled to habeas relief. “To prevail on a
petition for writ of habeas corpus, a petitioner must demonstrate
that the state court proceeding ‘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.’” Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th
Cir. 2003) (en banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)).
Before this court may grant habeas relief under the “unreasonable
application” standard, “the state court’s application must be more
than merely incorrect.” Id. at 248. Rather, the more appropriate
inquiry is whether the “state court’s application of clearly
established federal law was objectively unreasonable.” Cotton v.
Cockrell, 343 F.3d 746, 750 (5th Cir. 2003).
6
1. Witness’s Invocation of Privilege Against Self-Incrimination
and Ineffective Assistance of Counsel
Kincy first seeks a COA with respect to the district
court’s failure to grant habeas relief based on the trial court’s
recognition of Charlotte Kincy’s privilege against self-
incrimination. As discussed supra, the State originally charged
Charlotte with capital murder, but agreed to dismiss that charge
and replace it with first degree aggravated robbery in exchange for
Charlotte’s guilty plea and promise to testify against Kincy at
trial. The carrot came with a stick: if Charlotte failed to
perform her end of the bargain in any way (by refusing to testify
or testifying untruthfully), the capital murder charge would be
reinstated. Moreover, the plea bargain did not purport to secure
Charlotte a particular sentence. At the time of Kincy’s trial,
Charlotte had not yet been sentenced.
For whatever reason, the State chose not to call
Charlotte as a witness during Kincy’s trial. When called to the
stand by Kincy during the punishment phase, Charlotte invoked her
Fifth Amendment privilege against self-incrimination and refused to
testify. To no avail, Kincy’s counsel objected that by pleading
guilty Charlotte had waived her Fifth Amendment rights. Charlotte
exercised the privilege.1 Kincy now contends that he was denied
1
Kincy’s counsel then proffered that Charlotte would have
testified that she was the “organizer” of the crime and recruited
Kincy to participate. In his federal habeas petition, Kincy
7
due process and a fair trial by the exclusion of Charlotte’s
testimony.
The Supreme Court has noted that “as a general rule, []
where there can be no further incrimination, there is no basis for
the assertion of the privilege [against self-incrimination].”
Mitchell v. United States, 526 U.S. 314, 326 (1999). This
“principle applies to cases in which the sentence has been fixed
and the judgment of conviction has become final.” Id. When,
however, an individual enters a guilty plea but has not yet been
sentenced, that individual “may have a legitimate fear of adverse
consequences from further testimony” and may invoke the privilege
against self-incrimination. Id.
In addition, courts of appeals that have considered the
issue, including this circuit, have uniformly held that a
codefendant who pleads guilty pursuant to a plea agreement retains
his Fifth Amendment rights prior to being sentenced. See United
argues that Charlotte also would have testified that Kincy was
acting in self-defense when he shot Harville. Kincy further
argues that the State did not call Charlotte as a witness because
it wanted to keep the jury unaware of the possible self-defense
justification. To support this contention, Kincy points to a
1995 letter in which Charlotte asks Kincy to write a letter in
aid of her efforts to obtain parole. Charlotte claims in the
letter that Kincy was acting in self-defense when he shot
Harville.
Kincy also points to a written and signed, but unsworn,
statement by Charlotte that essentially echoes the events
described in her 1995 letter. The statement was prepared by an
investigator working for Kincy’s counsel.
8
States v. Kuku, 129 F.3d 1435, 1437-38 (11th Cir. 1997); United
States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir. 1992); United
States v. Lugg, 892 F.2d 101, 102-3 (D.C. Cir. 1989). The fact
that the codefendant agrees, as part of the plea agreement, to
testify against the accused does not affect his privilege against
self-incrimination. A plea agreement, as opposed to formal
statutory immunity, does not afford the prosecution the right to
force a witness to testify. See Kastigar v. United States, 406
U.S. 441, 448-49 (1972) (formal statutory immunity allows the
prosecution to compel the immunized witness to testify); Lugg, 892
F.2d at 103 (distinguishing plea agreements from formal immunity).
Therefore, a witness may decide not to testify, irrespective of an
agreement to the contrary, and the prosecution may not compel such
testimony.
In this case, Charlotte entered into a plea agreement
whereby she agreed to testify against Kincy. But because she had
not yet been sentenced at the time of Kincy’s trial and the plea
agreement in no way guaranteed her a specific sentence, she
retained her Fifth Amendment rights.2 See Mitchell, 526 U.S. at
326. Neither the state, however, nor Kincy could require Charlotte
2
Kincy’s trial counsel proffered that Charlotte would
testify to being the “organizer” of the crime. If this
representation were true, Charlotte certainly possessed a legiti-
mate fear that any testimony she might give concerning
culpability could conceivably affect her yet-to-be-determined
sentence. See Mitchell, 526 U.S. at 326.
9
to testify as a result of the contractual plea agreement alone.
Reasonable jurists could not debate the district court’s conclusion
that Charlotte retained her Fifth Amendment privilege against self-
incrimination. Further, the state courts’ similar decisions cannot
have been contrary to or an unreasonable application of federal
law. We deny Kincy’s application for COA on this claim.
Tied to this claim, Kincy seeks a COA based on the
ineffective assistance of his appellate counsel for failing to
attack the trial court’s order allowing Charlotte to remain silent.
An ineffective assistance claim is governed by the standard
articulated by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984). To succeed on his claim, Kincy must “prove that
his counsel’s performance was deficient and that the deficiency
prejudiced his defense.” United States v. Kimler, 167 F.3d 889,
893 (5th Cir. 1999). An attorney’s failure to raise a meritless
argument cannot form the basis of an ineffective assistance claim
because (a) such performance is not deficient, and (b) the result
of the proceeding would not have been different had the issue been
raised. Clark v. Collins, 19 F.3d 959, 966 (5th Cir.), cert.
denied, 115 S. Ct. 432 (1994). Reasonable jurists could not
disagree or find wrong the district court’s decision that the state
habeas court’s rejection of this claim was not contrary to or an
unreasonable application of federal law. We deny a COA on this
issue.
10
2. Actual Innocence Evidence
Kincy next seeks a COA based on the district court’s
rejection of his actual innocence claim. Kincy argues that
Charlotte’s 1995 letter and subsequent written statement prove that
he acted in self-defense and is innocent of the crime of capital
murder.3 However, it has long been the rule in this circuit that
claims of actual innocence based on newly discovered evidence alone
are not cognizable under federal habeas corpus.4 Herrera v.
Collins, 954 F.2d 1029, 1034 (5th Cir. 1992), aff’d, 506 U.S. 390
(1993); Bryant v. Scott, 28 F.3d 1411, 1420 n.14 (5th Cir. 1994);
Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir. 1998). Because
reasonable jurists could not disagree or find wrong the conclusion
3
Charlotte alleges that she and Kincy went to Harville’s
home because Harville owed Kincy money. She further alleges that
after telling Kincy he would give him the money, Harville pulled
a gun and the two struggled. Finally, Charlotte states that it
was only after Harville said to Kincy “I’m going to kill you,”
that Kincy shot Harville. Charlotte’s written statements do not,
among other things, explain why Charlotte subsequently stabbed
the victim numerous times.
4
It should also be noted that the Supreme Court has
expressed its reluctance to rely on affidavit testimony in this
regard because of the absence of cross-examination. Herrera, 506
U.S. at 417. In addition, the affidavits in the instant case,
like those presented in Herrera, were issued years after the
crime and resulting trials occurred. Id. Finally, no
explanation has been given why Kincy, who was presumably aware of
his self-defense justification, did not present that theory to
the jury at his trial.
11
that Kincy’s actual innocence claim is not cognizable, we deny his
application for COA on this claim.5
3. Suppression of Impeachment Evidence and Materially False
Evidence
Finally, Kincy seeks a COA based on the alleged
suppression of impeachment evidence pertaining to John Byrom and
the State’s alleged offer of materially false evidence provided
through John Byrom and Keenan Mosley. Kincy relies on affidavits
from both Byrom and Mosley in which they state that they lied, at
the behest of prosecutors, when giving their trial testimony.
Kincy does not dispute that these claims were not presented to the
state courts on direct appeal or state habeas review.
“Federal courts cannot grant habeas relief unless the
applicant has presented the claims to the state court and exhausted
the remedies available in state court.” Cotton, 343 F.3d at 755;
28 U.S.C. § 2254(b) (2000). Kincy’s failure to present these
claims to the state courts renders them unexhausted. Moreover, a
“procedural default. . . occurs when a prisoner fails to exhaust
5
While the district court noted that Kincy’s actual
innocence claim was not cognizable under federal habeas corpus,
the court also believed the claim to be procedurally defaulted
and therefore not deserving of further attention. We do not
address the district court’s alternative ground for denying
Kincy’s petition for writ of habeas corpus because, as discussed
supra, the actual innocence claim, standing alone, is not a
cognizable claim in this circuit. Thus, Kincy’s substantive
actual innocence claim is not an issue that “deserve[s]
encouragement to proceed further.” Miller-El, 537 U.S. 336.
12
available state remedies and the court to which the petitioner
would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
barred.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997)
(internal citations and quotations omitted). Texas law requires
habeas petitioners to present all of their state habeas grounds in
the first petition.6 TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)
(Vernon Supp. 2004). Article 11.071 has been held to be an
adequate state procedural bar to federal review. Barrientes v.
Johnson, 221 F.3d 741, 758-59 (5th Cir. 2000) (noting that article
11.071 codifies the Texas common law abuse of the writ doctrine);
Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir. 1998); Nobles, 127
F.3d at 423. Kincy’s claims are therefore procedurally defaulted.7
A federal court may not consider a petitioner’s defaulted
claims “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 v.
Thompson, 501 U.S. 722, 750 (1991). Kincy attempts to prove cause
6
Narrow exceptions allow the state courts to entertain new
claims on successive habeas petitions, however, Kincy does not
argue that any of the exceptions would be applicable in his case.
7
Indeed, Kincy does not dispute this fact in his brief to
this court.
13
for his default by highlighting the inadequacy of the state
corrective process as a whole.8
Recognizing that this circuit has held that ineffective
assistance of state habeas counsel cannot serve as cause that
excuses procedural default, Rudd v. Johnson, 256 F.3d 317, 319-20
(5th Cir. 2001), Kincy attempts to construe his complaint as one
against the state corrective process as a whole. In particular,
Kincy complains that the Texas process results in the appointment
of incompetent state habeas counsel because of the lack of guiding
standards and that the Texas Court of Criminal Appeals has
“abdicated” its role in the process. However, this court has also
held unequivocally that “infirmities in state habeas proceedings do
not constitute grounds for relief in federal court.” Beazley v.
Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (quoting Trevino v.
Johnson, 168 F.3d 173, 180 (5th Cir. 1999)) (finding petitioner’s
claim of ineffective state process not cognizable). Because
reasonable jurists could not debate the conclusion that Kincy
8
To prove that a fundamental miscarriage of justice has
occurred, a petitioner may make a showing of actual innocence.
Herrera, 506 U.S. at 404. In this regard, an actual innocence
claim serves as “a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim considered
on the merits.” Id. Although Kincy makes a substantive claim of
actual innocence, he does not argue that actual innocence
constitutes a fundamental miscarriage of justice for the purposes
of procedural default. The failure to raise an issue on appeal
constitutes waiver of that argument. United States v.
Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000). In any event, his
only evidence of actual innocence consists of the highly
debatable, unsworn statements of Charlotte. See fn. 3 supra.
14
failed to present cognizable claims of cause and prejudice that
would save his procedurally defaulted claims, we deny a COA on
these evidentiary issues.
CONCLUSION
Because we DENY Kincy’s application for COA on each of
the issues raised, we lack jurisdiction to review the district
court’s denial of habeas relief.
COA DENIED.
15