Green v. Dretke , 82 F. App'x 333 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS October 21, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20245
DOMINIQUE JEROME GREEN,
Petitioner-Appellant,
versus
DOUG DRETKE,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-01-CV-104)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
At issue is whether we will permit an appeal from a Texas
capital murder conviction, for which a death sentence was imposed.
Dominique Jerome Green must make the requisite “substantial showing
of the denial of a constitutional right”, 28 U.S.C. § 2253(c)(2),
in order to be granted a Certificate of Appealability (COA) from
the denial of his 28 U.S.C. § 2254 habeas petition. The COA
request is DENIED.
*
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this opinion should not be published and is not precedent except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.
I.
On the evening of 13 October 1992, Green and three others
undertook a series of armed robberies, culminating in a murder on
the morning of 14 October. Green was charged with capital murder;
a jury found him guilty. Based on the jury’s answers to the three
sentencing special issues for capital murder under Texas law, the
death penalty was imposed.
After the Texas Court of Criminal Appeals remanded to the
trial court for findings regarding the admission of some of Green’s
statements, Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995),
Green’s conviction was affirmed, Green v. State, 934 S.W.2d 92(Tex. Crim. App. 1996). The Supreme Court of the United States
denied certiorari. Green v. Texas, 520 U.S. 1200 (1997).
In August 1997, Green filed for state habeas relief. In
February 2000, the trial court entered findings of fact and
conclusions of law, which were adopted by the Court of Criminal
Appeals.
In January 2001, Green filed for federal habeas relief under
28 U.S.C. § 2254. Through an extremely detailed and comprehensive
98-page opinion, the district court in March 2002 denied both the
petition and, sua sponte, a COA.
Green moved under FED. R. CIV. P. 59(e) to alter or amend the
judgment. By a similarly thorough 31-page order, that motion was
denied in February 2003.
2
The next month, subsequent to filing his notice of appeal,
Green moved the district court to reconsider the COA-denial, citing
the recently decided Miller-El v. Cockrell, 123 S. Ct. 1029 (2003).
A COA was again denied.
II.
Green filed for federal habeas relief after the 1996 effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA);
his application is therefore subject to the constraints found in
AEDPA. Under AEDPA, we cannot consider Green’s appeal unless he
first obtains a COA. 28 U.S.C. § 2253(c)(2); e.g., Miller-El, 123
S. Ct. at 1034.
To obtain that COA, Green must make “a substantial showing of
the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2).
Restated, he must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have
been resolved [by the district court] in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further”. Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotation marks omitted). In other words, “we ... look to the
district court’s application of AEDPA to the petitioner’s
constitutional claims and determine whether the [district] court’s
resolution was debatable among reasonable jurists”. Miniel v.
Cockrell, 339 F.3d 331, 336 (5th Cir. 2003); see also Miller-El,
123 S. Ct. at 1039; Barraza v. Cockrell, 330 F.3d 349, 351 (5th
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Cir.), petition for cert. filed, No. 03-5645 (29 July 2003). At
the COA stage, we do not apply the deferential AEDPA standard of
review, found in 28 U.S.C. § 2254, for the merits of the habeas
petition. See Miller-El, 123 S. Ct. at 1042 (“Before the issuance
of a COA, the Court of Appeals had no jurisdiction to resolve the
merits of petitioner’s constitutional claims.”).
Green seeks a COA for each of the following claims:
ineffective assistance of counsel at the penalty phase;
constitutionally impermissible use of race at the guilt-innocence
and penalty phases; and denial of an opportunity for a “full and
fair hearing” at the state and federal habeas proceedings. None of
these claims makes the “substantial showing of the denial of a
constitutional right”, required by 28 U.S.C. § 2253(c)(2).
A.
In considering a COA request based on claimed ineffective
assistance of counsel (IAC), the well-known two-prong IAC standard
under Strickland v. Washington, 466 U.S. 668 (1984), forms the
backdrop. On its merits, an IAC claim must demonstrate “that
counsel’s performance was both (1) constitutionally deficient; and
(2) resulted in actual prejudice”. Riley v. Cockrell, 339 F.3d
308, 315 (5th Cir. 2003). Only objectively unreasonable
performance will meet the first prong; only a showing of a
reasonable probability of prejudice, sufficient to undermine
confidence in the outcome, will meet the second. Id.4
1.
Green first claims insufficient investigation in developing
mitigating evidence. He asserts that an inadequate investigation
led counsel to fail to present additional mitigating evidence
related to: domestic abuse and neglect; positive elements in
Green’s past; and Green’s mental health. In addition, he claims
the mitigating evidence presented by counsel may have been harmful.
The state habeas court found: witnesses called by Green’s
counsel testified about the conditions of Green’s family life,
including instances of severe abuse by his mother, which counsel
intended to present as part of their mitigation strategy; counsel
undertook investigations that did not lead to testimony, including
interviews with Green’s father (who said he would not be a good
witness for his son) and with a psychiatrist (who was not called as
a witness, in part because he referred to Green as a “sociopath”);
and counsel had reasons for not conducting some interviews,
believing that, because Green was not close to his family,
extensive interviews of his relatives would not be productive; and,
concerning Green’s contention that his brother, Marlin, should have
been called as a witness, Green did not want him called.
In the light of these findings, the state habeas court
concluded: counsel’s performance had not been deficient, having
adopted and carried out a strategy for the mitigation phase; and,
in the alternative, Green had not been prejudiced.
5
The district court recognized that this is not a case in which
counsel failed to present any mitigating evidence, but one in
which, as in Tucker v. Johnson, 242 F.3d 617, 622 (5th Cir.), cert.
denied, 533 U.S. 972 (2001), the “argument is that counsel should
have put on a stronger case in mitigation”. Properly relying on
facts found by the state habeas court, the district court
summarized the testimony elicited by counsel, as well as the
reasons certain interviews were not conducted, and reasons for not
calling individuals who were interviewed. Against this
information, the district court compared the information presented
in affidavits to the state habeas court. Reviewing the facts
before it in the light of AEDPA’s standards, the district court
determined that the state habeas court’s decision of no deficient
performance was neither unreasonable nor contrary to federal law.
In addition, the district court ruled that affidavits of expert
mental health witnesses presented to it for the first time in the
Rule 59(e) motion were procedurally barred because they had not
been presented to the state habeas court.
The district court’s application of AEDPA to this claim is not
debatable among reasonable jurists. Green’s counsel called seven
witnesses, including: three officials testifying on Green’s behalf
who had dealt with him during his juvenile probation; a clinical
psychologist; and his mother. Counsel also cross-examined all
except two of the State’s penalty phase witnesses. Given the
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mitigating evidence introduced to show the difficulties of Green’s
domestic life, the evidence Green now claims counsel should have
introduced is mostly duplicative.
As noted, Green asserts that his brother, Marlin, should have
been called to testify. But, in addition to the fact that Green
instructed his attorneys not to call Marlin, the information that
would have been presented through Marlin’s proposed testimony about
the difficulties of Green’s domestic life was presented through
others. The state habeas court found: one probation officer
testified about Green’s “deplorable living conditions both at home
and in the rented storage unit, [and] his mother’s complete lack of
care”; that a psychiatrist testified that Green “had not been
raised by anyone, that his mother had serious psychiatric
problems”; that Green’s mother testified to an instance of abuse in
which she held Green’s hand “in a fire for so long that it required
hospital care”.
The positive testimony that, according to Green, only Marlin
could have given — about instances in which Green cared for Marlin
— is insufficient to make the requisite showing for COA purposes.
2.
Green complains of the response counsel made to the
potentially damaging testimony by Green’s mother at the penalty
phase. He contends counsel should have presented evidence both
relating to her mental illness and supplementing her testimony.
The state habeas court’s findings of fact include: counsel
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had a strategy for calling the mother; and counsel had interviewed
the mother’s doctor about her condition. That court concluded:
given the purpose of the testimony and its intended effect,
counsel’s performance had not been deficient; and Green had not
been prejudiced by the absence of evidence he feels should have
been presented.
In reviewing these rulings, the district court noted the
irrelevance of additional evidence about the mother’s mental
condition, because: her failings as a parent had been presented by
previous witnesses; and her behavior as a witness aided Green by
permitting the jury to witness the behavior that Green had
experienced. The district court concluded, under the AEDPA
standards, that the state habeas court’s decision was neither
unreasonable nor contrary to federal law.
Reasonable jurists would agree with the district court’s
application of AEDPA. The mother’s difficulties were made obvious
to the jury. When juxtaposed with evidence about her ill-treatment
of Green, they served as evidence a jury could understand without
expert testimony. The additional information Green maintains
should have been presented does not create the requisite showing
for COA purposes.
3.
The third basis on which Green claims IAC is based on his
counsel’s response to a letter placed in evidence. The letter,
8
written post-arrest by Green while in jail awaiting trial, was
introduced by the State. The portion of the letter challenged by
Green stated: “I don’t care if a nigga with me or not ‘I forever
be a trigga happy nigga’”. Green claims counsel should have put
this letter in context by explaining to the jury that the
challenged words were in quotation marks and from a “rap”
recording. Had counsel done so, Green asserts, the jury could have
seen that the statement was not a literal prediction of future
events but instead a colloquialism.
The state habeas court ruled: counsel’s performance had not
been deficient because Green had failed to explain the phrase to
counsel; and Green had not been prejudiced because an explanation
of the phrase and its origins could have been more inflammatory
than the unexplained quote. (The phrase is the title of a “rap”
recording using violent language about an armed and violent
robbery.) Reviewing these findings under AEDPA’s standards, the
district court ruled that they were neither unreasonable nor
contrary to federal law.
The district court’s ruling is not subject to debate among
reasonable jurists. No reasonable jurist could debate the ruling
that counsel was not deficient for failing to identify the source
of the quote.
Nor would a reasonable jurist debate the ruling that Green had
not made a showing of a likelihood that he was prejudiced by the
9
absence of an explanation; such explanation could have involved
providing the jury with a series of violent images with which Green
was apparently familiar. In addition, because the letter was in
evidence, the jury could see the quotation marks around the
challenged language.
Green also contends that effective counsel would have
presented expert testimony to put the challenged phrase in a social
context, a context in which it served as an ironic refutation of
perceptions of violence. Such testimony does not alter our
conclusion that Green fails to make the requisite showing for a COA
on this claim.
4.
The final basis on which Green predicates an IAC claim
meriting a COA is one of cumulative effect. Green contends that,
even if counsel’s errors do not merit a COA when viewed
individually, when viewed as a whole they serve to cast doubt on
counsel’s tactics for the penalty phase.
This claim was not properly identified to us as a COA issue.
While Green does cite cases to support the claim that cumulative
error may be the basis for IAC, he makes no claims about his own
case which would permit anyone to conclude that there were such
cumulative errors here. Rather than point to any facts in his own
case, he simply points to a grant of certiorari in another case as
sufficient basis for our granting a COA. The existence of
10
certiorari is insufficient to cause reasonable jurists to debate
the district court’s holding there was no IAC.
Even assuming the issue has properly been presented, no
reasonable jurist could doubt the district court’s resolution of
this IAC claim. The district court found no deficient performance
and no showing of prejudice. “Meritless claims or claims that are
not prejudicial cannot be cumulated, regardless of the total number
raised.” Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996),
cert. denied, 519 U.S. 1094 (1997).
B.
Green requests a COA on two related claims that his
prosecution and sentence were affected by racial bias that denied
a constitutional right.
1.
Green notes that of the four individuals who participated in
the events on 13-14 October 1992, the three who are black,
including Green, were prosecuted; the one white individual was not.
In addition to Green’s being convicted of capital murder, two
others pleaded guilty to armed robbery.
To show selective prosecution, Green had to satisfy a two-part
test. First, he had to “make out a prima facie showing that he has
been singled out for prosecution but others similarly situated of
a different race were not prosecuted”. United States v. Webster,
162 F.3d 308, 333-34 (5th Cir. 1998), cert. denied, 528 U.S. 82911
(1999). Second, he had to “demonstrate that the discriminatory
selection of him for prosecution is invidious or in bad faith, in
that it rests on such impermissible considerations as race,
religion, or the desire to prevent his exercise of his
constitutional rights”. Id. at 334.
The state habeas court found that there was evidence to
support prosecution of the three black individuals, including
corroboration by co-conspirators, eyewitness identification, and
admissions of guilt. It also found that the white individual
provided consistent testimony denying involvement in the crimes.
Although the state habeas court ruled that the claim had been
presented on direct appeal and, therefore, was not subject to
habeas review, it ruled in the alternative that all four
individuals were treated in proportion to their culpability and the
strength of the evidence against them.
The district court, reviewing the evidence before the state
habeas court, ruled that Green had not demonstrated that the white
individual was similarly situated to him. Against Green’s claims
based on the circumstances of the incident, the district court
considered the prosecutor’s affidavit explaining the reasons
underlying the choice of who would be prosecuted. Finding that
Green had failed to make a prima facie case, the district court
determined, under AEDPA’s standards, that the state habeas court’s
decision was neither unreasonable nor contrary to federal law.
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Like the district court, we do not reach the second prong of
the selective prosecution test because, for COA purposes, Green has
not sufficiently shown, pursuant to the first prong, that
reasonable jurists would debate the district court’s ruling that
similarly situated persons of a different race were not prosecuted.
Green has not shown that the state findings were clearly erroneous.
Instead, he has noted that the white individual was occasionally
referred to as a party or co-conspirator by the prosecution and
admitted to receiving stolen property. Green relies on this in an
attempt to create an inference that the white individual was
similarly situated to the others involved. This is in contrast to
the deference to prosecutorial discretion generally, and the
clearly-expressed and well-supported affidavit by the prosecutor
specifically.
2.
In the sentencing phase, as earlier described, the prosecution
introduced the letter written by Green while in jail awaiting
trial. In closing argument, the prosecutor asked the jury to
consider that Green had described himself as a “trigger happy
nigger” (instead of “nigga”, as used in the letter; emphasis
added). Green seeks a COA on whether this claimed use of race by
the prosecution denied him equal protection of the law.
a.
13
In his federal application, Green did not clearly delineate
two claims (sub-issues) of inflammatory speech: the introduction
of the letter with the phrase “trigga happy nigga”; and the closing
argument in which the prosecutor said that Green had described
himself as a “trigger happy nigger”. It is clear that the district
court only understood Green to be referring to one event, because
the district court only considered the language used in the letter.
It was only in Green’s reply to the response to his Rule 59(e)
motion that Green delineated two sub-issues for an equal protection
claim. Needless to say, that is too late; we will not consider
this changed-language sub-issue. See Lookingbill v. Cockrell, 293
F.3d 256, 264 (5th Cir. 2002), cert. denied, 537 U.S. 1116 (2003).
b.
The district court, recognizing that the equal protection
claim had been mingled with the IAC claim, did address the equal
protection implications of the letter. For Green’s request for a
COA on this ground, he did not exhaust this claim in state court.
Neither his direct appeal nor his state habeas proceeding
challenged, on equal protection grounds, the prosecution’s
introduction of the letter (or use of the word “nigger” instead of
“nigga”); on direct appeal, he only challenged the prejudicial
value of the letter as an evidentiary concern. See Green v. State,
934 S.W.2d 92, 103-05 (Tex. Crim. App. 1996). Because Green did
not exhaust his claims in state court, he cannot now make a
14
showing, for COA purposes, of such a deprivation in his federal
application. 28 U.S.C. § 2254(b)(1); Anderson v. Johnson, 338 F.3d
382, 386 (5th Cir. 2003) (noting that exhaustion requirement “is
not satisfied if the petitioner presents new legal theories or
factual claims in his federal habeas petition”).
c.
In the alternative, Green does not make the requisite showing
for a COA on either of the two sub-issues concerning the challenged
words (in the letter and by the prosecutor) and equal protection.
C.
Green makes two claims about the district court’s resolution
of procedural issues before it. Each claim is related to his
maintaining he did not receive a “full and fair hearing” in state
court.
1.
First, Green claims the district court was incorrect in
applying AEDPA’s presumption that findings of fact from the state
proceeding are correct. See 28 U.S.C. § 2254(e)(1). Green bases
this on the fact that his state habeas proceeding was a “paper
hearing” before a judge other than the one who presided at trial.
As explained supra, our review is to determine whether jurists
of reason would debate the district court’s application of AEDPA.
Such jurists could not debate that the rule urged by Green is
precluded in this circuit. Valdez v. Cockrell, 274 F.3d 941, 948
15
(5th Cir. 2001) (“[A] full and fair hearing is not a prerequisite
to the application of AEDPA’s deferential framework”.), cert.
denied, 537 U.S. 883 (2002).
In any event, the hearing Green received for his state habeas
petition was sufficient. In August 1997, Green filed that
petition, with 15 supporting documents purporting to be affidavits.
That the state court could not consider four of them (because they
were not signed) is not a flaw in the hearing accorded Green.
Rather, it demonstrates that the state court examined all the
documents before it. (In addition, the court considered three
affidavits filed on behalf of the State, further reinforcing the
thoroughness of the hearing.) In November 1999, Green filed
proposed findings of fact and conclusions of law with the state
court. Those proposed findings and conclusions were not adopted by
the state habeas court. Green fails to make the requisite showing
for a COA concerning the adequacy of the state habeas proceeding.
2.
Second, Green contends that the district court improperly
denied his discovery requests. Hill v. Johnson, 210 F.3d 481 (5th
Cir. 2000), cert. denied, 532 U.S. 1039 (2001), reviewed a COA
request on such a ground under a standard of whether the individual
seeking the COA had established “that the question whether the
district court abused its discretion in denying this request is
debatable among jurists of reason”. Id. at 487. Whether to permit
16
discovery is committed to such discretion by Rule 6(a) of the Rules
Governing § 2254 Cases.
Because discovery must “relate solely to a specifically
alleged factual dispute, not to a general allegation”, Clark v.
Johnson, 202 F.3d 760, 767 (5th Cir.), cert. denied, 531 U.S. 831(2000), reasonable jurists could not debate that the district court
acted within its discretion in refusing to grant discovery.
Green’s discovery requests did not make specific requests regarding
specific factual disputes. It was, instead, a list of sources
where he could possibly find evidence to support his claims. The
district court, “especially in light of the AEDPA’s strict
standards”, ruled that none of the requests had merit.
In addition to its original disposition, the district court
responded at length to Green’s discovery requests in denying his
Rule 59(e) motion. The district court recognized that its ability
to permit discovery was limited by the “good cause” requirement
found in Rule 6 of the Rules Governing § 2254 Cases, and that this
“good cause” requirement was directed at the likelihood of success
in the habeas petition. “Good cause may be found when a petition
for habeas corpus relief establishes a prima facie claim for
relief.” Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir.)
(quotation marks omitted), cert. denied, 531 U.S. 957 (2000).
Against this background, Green’s discovery requests —
according to the district court, “a cursory motion asking for leave
17
to take discovery of nearly every person involved in [Green’s]
trial” — do not satisfy the standard for a COA.
III.
For the foregoing reasons, a COA is
DENIED.
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