Daniel Acker v. Lorie Davis, Director
693 F. App'x 384
| 5th Cir. | 2017Background
- In March 2000 Daniel Acker was convicted and sentenced to death in Texas for the murder of his girlfriend, Marquetta George; the State charged strangulation and/or blunt-force trauma as the cause of death.
- Trial evidence: witnesses saw Acker force George into his truck, heard a loud hit, and later George’s body was found ~2.5 miles from their trailer; the trial medical examiner testified extensive blunt-force injuries and signs of strangulation, but could not determine which caused death.
- Defense theory at trial: George jumped (or was trying to jump) from Acker’s truck while it was moving and suffered fatal injuries; trial court excluded certain hearsay and defense-safety experiments (prior instance of George attempting to jump; investigator’s truck test).
- Post-conviction/federal habeas: at an evidentiary hearing both parties’ new medical experts agreed strangulation was inconsistent with the injuries and death resulted from blunt-force trauma; State’s expert opined George was run over, defense expert thought jumping was likely but conceded running-over was possible.
- District court denied federal habeas relief (including actual-innocence gateway and various trial-error claims) and denied a COA; Acker sought a COA from the Fifth Circuit.
Issues
| Issue | Acker's Argument | State's Argument | Held |
|---|---|---|---|
| Actual innocence gateway to consider procedurally defaulted claims | New evidence (medical experts now agree strangulation inconsistent) + excluded evidence of prior attempt to jump makes it more likely than not a reasonable juror would have had doubt | Total record still supports conviction (jury could convict on blunt-force theory, evidence supports incapacitation/run-over), Acker failed to meet Schlup standard | Denied COA: reasonable jurists would not debate district court’s rejection of gateway claim |
| Due process — conviction upheld on false/discredited/new theory (strangulation vs. run-over) | Medical examiner’s strangulation testimony was discredited; reliance on it and later affirmance on a different theory violated fairness and accuracy | Discrediting of strangulation does not necessarily make earlier testimony false; indictment/jury instructions included blunt-force theory; district court properly assessed total evidence | Denied COA: no debatable due process violation |
| Trial evidentiary rulings (exclusion of prior-jump statements and investigator’s experiment; hypothetical to medical examiner) and refusal to give lesser-included instructions | Excluded evidence was critical to defense theory and harmlessness at trial cannot be assumed given new medical evidence; jury should have been instructed on lesser offenses | Exclusions implicated hearsay rules/assumption-of-facts objections; errors (if any) were harmless given State’s blunt-force/run-over theory and overwhelming evidence | Denied COA: claims procedurally barred and not excused; merits not debatable |
| Ineffective assistance/fraud by state post-conviction counsel | State habeas counsel submitted Acker’s own writings verbatim, amounting to fraud and denying effective assistance, which should excuse procedural defaults | Martinez/Trevino exception applies only to ineffective assistance of trial counsel claims; ineffective state habeas counsel (standing alone) does not excuse defaults; fraud claim insufficient | Denied COA: no debatable claim that state habeas counsel’s conduct excuses defaults or states a cognizable federal claim |
Key Cases Cited
- Miller-El v. Cockrell, 537 U.S. 322 (standards for COA and the threshold review of habeas claims)
- Slack v. McDaniel, 529 U.S. 473 (standards for COA where district court dismissed on merits or procedural grounds)
- House v. Bell, 547 U.S. 518 (consideration of new evidence in actual-innocence gateway review)
- Schlup v. Delo, 513 U.S. 298 (standard for gateway actual-innocence claims)
- Martinez v. Ryan, 566 U.S. 1 (limited exception for ineffective assistance of post-conviction counsel re: trial-ineffective claims)
- Trevino v. Thaler, 133 S. Ct. 1911 (extension of Martinez in certain state-court contexts)
- Ramirez v. Dretke, 398 F.3d 691 (5th Cir.) (resolving doubts in death-penalty COA determinations in petitioner’s favor)