*1 court for further remand to the district will opinion
proceedings consistent with this court to reinstate her state
direct the district claim, over which the district
law contract jurisdiction pursu- to exercise
court declined 1367(c). parties will to 28 The
ant U.S.C. appeal. their own on this
bear costs EMERY, Petitioner-Appellant,
Jeff
Gary Director, JOHNSON, L. Texas De-
partment Justice, of Criminal Institu- Division, Respondent-Appellee.
tional
No. 96-20826. Appeals,
United States Court of
Fifth Circuit.
Sept. 1997. Rehearing April
On Petition for *2 Moran,
Thomas Donald Teicher Leora *3 Kahn, Houston, TX, McKinney, & Schneider Petitioner-Appellant. for Martinez, Meredith Anne Assistant Attor- General, Austin, TX, ney Respondent- Appellee. KING, BENAVIDES,
Before SMITH Judges. Circuit SMITH, Judge: E. JERRY Circuit Emery, -pauper- proceeding Jeff in forma is, appeals for writ denial his corpus. Concluding of habeas that several of by procedural his claims are barred default merit, and that others are without .the stay affirm and vacate the of execution. I.
A. day Muhlinghaus One LaShan re- apartment her turned to and undressed. her, Emery, an accom- Unbeknownst plished apartment burglar, had entered her using pass key. Muhlinghaus a stolen When apartment, Emery hid in her entered the roommate’s closet.
Muhlinghaus went into her roommate’s to return a dress she had borrowed. bedroom Muhlinghaus, stabbing attacked her dead, twenty-five times. After she was Em- ery body. sexual intercourse with her police any The not find evidence that did anything. stole to the house where he returned (“Debo- wife, lived with his Deborah rah”). showering disposing of his After clothes, Emery drove blood-stained knife and with Deborah to to the scene crime police investigation. Emery con- observe the later to fessed his actions to his wife and brother, Smith, Marie James his foster Michaeloff. burglary objecting to the intro- every his wife at least
Emery assáulted his wife. slapped that he usually hit her with duction evidence Although he day. other bar, trial court conducted an The state habeas fists, occasionally used a metal he nicknacks, evidentiary hearing various find- He also and issued lighters. ashtrays, The of Criminal ings At of fact.1 Texas Court on the bathtub. pound her head child, Appeals on the once, was a tod- denied hit her who least August Finally, July merits dler, room. across proceedings. Five began divorce Deborah 1995, Emery a second In November filed later, reported crimes she months petition, raising several new state habeas police. to the issues, challenges including general to Tex- penalty new claims of
as’s death scheme and B. on counsel’s hav- ineffective assistance based *4 testify hav- ing not to convinced capital murder convicted of Emery was part objected particular to a burglary, see commission of during the Tex. petition pend- jury charge. While that (Vernon 19.03(a)(2) 1994), § Ann. Pen.Code Emery, habeas ing, filed the instant federal in 1986. The to death was sentenced petition. Appeals reversed of Criminal Texas Court transcript the trial portions of because the rule that state follows Texas, Emery v. 800 stolen. See been may prisoner seek habeas relief state (en banc). (Tex.Crim.App.1990) S.W.2d 530 court, Consequently, not both. federal but Texas courts refuse to consider a habeas the obtained a retried The state petition pending. petition while a federal is conviction, whereupon jury sen second Green, 914, parte See Ex 548 S.W.2d appeal, in 1991. On him to death tenced 1996, (Tex.Crim.App.1977). February In alia, unsuccessfully argued, inter prin Appeals of invoked this Court Criminal penalty phase at the jury instructions ciple and dismissed second state because did not allow inadequate were 1996, petition. August In habeas federal mitigating all relevant jury to consider court relief on all his district denied Texas, Emery v. 881 S.W.2d evidence. See granted probable but a certificate of claims 702, (Tex.Crim.App.1994), cert. de 711-12 (“CPC”) appeal. Emery v. cause See 1257, nied, 513 U.S. (S.D.Tex.1 Johnson, F.Supp. (1995). L.Ed.2d 996).2 C. II. 1995, Emery In his first state habeas filed A. alia, right that his
petition, arguing, inter
analysis of the claims that
testify on his own behalf had been denied
Our
peti
in his
state habeas
ineffective as-
raised
second
and that his counsel rendered
proce
complicated by
tion is
the doctrine of
by opening the door to the admission
sistance
may
A
history
dural default.
federal court
not con-
of his confession to Deborah and
Texas,
petitions
require
§
post-conviction
U.S.C. 2253 to
a "certifi-
1. In
habeas
amended 28
all
Appeals.
appealability”
are
the Court of Criminal
decided
a final order in a
cate of
before
11.07,
2(a)
§
art
proceeding
appealed.
Crim.
habeas
can be
Because
Tex.Code
Proc. Ann.
(amended 1995) (current
(Vernon Supp.1994)
petition
Emery filed his habeas
well
11.07,
§
Ann. art
at
version
Crim.
AEDPA,
Tex.Code
Proc.
before the effective date of the
this new
(Vernon
Supp.1997)).
aWhen
him,
requirement
apply
grant
and the
does not
fact,
requires
questions
the resolution
jurisdiction
of a CPC is sufficient to vest
in this
that rendered the conviction
state trial court
Texas,
236 n. 1
court. See Shute v.
performs
fact-finding
See id.
function.
Cir.1997) (on
(5th
rehearing). Similarly, the
2(c).
§
whether to issue the
The decision
writ
new standards of review contained in
104 of
Appeals.
still
with the Court of Criminal
remains
AEDPA,
1218-19,
apply
110 Stat. at
do not
Johnson,
petition.
v.
116 F.3d
See Green
2. Section 102 of the Antiterrorism and Effective
(5th Cir.1997).
1119-20
("AEDPA”)
Penalty
Death
Pub.L.
Act
(1996),
104-132,
No.
110 Stat.
1217-18
context,
'if
we review the district court’s deter
constitutional claim
prisoner’s
sider a state
findings
novo and its
rejection of that minations
law de
their
courts based
the state
Whitley,
for clear error. See Dison v.
facts
independent state
adequate and
claim on an
(5th Cir.1994).
185, 186
844, 20 F.3d
Maxey,
98 F.3d
Martin
ground. See
Cir.1996).
(5th
always easy,
It is not
11.071
Because article
is
new stat
however,
a state court
determine
whether
uninterpreted by state
largely
ute that
relief is based on
denying collateral
decision
eases,
whether we should
we instead consider
or, instead,
grounds
on the
procedural
affirm on the basis of the abuse-of-the-writ
interpretation
law. The
of federal
court’s
any
judgment
doctrine.
affirm a
We
supplied us with a useful
Supreme Court has
ground supported
the record. See Man
apply
procedural
rule: We will not
default
Nelson,
1202, 1204n.
garoo v.
state court to consider
unless the last
default
Cir.1989).4
,
“clearly
expressly”
particular
claim
A
is an abuse
second
independent
adequate state
on an
relied
prisoner urgés grounds
if
of the writ
Thompson,
ground. Coleman
not,
been,
were
raised in his
could have
but
2546, 2557,
722, 735, 111
115 L.Ed.2d
Collins,
petition. See Russell v.
first habeas
(1991).
(5th Cir.1991)
curiam).
(per
however,
apply,
This default rule does not
doctrine,
courts
Such a
federal
which
state rem-
petitioner
“if the
failed to exhaust
*5
justice by
recognize, encourages efficient
re
petitioner
to
and the court which
edies
quiring
prisoner
present
a
to
all claims for
present his claims
required
would be
Zant,
McCleskey
relief at once. See
v.
499
requirement
the exhaustion
order to meet
493,
1454,. 1469-70,
467,
111
113
U.S.
S.Ct.
procedurally
the claims
would now find
(1991).
517
The Texas courts have
L.Ed.2d
1,n.
111
at 2557 n.
barred.” Id. at 735
S.Ct.
twenty
recognized this doctrine for over
ease,
procedural
“there is
1.
In such
Carr,
See,
parte
years.
e.g., Ex
511 S.W.2d
for
of federal habeas re-
purposes
default
523,
(Tex.Crim.App.1974).
525-26
court
gardless of the decision
the last state
qualify
can
petitioner actually presented his
An abuse of the writ
to which the
Mottram,
v.
procedural
bar. See Murch
claims.” Id.
41, 45-46,
71, 73-74,
409
93 S.Ct.
34
U.S.
curiam).
(1972)
proce
A
(per
L.Ed.2d 194
B.
however,
it
adequate,
is not
unless
dural bar
“strictly
regularly”
or
to the “vast
applied
1.
Scott,
majority
Amos v.
claims.”
similar
federal district court reasoned
The
(5th
denied,
Cir.),
333,
cert.
516
61 F.3d
339
Emery’s
procedurally
claims were
1005,
557,
116 S.Ct.
133 L.Ed.2d
because, if
them
he tried to exhaust
barred
(1995). Historically, Texas courts have failed
manner,
barred
proper
in a
would be
in a
apply
the abuse-of-the-writ-doctrine
5(a)
11.071, §
Proo. Ann. art.
Tex.Code Crim.
manner, and, therefore,
regular
we
or
strict
(Vernon Supp.1997),
prohibits
which
the fil
Scott,
it.
Lowe v.
have refused to honor
See
untimely
appli
subsequent
or
habeas
Cir.1995).
(5th
873,
48 F.3d
cations, absent cause or actual innocence.3
(Tex.
1994,
Davis,
changed in
when the Texas
This
parte
Ex
947 S.W.2d
(en banc)
Appeals announced the
(upholding the con Court of Criminal
Crim.App.1996)
11.071).
abuse-of-the-writ-doc-
adoption
In a
of a strict
stitutionality of article
cases,
procedural
v.
capital
rule. See Trest
applies
but
of a
state’s
3. Article 11.071
different
11.07,
(Vernon
(5th
Proc Ann. art.
Whitley,
& n. 2
F.3d
1007-09
Crim.
Tex.Code
non-capital
adopts
Supp.1997),
Cain,
rule for
same
Cir.1996),
granted
nom. Trest v.
cert.
sub
felony convictions.
-U.S. -,
A overcome by showing preju cause and default cedural Johnson, Tucker v. B.
dice for that default. See 1997) (on July 97-20101 Cir. No. Emery argues that rehearing). anticipate passage of article
his failure to claim con- first ineffectiveness 11.071 constitutes cause for his failure questioning counsel’s Deborah cerns his plead grounds all his for relief his first confession, waiving marital thus *6 petition. 504(1), privilege, Evid. and see Tex.R.Crim. the confession. allowing the admission of Emery filed his first state explora- Explaining requires claim some this year July over one after Barber was background. tion of its factual decided, ignorance of his so he cannot claim during duty plead grounds to all his for relief law, Texas the marital Under review. his first for collateral commu privilege extends to confidential Therefore, cause for his he has shown no nications, Sterling v. not observed acts. See the writ doc- violation of Texas’s abuse of Texas, (Tex.App.— 814 S.W.2d 261-62 trine. refd) curiam). (per writ Debo Austin Emery to the rah testified that returned III. shortly after the murder with a blood house underpants knife stained and blood-stained A. arms, “had on his smeared on his and blood hands, shirt, Emery arms and his on his and his raises several ineffective-assis- pants, some on his work boot.” She tance-of-counsel claims. To establish ineffec- and assistance, Emery that her to the site of must both testified drove tive demonstrate investigation and the murder to watch the performance deficient his counsel and deficiency. Emery James Smith that he had prejudice resulting that that told from effective, pending Emery certify when the act became 5. to to the Court of cases filed motion questions concerning Appeals they certain precedent Criminal remain to the extent that " application interpretation of article and that with Lindh 's conclusion ‘do[] conflict rely 11.071. Because our decision does apply chapter do not retro 153 amendments " article, deny that motion as moot. Tucker, (quot actively.’ 280 n. Green, 2). at 1120 See Lindh n. Johnson, Although Murphy 6. F.3d 10 - -, Murphy, S.Ct. 1997) Cir. our er and Carter were influenced (1997). L.Ed.2d 481 applicability roneous of the AEDPAto view of performance law does not constitute deficient and instructed Smith killed a man unless it is that'it Debbie. so unreasonable rebuts the request from to verification strong presumption perfor that counsel’s testimony Impeaching this' was vital range mance “falls the wide within reason .of Emery’s identity. mistaken John defense of professional Washington, able assistance.” counsel, that an Quinn, feared effective his 689, 104 466 U.S. at at 2065. open would the door to cross-examination Quinn’s judgment that effective cross- Emery’s testimony confes- Deborah’s about examination of Deborah would been time, have Furthermore, Emery at that still sion. impossible opening the door to the without testify. Quinn feared that Em- intended to admission of was the confession reasonable. ery that make statements would waive would Similarly, explained infra, in more detail privilege and allow admission of the Quinn’s testify would belief that confession. open the confession door to that also was successful, mistaken-identity To be reasonable. judgments, These reasonable theory high defense to obtain a required the erroneous, if,ultimately satisfy even the stan- degree credibility jury. Conse- dard effective assistance counsel. strategic priorities quently, one of counsel’s straightforward. Ac- was be honest and 3. introduce, cordingly, Quinn wanted any event, Emery In has not demonstrated of, impact any incriminating lessen the evi- trial, prejudice. At both Smith Michae- prosecution might present. dence that
loff testified that confessed to Emery originally them. Although told Smith man, that he had he later stabbed identified Quinn argues incorrect (cid:127) Muhlinghaus picture. in a Michaeloff' re- belief-(1) testify would counted confession that was far more de- (2) that an cross-examination would effective reported by tailed and accurate than that open the to the admission of door Deborah. confession. It is difficult determine short, testimony In Deborah’s in the Quinn whether was correct latter be- duplicative testimony given confession was lief. The reveals that the most effec- record by Smith Michaeloff. cannot portion tive of the cross-examination was demonstrate that a third source the same Quinn’s analysis and detailed careful confession, change have sufficed among Deborah’s various inconsistencies prejudice result of his The lack of trial.8 police. statements to the Whether the Texas *7 denying Emery ground an alternative Rules Criminal Evidence7 would have re- on relief this claim. quired of Deborah’s entire the admission statement, report Emery’s including her
confession, C. open question. is an Emery’s this ineffectiveness
We need not resolve issue of state second claim Quinn questioned is akin to first. Debo evidentiary law. The Sixth Amendment does committing guarantee right Emery’s practice rah about not criminal defendants the pass key opening the to representation. burglaries, to v. door error-free Skillern (5th Cir.1983). Estelle, testimony Emery’s McGrady’s Mitchell about 851 alone, stealing quarters Emery ar Standing judg and televisions. counsel’s erroneous that, ment, gues opening the door to the any, requirements by if Ofstate admis- ("When by party, writing given or in evidence one whole on 7. See Evid. 106 Tex.R.Crim. may inquired by subject part or thereof be into recorded statement is introduced same party other... party, time an adverse' at that any any part writing introduce other or other (5th Lynaugh, ought to be 8. Cf. Romero v. recorded which fairness F.2d statement Cir.1989) it.”); (holding prisoner contemporaneously that a failed to estab- considered Tex. act, ("When part prejudice an lish the admission of cumulative Evid. declara- from R.Crim. tion, evidence). conversation, writing or recorded statement act, Collins, of an extraneous mance. this evidence See Clark F.3d sion of (5th Cir.1994). ineffective assistance. Quinn rendered Regarding Quinn’s request failure to a lim- affidavit, Emery’s he intend- According to iting not this evidence be history testify about his criminal as instruction ed to general propensity, considered for criminal that, theory was pass key His burglar. argued has not even that the lack of burglar, he not have experienced en- that instruction the trial fundamen- rendered home, as it Muhlinghaus’s contained tered tally unfair or unreliable. We conclude that stealing. At the time that nothing worth prejudiced by was not this failure. testified, Emery still intended Deborah take stand. IV. above, Quinn’s strategy trial
As mentioned
credibility by
to maintain
not
required him
A.
anything to hide. Fur-
appearing to have
Emery alleges that he was de
thermore, Quinn reasonably believed that it
right
testify
nied the
at trial. A criminal
strategy
damaging
vet
informa-
better
right
testify
defendant has a constitutional
himself,
allowing
prose-
tion
rather than
Arkansas,
on his own behalf. See Rock v.
province,
it.
It is not our
cution to introduce
2704, 2707-10,
49-53,
483 U.S.
review,
second-guess
counsel’s
(1987).
right
federal habeas court to reexamine state-court
everything
was convinced that he should do
questions.”
determinations on state-law
Es
differently.
begin
in the second trial
At the
McGuire,
62, 67-68,
502 U.S.
telle
trial,
ning of the
he informed his counsel that
(1991).
475, 479-80,
Emery’s third ineffectiveness claim Quinn radically different versions of what Quinn’s object failure to concerns when the happened night of the murder. For ex- prosecution questioned McGrady about Em ample, point, Quinn at one he told that he ery’s easily slapping Deborah. This claim is using a black male stabbed screwdriver dismissed. car, why to break into and that was *8 he was covered with blood. explained,
As we have a successful defense later, required impeaching testimony. Emery Quinn Deborah’s Somewhat informed Part of the cross-examination on that he in Muhlinghaus centered had met a bar and delay reporting Emery’s eventually Deborah’s had an crime. affair with her. He stated delay by prevent expos- Deborah stated that the was caused that he her killed to her from Emery. Consequently, her fear of Emery’s ing adultery Quinn the to his When wife. slapping jury Deborah was admissible to unlikely show the informed him that the was to Objection story, Emery of her fear. suggested reasonableness to its believe that re- futile, turning admission would been and failure parking have to the “screwdriver the lot to conversations, assert objection story.” a cannot be 'with these meritless Faced grounds finding perfor- Quinn reasonably Emery for a of deficient believed thát in- this, perform of and the defense duties. There also perjury. Because commit tended to is evidence in the record if Em- considerable that to leave the courtroom he threatened Emery strong-willed very unlikely and was ery testifying. on insisted by to allow to controlled his decisions be addition, Quinn Emery that In believed pressure persons. other from cross-examination, up well to would not stand him, support that jury would not believe Because we find sufficient in the that the record, by defense theo- testimony negate his the we are bound the state court’s would Quinn’s findings. Considering factual that ry identity. Emery co-counsel of mistaken right testify the of to agreed his assessment of wisdom understood his and that with Quinn’s to the not him testifying but did not threaten leave actions did coerce into not so, doing Emery’s right testify to was not courtroom. violated. Emery would have testi- night before The
fied, managed finally his counsel convince V. day, trial the next him to do so. At not colloquy Quinn lengthy in a engaged argu makes half-hearted explaining him that he the Emery, ment, Penry Lynaugh, based on 492 U.S. right testify regardless counsel’s advice. 302, 2934, (1989), L.Ed.2d on the that he Emery stated record under- scheme, sentencing applied the that as voluntarily he was rights his that stood instructions, through jury unconsti was testify. declining to prevented jury tutional it from because considering evidence the abuse he suffered B. as child. Instructional error of sort to a does not amount violation constitutional made a factual The state habeas court likelihood “unless there is a reasonable that rights his finding that understood jury applied challenged instruction in Quinn’s threats not coerce that did way prevents the consideration of procedural testifying. into de- not Absent constitutionally mitigating relevant evi proceeding, fect in the state habeas the state Scott, 486, Lackey v. dence.” presumed findings factual are to be court’s (5th Cir.1994) Texas, (quoting Johnson v. fairly supported correct unless are “not 2668-69, 2254(d)(8) record.” 28 U.S.C.A. (1993)) (internal (West 1994). quotation L.Ed.2d 290 Although makes the omitted). Furthermore, mitigat marks is bold the record devoid statement ‘uniquely evidence “must demonstrate testifying his evidence that decision permanent handicap[ with which “threat,” ] severe Quinn’s note not based on we through no fault defendant was burdened supported finding that this factual ” Johnson, his own.’ Turner by Quinn’s affidavit but own Cir.1997) (quoting Graham v. statements under oath.9 (5th Cir.1992) Collins, a great Our review of record reveals (en banc), aff'd, 506 U.S. 113 S:Ct. that' his deal of evidence understood (1993)). L.Ed.2d right testify and to do that his decision not Quinn’s faults persuasion so Whatever have was based existed penalty In death scheme that Texas maintained coercion. addition to statements Emery, prior to Quinn Quinn’s note that see Tex.Code Crim. Peoc. Ann 37.071(b) (Vernon Supp.1991) testimony art. & during Emery’s absence (amended 1991) (current harm, Quinn’s him at Tex.Code caused little co- version have (Vernon 37.071(b)-(e) art. in the courtroom Crim. PROC. Ann. counsel intended remain *9 say Emery argues he had been coerced. also the habeas court's not Of 9. that state course, finding disregarded Emery’s argument because factual should be its assumes conclu- sponsored by found, ignores perjury If, coun- ''[i]t Quinn the trial sion. as the state habeas court Emery Quinn suggests that at trial.” sub- sel Quinn Emery testifying, did not coerce into did perjury by Emery anyone asking whether orned commit) (and Emery perjury. did not suborn testifying, knowing him into that had coerced Supp.1997)),10 Accordingly, AFFIRMED, trial court had the benefit judgment the the is correctly stay Penry of modified its instruc- and the of execution is VACATED. Supreme with the comport tion .to Court’s Specifically, decision. the court instructed ON PETITION FOR REHEARING jury:
the
April
Issues,
Special
answers
the
[Y]our
punishment
the
to be
which determine
as-
PER CURIAM:
court,
the
the
should
sessed
defendant
rehearing, Emery
On
urges us
your finding
of
be reflective
the
to reconsider our determination that
the
culpability
personal
of the defendant
moral
claims that he
in
present
did not
his first
in this case.
application
habeas
are proeedurally
state
by Texas’s
barred
common-law abuse-of-the-
you
questions
When
about
deliberate
the
support
writ
In
of
Issues,
doctrine.
Special
contention
posed
you
in
are
the
that the
pro-
common-law doctrine does hot
any mitigating
sup-
consider
circumstances
eedurally
claims,
bar federal
of these
review
ported by
presented
evidence
in
the
both
case,
offers a single published
phases
Ex
mitigating
of the trial. A
circum-
Fierro,
Parte
(Tex.Crim.App.1996),
S.W.2d 370
any aspect
stance
be
of the defen-
—
denied,
U.S. -,
rt.
character,
record,
117 S. Ct.
background,
dant’s
ce
(1997),
201
(9th Cir.1997) (internal quotation
regularity
trine with
strictness and
757,
sufficient
—
ground.
an
state
We
adequate
it
denied,
U.S. -,
render
omitted), cert.
marks
-
—
accept
are
this conclusion. See
bound
(1998)).
1826,
L.Ed.2d
118 S.Ct.
,
(5th
v.
Narvaiz
Johnson
the burden of
note
bears
also
that
We
Cir.1998) (“It is more than well-established
apply
not
the doctrine
proving that Texas did
that,
circuit,
panel may
over
this
one
not
regularity
and
dur-
sufficient strictness
with
decision,
wrong,
prior
right
rule the
or
of
period.
v.
time
See Stokes
ing the relevant
panel in the absence of en banc reconsidera
(5th Cir.1997),
Anderson,
F.3d
superseding
Supreme
tion or
of
decision
the
—
denied,
-,
cert.
(internal quotation
Court.”
marks
brack
(1998);
Maxey,
v.
germane to the determination of whether federal review of his claims is barred