Case Information
*1 Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges. RHESA HAWKINS BARKSDALE:
Kenneth Eugene Foster was convicted in Texas state court of
capital murder during the course of a robbery in 1996 and sentenced
to death. The district court granted conditional habeas relief on
Foster’s claimed unconstitutional sentence under the Eighth
Amendment, as construed in
Enmund v. Florida
,
The State appeals the cоnditional habeas-relief. Subsequent
to our recent denial of Foster’s COA request,
Foster v. Dretke
,
No. 05-70016,
COA DENIED; conditional habeas relief granted by the district court VACATED; habeas relief DENIED.
I.
On the evening of 14 August 1996, Foster and three others – Mauriceo Brown, DeWayne Dillard, and Julius Steen – embarked on armed robberies around San Antonio, Texas, beginning with Brown’s announcing he had a gun and asking whether the others wanted to rob people: “I have the strap, do you all want to jack?”. During the guilt/innocence phase of Foster’s trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove.
Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.
Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster’s vehicle turn around and stop in front of Michael LaHood’s house; Patriсk approached Foster’s vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster’s vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood’s face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.
Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night’s earlier robbery victims.
Later that day, all four men were arrested; each gave a written statement identifying Brown as the shooter. Brown admitted being the shooter but denied intent to kill. He testified that he approached Michael LaHood to obtain Patrick’s telephone number and only drew his weapon when he saw what appeared to be a gun in *4 Michael LaHood’s possession and heard what sounded to him like the click of an automatic weapon.
In May 1997, Foster and Brown were tried jointly for capital murder committed in the course of a robbery. The jury found each guilty of that charge and answered the special issues at the penalty phase to impose a death sentence for each.
On direct appeal, Foster contended, inter alia : because he did nothing more than agree to commit and participate in robberies, his death sentence violated the Eighth Amendment; application of Texas Penal Code § 7.02(b) (conspiracy party liability) violated the Sixth and Fourteenth Amendments to the Constitution; and the trial court erred in refusing a jury instruction оn the lesser- included offense of aggravated robbery. The Texas Court of Criminal Appeals affirmed Foster’s conviction and sentence.
The court held, inter alia : Foster’s sentence did not violate the Constitution because, before convicting him of capital murder as a party, the jury had to determine he intended to promote the commission of intentional murder; a law–of–the–parties instruction under § 7.02(b) is appropriate when no such charge is in the indictment because the statute describes attempt to carry out, not the offense of, conspiracy; and a lesser-included–offense instruction was not warranted because nothing in the record would permit a rational jury to find Foster guilty only of aggravated robbery and not murder in the course of a robbery. See Foster v. *5 State , No. 72,853 (Tex. Crim. App. 30 June 1999) (unpublished) ( TCCA Opn. ) . Three judges dissented, and would have held, inter alia , that Foster was entitled to a lesser–included–offense instruction. . at 33 (Mansfield, J., dissenting).
The Supreme Court of the United States denied a writ of
certiorari .
Foster v. Texas
,
In April 1999, before the conclusion of his direct appeal,
Foster filed for state–habeas relief. After holding evidentiary
hearings, the state-habeas court issued findings of fact and
conclusions of law, recommending denial of relief; the Court of
Criminal Appeals denied relief in an unpublished order.
Ex Parte
Foster
, No. 50,823-01 (Tex. Crim. App.
The Supreme Court again denied a writ of certiorari .
Foster
v. Texas
,
Foster presented 14 claims in his federal-habeas petition,
including the actual–innocence claim for which he belatedly seeks
a COA from this court.
Included with the petition were new
affidavits and other supporting evidence, and an evidentiary
hearing was requested. The State moved for summary judgment. On
3 March 2005, the district court granted conditional habeas relief
as to sentencing for three claims and denied relief, as well as a
COA, for the remaining 11.
Among other rulings, the requested
evidentiary hearing was denied and the State’s summary-judgment
*6
motion was denied as moot. See
Foster v. Dretke
, No. SA-02-CA-301-
RF,
Each side appealed. To do so, Foster requested a COA from our
court on two claims.
Foster
,
II.
Review of this 28 U.S.C. § 2254 habeas proceeding is subjeсt
to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See , e.g. ,
Penry v.
Johnson
,
A.
Under AEDPA, Foster may not appeal the denial of habeas relief
unless he obtains a COA from either the district, or this, court.
28 U.S.C. § 2253(c); F ED . R. A PP . P. 22(b)(1);
Slack v. McDaniel
,
Obtaining a COA requires “a substantial showing of the denial
of a constitutional right”.
28 U.S.C. § 2253(c)(2); e.g. ,
*7
Miller-El v. Cockrell
,
In determining whether to grant a COA, this court is, inter
alia , limited “to a threshold inquiry into the underlying merit of
[Foster’s] claims”.
Miller-El
,
For purposes of the mandated threshold inquiry, we recognize that, in ruling on the merits, the district court was required by AEDPA to defer, with limited exceptions, to the state court’s resolution of Foster’s claims. The exceptions provided by AEDPA turn on the character of the state court’s ruling.
First, such deference is mandated both for questions of law
and for mixed questions of law and fact, unless the state court’s
“decision ... 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);
see
Hill v. Johnson
,
Second, such deference is required for the state court’s “decision [unless it] was based on an unreasonable determination of the facts in [the] light of the evidence presented in the State court proceeding”. 28 U.S.C. § 2254(d)(2). On the merits, *9 pursuant to AEDPA, the state court’s factual findings are presumed correct; in district court, Foster had “the burden of rebutting [that] presumption ... by clear and convincing evidence”. 28 U.S.C. § 2254(e)(1). This threshold inquiry is considered against the elements for Foster’s claim. Again, it is but one of the procedures mandаted by AEDPA for deciding whether a COA should be granted.
As presented in state and federal court, Foster seeks a COA for his claim he is innocent, as proven by: Dillard’s testimony during a state-habeas evidentiary hearing; and an affidavit from Steen presented for the first time during the federal-habeas proceeding. Before addressing the request, we must decide whether to consider it because of its untimeliness.
1.
Foster’s initial COA request to our court was filed on 1 June 2005 and addressed two claims (neither concerned actual innocence). On 29 June 2005, the State filed its opposition; it did not, of course, address actual–innocence, as Foster had not raised the issue. Foster filed: а reply brief on 27 July 2005 for his COA request; and a sur–reply on 11 October 2005 to the State’s reply brief regarding its appeal from the conditional habeas–grant, in which he also addressed his COA request. Neither of Foster’s reply briefs addressed actual–innocence or claimed he had inadvertently failed to include that issue in his COA application. (It is assumed *10 that, in replying to the State’s briefs, Foster’s counsel read them. Obviously, in doing so, he should have noticed an actual- innocence claim was not addressed.)
Foster did not make this inadvertent-failure assertion until after our 13 March 2006 COA–denial. On 27 March 2006, approximately ten months after Foster’s initial COA application was filed, Fоster’s counsel filed a “Motion for Consideration of Inadvertently Omitted Issue”, claiming that, while reading our 13 March COA denial, he “immediately noticed that the opinion addressed only two issues; there was no mention regarding [the actual-innocence claim]”. That motion stated: “Counsel’s fifty–page brief [for the initial request] included twelve pages of argument about whether a reasonable and fair jury would more likely have acquitted Mr. Foster in light of the accounts of Dwayne Dillard and Julius Steen”; and this issue’s not being addressed in the 13 March COA–denial “alarmed counsel”. Counsel then acknowledged he had failed in the initial application to submit the portion of his brief addressing Dillаrd and Steen, and asked our court to consider the omitted issue.
Pursuant to AEDPA, there is no limitations period governing the filing of COA requests. Of course, Foster’s 4 April 2005 notice of appeal satisfied the related limitations period for filing an appeal. F ED . R. A PP . P. 4. In any event, in a situation such as this, where Foster appealed the denial of relief on various *11 claims and requested a COA for that, he generally would have waived any claim not addressed in his COA application/brief.
Foster’s situation, however, is somewhat different than the usual case where a party waives a claim by failing to raise it. Here, counsel claims he unintentionally failed to do so becausе he filed the wrong brief.
As noted, Foster’s initial COA request to our court was denied. Generally, we would not consider this new request. Because the State’s appeal is pending in our court, however, we will consider the COA request for the actual–innocence claim. Counsel in future cases are warned that, should they seek to likewise raise “inadvertantly-omitted” COA requests, they may well not be allowed to do so, for obvious reasons. In this instance, counsel’s purported reasons for failing to initially request a COA on this issue are nothing short of inexcusable.
2.
Pursuant to a plea agreement, Steen testified at trial against Brown and Foster; Dillard did not testify. Foster maintains Dillard’s testimony in the state-habeas proceeding and Steen’s affidavit in the federal-habeas proceeding (clarifying Steen’s trial testimony) demonstrate Foster’s actual innocence and ineligibility for the death penalty.
As of the state-habeas evidentiary hearing, Dillard had already begun serving a life–sentence for another capital murder he *12 committed with Steen. Dillard testified: there was no agreement to commit robberies the night of Michael LaHood's murder; although he (Dillard) provided the gun, he had nothing to do with the robberies or the murder; Foster was just the group's driver, not the getaway driver; after the second robbery, Foster said he wanted to stop, so Dillard tоok the gun back and believed no more robberies would be committed that night; he directed Foster to drive through the residential area where Michael LaHood lived; Foster stopped because a woman flagged the car down and because Steen told him to; there was no agreement to rob Michael LaHood; and, after Brown shot Michael LaHood, Foster tried to leave but Dillard would not let him.
Steen’s affidavit in the federal-habeas proceedings stated: concerning his trial testimony that he “understood what was probably fixing to go down” when Brown exited the vehicle at Michael LaHood's residence, he understood, at that point (but nоt before), what might happen; Steen did not think Foster knew what was going to happen; there was no agreement to commit robbery; everyone was shocked after Brown shot Michael LaHood; and by testifying at trial he needed to stay awake because he was “riding shotgun", he meant a person gets a “good view in the front seat”, not that riding in that position means committing robberies.
In denying habeas relief in March 2002, the Court of Criminal Appeals did not address Dillard’s testimony. Steen’s affidavit, of *13 course, was also not mentioned, because it was presented for the first time during federal-habeas proceedings.
In addressing Foster’s actual–innocence claim, the district
court first noted
Herrera v. Collins
,
The district court then stated: Dillard’s new testimony and Steen’s affidavit merely repeat thе same non–credible assertions made by Brown’s trial testimony and Foster’s statements to police (namely, that Brown exited the vehicle at Michael LaHood’s house only to get Patrick’s telephone number); and the jury rejected Brown’s testimony by finding him guilty of capital murder. The court also stated the jury implicitly rejected Foster’s claims to police that: he was not involved in the night’s robberies; he had no idea Brown carried a gun when he approached Michael LaHood; and, when Brown exited the vehicle, Foster did not think Brown was going *14 to rob Michael LaHood. The court held: because Dillard’s new testimony and Steen’s affidavit merely repeat testimоny the jury heard and rejected, there is no reasonable possibility any rational jury would have found Foster not guilty of capital murder based on that testimony and affidavit. Foster , 2005 U.S. Dist. LEXIS 13862, at *48-49.
Foster conceded during oral argument his actual-innocence
claim is raised here only as a stand-alone claim. As the district
court held, actual–innocence is not an independently cognizable
federal-habeas claim.
Dowthitt v. Johnson
,
The Supreme Court recently decided House v. Bell , 126 S. Ct. 2064 (2006), a habeas case in which “House, protesting his innocence, [sought] access to federal court to pursue habeas corpus relief based on constitutional claims that are procedurally barred under state law”, id . at 2068; and as a stand-alone claim for such relief, id . at 2086. The Court cоncluded House provided substantial evidence suggesting he might not have committed the murder for which he was convicted; and thus held he satisfied the Schlup standard, enabling him to use his actual–innocence claim to raise an otherwise procedurally barred habeas claim. . at 2087.
The Court, however, “decline[d] to resolve” whether Herrera left open the possibility of stand-alone actual–innocence claims. *15 Id . It further stated: even if a stand-alone actual–innocence claim were hypothetically cognizable, House was not entitled to relief on that basis, despite meeting the Schlup standard. . at 2087.
Absent an en banc, or intervening Supreme Court, decision, one
panel of this court may not overrule a prior pаnel’s decision.
E.g. ,
Hogue v. Johnson
,
B.
In reviewing, under the deferential AEDPA standard, the
district court’s granting conditional habeas relief, its findings
are reviewed for clear error; conclusions of law, de novo . E.g. ,
Schaetzle v. Cockrell
,
As also discussed, a state court reaches an unreasonable
result when it correctly identifies the relevant precedent but
unreasonably applies that precedent to the facts.
Wiggins v.
Smith
,
On direct appeal and in his federal-habeas petition, Foster claimed: pursuant to the Eighth Amendment, he was ineligible for the death penalty “because he did not kill, attempt to kill, or intend to kill [Michael] LaHood”. Foster , 2005 U.S. Dist. LEXIS 13862, at *76. At oral argument here, Foster based his Eighth Amendment challenge largely on the above-described actual–innocence claim, asserting he was ineligible for the death penalty because he was actually innocent. Because we deny Foster a COA on that claim, we do not consider it. Instead, we consider his Eighth Amendment clаim as presented to, and decided by, both the Court of Criminal Appeals on direct appeal and the district court.
In rejecting this claim on direct appeal, the Court of Criminal Appeals held the evidence supported the jury’s finding on the following special issue, and with it, the death penalty. See TCCA opn . at 31-32. That special issue asked whether the jury “found from the evidence beyond a reasonable doubt that Kenneth Foster actually caused the deceased’s death, or that he intended to kill the deceased or another, or that he anticipated that a human life would be taken ”. Id . at 12 (internal quotation omitted) (emphasis added). Because it was undisputed that Brown shot Michael LaHood, the issue relevant to Foster was whether the jury found he “anticipated that a human life would be taken”. Id .
The Court of Criminal Appeals had previously rejected similar
claims in
Lawton v. State
,
The
district
court
held
this
direct-appeal
holding
unreasonable under AEDPA. In addressing Foster’s Eighth Amendment
claim, the court first discussed applicable Supreme Court
*18
precedent.
Enmund
,
Relying upon Supreme Court precedent discussed infra , the district court granted Foster conditional habeas relief because a jury had not made both requisite Tison findings: (1) that Foster substantially participated in the robbery–conspiracy; and (2) that he acted with reckless indifference to human life. Foster , 2005 U.S. Dist. LEXIS 13862, at *82-83. In so holding, as also discussed infra , the court held the jury had made the reckless- indifference finding. It held, however, that the jury had not been required to make the first of the two required findings: that Foster “had major participation in the felony committed, i.e., the armed robbery conspiracy that culminated in [Michael] LaHood's murder”. . at *80 (internal quotation omitted).
Along this line, the district court did not, however, accept Foster’s claim that, as the group’s driver, he was per se ineligible for the death penalty. The court ruled a rational jury unquestionably could have made the above requisite major- participant finding, based on the following evidence: when arrested, Foster had a pair of cellular telephones from robberies committed a few nights before the murder of Michael LaHood; on the night Michael LaHood was killed, Foster drоve his co-defendants around neighborhoods with which he was familiar; he shared in the proceeds of the night’s earlier robberies; no evidence suggested anyone directed Foster “to take up his extended pursuit” of Mary Patrick’s vehicle as she drove to Michael LaHood’s house; and Steen believed Foster was in charge that night because he controlled where the conspirators drove and when they stopped. . at *81.
Nevertheless, the district court held
Apprendi v. New Jersey
,
Accordingly, because, as the district court noted, no evidence
supports finding Foster intentionally murdered Michael LaHood or
intended that he be murdered, the court should have examined the
entire record of the state court proceedings to determine whether
any state court made the requisite
Tison
/
Enmund
findings.
Clark v.
Johnson
,
Similar to the Court of Criminal Appeals’ decision reviewed in
Clark
, it appears the Court of Criminal Appeals upheld Foster’s
death–sentencе on a flawed legal theory, based on its 1995 decision
in
Lawton
.
As noted supra , the Court of Criminal Appeals held
that, before convicting Foster, the jury had to determine he
specifically intended either to murder Michael LaHood or promote or
assist in that murder. The cases
Lawton
cites (for example,
Tucker
v. State
,
Foster's jury was instructed pursuant to both §§ 7.02(a) and (b). Section 7.02(b) does not require the same level of intent. It allowed the jury to convict Foster if it found he should have *21 antiсipated a co-conspirator might commit murder, even if Foster did not intend for that murder to occur. T EX . P ENAL C ODE § 7.02(b). Therefore, the Court of Criminal Appeals erred by relying on Lawton to uphold Foster’s death sentence.
As discussed, our review does not end merely because the state
court’s decision was based on flawed reasoning.
Neal v. Puckett
,
1.
Addressing the second required finding first, and as the district court held, Foster obviously displayed reckless indifference to human life. The jury found as much when it answered the earlier-described special issue in the affirmative (the jury could not answer that issue in the affirmative unless it found, at a minimum, Foster anticipated a life would be taken). The district court stated:
[I]nsofar as [Foster] argues there was legally insufficient evidence showing that he acted with reckless disregard for human life , that *22 contention lacks any arguable merit . Foster could not have helped but anticipate the possibility that a human life would be taken in the course of one or more of his co- conspirators’ armed robberies. By transporting a pair of pot-smoking armed robbers to and from one robbery after another, Foster clearly displayed the type of “reckless disregard for human life” the Supreme Court had in mind when it employed that term in Tison . Foster knowingly engaged in criminal activities known to carry a grave risk of death....
Foster
,
2.
Despite the above-described district-court holding to the contrary, there was a state-court finding that Foster played a major role in the criminal activity culminating in Michael LaHood’s murder. First, it is at least arguable the jury made that finding. In any event, the Court of Criminal Appeals did. Accordingly, its ruling was not unreasonable under AEDPA.
a.
As discussed, the jury was allowed to find Foster guilty of capital murder by finding he anticipated a life would be taken, a lesser standard than requiring intent to kill. Concomitantly, the jury could have used the special issues to find Foster ineligible for the death penalty based on his role in the crime. For example, the jury found Foster anticipated a life would be taken; but, had it believed Foster did not play a major role in the activity leading to Michael LaHood’s murder, it could have found, for *23 another of the special issues, that he would not likely be dangerous in the future and, thus, answered that special issue in the negative, notwithstanding the evidence presented for Foster’s criminal cоnduct on other occasions.
It did not. Instead, it found Foster anticipated a life would be taken and presented a risk of future dangerousness; therefore, it recommended he receive the death sentence. As discussed, the special issues, however, did not require the jury to find Foster had specific intent to kill; nor did they explicitly require the jury to consider the Enmund / Tison requirements. Therefore, as noted above, we consider the Court of Criminal Appeals’ direct- appeal opinion.
b.
That court denied Foster's claim that the evidence was insufficient to “support a finding that Foster deliberately engaged in any culpable conduct that causеd death”. Foster v. State , No. 72,853 at 12. It noted the trial evidence demonstrated Foster: (1) actively participated in the group's robberies; (2) knew members of the group were using a gun to commit them; (3) shared the proceeds from them; (4) was the getaway driver; and (5) expressed no remorse when Michael LaHood was murdered. Id . at 13. Therefore, the court held a rational jury could have determined Foster anticipated a life would be taken. . In addition, the court noted: after Brown shot Michael LaHood, Foster “drove him *24 away ... , all the while telling Brown to hide the gun”, id . at 10; further, when police pulled over the vehicle, Foster encouraged Brown to hide the gun in his underwear, id . at 5.
These rulings demonstrate the Court of Criminal Appeals determined Foster was, inter alia , a major participant in the night’s criminal activities, including the robbery and murder of Michael LaHood. That court, like the jury, rejected Foster’s claims that he did not participate in the robberies and did not know Brown was planning to rob Michael LaHood.
A death sentence violates the Eighth Amendment if it is not
proportional to the crime for which the defendant was convicted.
See
Tison
,
In a number of ways, the Court of Criminal Appeals’ rulings
regarding Foster are similar to those noted by the Supreme Court in
upholding the death sentence for the non–shooters in
Tison
. There,
the Court discussed the findings by the Arizona Supreme Court,
which had noted: “After the killings [the brothers] did nothing to
disassociate [themselves] from [the shooters], but instead used the
victims’ car to continue on the joint venture, a venture that
lasted several more days”.
Tison
,
Further, Tison noted both of the death–sentenced non–shooters assisted, in the prison breakout, a man they “knеw had killed a prison guard in the course of a previous escape attempt”. .; see also id . at 139 (noting previous escape attempt was “a number of years” before the one in issue). The facts in Tison are analogous to those here. In denying Foster’s claim that the evidence was insufficient to support the jury’s affirmative answer to the future-dangerousness special issue, the Court of Criminal Appeals noted: a day or two before Michael LaHood was murdered, Foster, Steen, Dillard, and Brown had participated in another armed *26 robbery , TCCA opn. at 11; and, previously, Foster and a friend shot at people in a truck while driving alongside them on a highway, id . at 12. In sum, as stated by the district court, discussed supra , a rational fact finder could have found: Foster was a major participant; and he acted with reckless indifference to human life. That the other robbery did not result in a murder in no way suggests Foster did not play a major role in either that robbery or the one leading to Michael LaHood’s murder. This point is further supported by Foster’s having previously fired a weapon into the moving vehicle.
As stated above, and pursuant to AEDPA’s deferential standard of review, because the Court of Criminal Appeals (and arguably the jury) made the requisite Enmund / Tison findings, that court’s decision was not unreasonable. Accordingly, the district court erred in granting Foster habeas relief.
III.
For the foregoing reasons, a COA is DENIED ; the conditional habeas relief is VACATED ; and habeas relief is DENIED .
COA DENIED ; CONDITIONAL HABEAS GRANT VACATED; HABEAS RELIEF DENIED