Hill v. JohnsonHill v. Johnson
- Reporters:
- , , ,
- Before:
- King, Jolly, Parker
Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.
KING, Chief Judge:
As is required under
I. PROCEDURAL BACKGROUND
Following a jury trial, Mack Oran Hill (“Hill“) was convicted of capital murder on July 7, 1989, and was sentenced to death on August 3, 1989. The Texas Court of Criminal Appeals
Hill was appointed counsel to represent him in state habeas proceedings on March 24, 1997. With the permission of the Court of Criminal Appeals, Hill‘s counsel filed in state court on April 11, 1997 a skeletal petition for habeas relief, and filed a complete petition on December 17, 1997. In the latter petition, Hill asserted eight grounds for relief. On August 5, 1998, the state habeas court, which was also Hill‘s trial court, held an evidentiary hearing on Hill‘s claim that the district attorney improperly withheld information as to the existence of a deal for leniency with several witnesses who testified at Hill‘s trial. Shortly after the conclusion of that hearing, the state court recommended that relief be denied, and on November 12, 1998 issued its findings of fact and conclusions of law. The Texas Court of Criminal Appeals denied relief with written order on February 24, 1999.
Hill‘s counsel almost immediately filed a motion for equitable tolling of the statute of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA“),
Hill filed his petition seeking federal habeas relief on March 30, 1999. He filed motions under
Hill filed a timely notice of appeal. He sought a certificate of appealability (“COA“) from the district court on
II. DISCUSSION
Hill seeks a COA from this court on four issues relating to his state trial. Hill alleges that the district attorney failed to reveal implied understandings for leniency between himself and several witnesses, failed to correct false and misleading testimony, and failed to disclose impeachment evidence. He also asserts that his due process and equal protection rights were violated when the Texas Court of Criminal Appeals failed to utilize the “reasonable alternative hypothesis” construct for review of the sufficiency of circumstantial evidence entered against him, in direct contravention of its own decision to apply that construct to cases such as his. In addition, Hill challenges the district court‘s denial of his motions requesting additional discovery, and the assistance of a forensic expert and of an investigator, and its granting of Respondent‘s motion for summary judgment.
Hill‘s petition for federal habeas relief was filed on March 30, 1999, and therefore his case is governed by the provisions of the AEDPA. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). Under
In assessing whether Hill is entitled to a COA, we must keep in mind the deference scheme laid out in
As a result, we must defer to the state court unless its decision “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.”
A.
In his first challenge, Hill contends that the State violated the commands of Giglio v. United States, 405 U.S. 150 (1972), in failing to reveal implied understandings for leniency between the district attorney and two witnesses, Danny and Allen Crawford. The Crawfords testified at Hill‘s trial regarding the removal of property from the shop of the individual Hill was accused of murdering. That an accused‘s constitutional rights are violated when the State withholds material evidence affecting the credibility of witnesses is well-established. See, e.g., Pyles v. Johnson, 136 F.3d 986, 998 (5th Cir.), cert. denied, 524 U.S. 933 (1998). In general, a petitioner seeking habeas relief who asserts that the State violated its duty to disclose material evidence must demonstrate that (1) the prosecution withheld evidence, (2) the evidence was favorable to the petitioner, and (3) the evidence was material. See Pyles, 136 F.3d at 998; Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). As the Supreme Court has noted, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The state habeas court conducted an evidentiary hearing regarding Hill‘s contention that the State withheld evidence of
Hill contends that the state habeas court misrepresented and misapplied the facts brought forth at the evidentiary hearing. In particular, he argues that the state court relied on the audio tape and ignored uncontradicted evidence suggesting that the tape had been altered, and that the court further ignored evidence that indicates that Allen Crawford and Schulman were led to believe that some consideration would be given in return for Crawford‘s testimony.
The district court, after reviewing the record, concluded that, at most, three individuals had a subjective belief that there was an implied deal, but that the record did not support the conclusion that the district attorney intended to make, or actually made, a deal for leniency in exchange for the witnesses’ testimony. The district court also concluded that Hill had not presented evidence sufficient to rebut the presumption of correctness a federal court must apply to the state court‘s findings of fact, and that Hill had not shown that the state court‘s conclusions were unreasonable in light of the evidence.
We conclude that Hill has not made a substantial showing of the denial of a constitutional right. With regard to the state court‘s findings of fact, Hill‘s basic argument is that the court, after granting an evidentiary hearing, “ignored” some evidence but accepted other evidence. Much is made of Schulman‘s testimony at the evidentiary hearing suggesting that the district attorney altered the tape recording of a telephone conversation between the two. However, Hill notes that evidence that the district attorney altered the tape would go to the district attorney‘s credibility; he does not contend that the tape contained the district attorney‘s admission of the existence of a
Related to Hill‘s Giglio claim is his contention that the district court abused its discretion in denying his requests under
We find no abuse of discretion.2 Hill‘s request for a forensic expert is motivated by an attempt to gain additional evidence supporting Schulman‘s suggestion that the district attorney‘s audio tape was altered. Schulman testified at the state habeas court‘s evidentiary hearing that a complete playing of the tape (i.e., without the alleged editing) would make it clear that his statements regarding consideration to be given were true. Schulman did not testify that the district attorney stated during their phone conversation that there was a deal, and in fact stated that there was no express deal. His statements regarding consideration indicated only that when he and Allen Crawford had left a meeting with the district attorney, they were under the impression that Crawford would get some unspecified consideration for his testimony. Thus, the primary evidence that the forensic expert would be able to supply — i.e., that the tape was altered — would do nothing to make viable Hill‘s Giglio
Also related to Hill‘s Giglio claim is his request for a COA on the district court‘s denial of his motion for additional discovery pertaining to the district attorney‘s activities. We conclude that Hill has not demonstrated that the question whether the district court abused its discretion in denying this request is debatable among jurists of reason. In order to be entitled to additional discovery, Hill must show “good cause.” See Rules Governing Section 2254 Cases 6(a) (“A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.“). As we recently noted, “[g]ood cause may be found when a petition for habeas corpus relief ‘establishes a prima facie [case] for relief.‘” Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000) (quoting Harris v. Nelson, 394 U.S. 286, 289 (1969)). In addition, Hill‘s factual allegations must be specific, as opposed to merely speculative or conclusory, to justify discovery. See Murphy, 205 F.3d at 814. “Rule 6 . . . does not authorize fishing expeditions.” Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994); see also Murphy, 205 F.3d at 814.
B.
Hill‘s second and third grounds for relief deal with the sentencing phase of his trial, and in particular, the testimony of a psychiatric expert, Dr. James Grigson, regarding the probability that Hill would in the future be a danger to society. Before the state habeas court, Hill contended the State withheld the existence and the contents of the “Kinne Report,” which purportedly was in the possession of Dr. Grigson and described the conduct of individuals whom he had testified would “with
Hill charges the State with both the failure to provide him with the Kinne Report in violation of Brady v. Maryland, 373 U.S. 83 (1963), and failure to correct false and misleading testimony given by Dr. Grigson about the accuracy of his predictions in violation of Napue v. Illinois, 360 U.S. 264 (1959). We have indicated above what Hill must prove in order to establish a Brady violation. In order to show that the State failed to correct false and misleading testimony, Hill must demonstrate that (1) “‘the testimony was actually false,‘” (2) “‘the state knew it was false,‘” and (3) “‘the testimony was material.‘” Pyles, 136 F.3d at 996 (quoting Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996)).
The state habeas court did not conduct an evidentiary hearing on these issues. It found that the State had no knowledge of the Kinne Report at the time of Hill‘s trial, that the Kinne Report was “nothing more than a list of a certain number of inmates from Dallas County and a report of their conduct while in prison,” that the letter did not contain information that made Dr. Grigson‘s predictions more or less
The district court concluded that Hill‘s claims failed because he had not demonstrated that (1) Dr. Grigson‘s testimony was perjured, (2) the Kinne Report was in possession of Dr. Grigson or the prosecution, and (3) the Kinne Report was unattainable through reasonable diligence. In Hill‘s discovery motion, he stated he was requesting additional discovery in part to obtain information related to his second and third claims. That information regarded when Dr. Grigson became aware of the contents of the Kinne Report, whether he communicated the contents to members of the district attorney‘s office, and the nature of the relationship between Dr. Grigson and that office. As we noted above, the district court denied his motion.
Beyond arguing that the state court‘s findings are not deserving of the statutory presumption of correctness, Hill‘s challenge to the state court‘s action focuses on its application of law underlying its finding that Dr. Grigson was not an “arm of the state,” and its conclusion that the Kinne Report was not “impeachment” evidence.4 We begin with an assessment of Hill‘s
Hill was given an opportunity during the state habeas proceedings to provide evidence supporting any allegation he may have made that the State (as distinguished from Dr. Grigson) possessed the Kinne Report, or knew of its existence and contents, and to argue that the Report was material, i.e., that in its absence, he did not receive “a fair trial, understood as a
Hill attempted to gain evidence rebutting these findings through additional discovery. However, his request for additional discovery indicates that he had no evidence supporting knowledge on the part of the State (as distinguished from Dr. Grigson) while before the district court.6 In a previous case, we concluded that “[m]ere speculative and conclusory allegations that the [State] might have known about [the alleged impeachment material] are not . . . sufficient to entitle [a petitioner] to discovery . . . .” East v. Scott, 55 F.3d 996, 1003 (5th Cir. 1995); see also Murphy, 205 F.3d at 814. We conclude that Hill has not shown that jurists of reason would find debatable the question whether the district court abused its discretion in denying Hill‘s request for additional discovery. We must therefore decline his request for a COA on his second and third grounds for relief.
C.
The state habeas court did not conduct an evidentiary hearing on this claim. It found that the changes implemented by Geesa were “procedural in nature and do not implicate any constitutional rights,” using language from Geesa in support. See 820 S.W.2d at 163 (“The rules are not of constitutional dimension per se; rather, the rules serve to implement the constitutional requirement that a criminal conviction cannot stand except upon proof beyond a reasonable doubt.” (internal quotation marks omitted)). The state court concluded that all defendants were treated equally because in all cases, the State had to prove guilt beyond a reasonable doubt. The district court essentially came to the same conclusions.
Hill contends that the state habeas court misconstrued his claim as one challenging the sufficiency of the evidence. He asserts that instead his claim is that the Texas Court of Criminal Appeals’ Geesa decision created a classification of
We are not persuaded that the state habeas court incorrectly interpreted Hill‘s claims. At the heart of those claims is the contention that the state court‘s failure to follow its own rules regarding the analysis it would undertake in reviewing a case on appeal violated the U.S. Constitution. Even if we assume that the “reasonable alternative hypothesis” analysis was an explicit procedural protection and that the Court of Criminal Appeals did not apply that analysis to Hill‘s case, we must deny a COA on this issue.
Notably, Hill does not assert that the analysis the Texas Court of Criminal Appeals applied to his case violates the Due Process Clause. See Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994) (noting that a state‘s failure to follow its own rules does not violate the Constitution where “‘constitutional minima [have] nevertheless . . . been met‘“) (quoting Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir. 1989)). Thus, his argument focuses on the mere failure of the state court to follow the rule
The “reasonable alternative hypothesis” analysis merely provided a reviewing court with a means to assess whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. See Butler v. State, 769 S.W.2d 234, 238 n.1 (Tex. Crim. App. 1989) (“[W]e do not mean to imply an adoption of [the reasonable hypothesis theory] as the standard of review for the sufficiency of the evidence. The reasonable hypothesis theory as utilized by this Court is merely an analytical construct to facilitate the application of the [Jackson v. Virginia, 443 U.S. 307 (1979)] standard.“). Even if the Texas Court of Criminal Appeals did not apply the construct it indicated in Geesa it would to a case such as Hill‘s, and in doing so, violated “the law,” this was a violation of state law.
D.
In his final challenge, Hill contends that the district court erred in granting summary judgment without giving him an adequate opportunity for discovery and factual development of his claims. Given our disposition of his other claims, we deny a COA on this issue as well.
III. CONCLUSION
For the foregoing reasons, we DENY Hill‘s request for a COA.