In re: ROBERT GENE WILL, II,
No. 17-20604 consolidated with No. 17-70022
United States Court of Appeals for the Fifth Circuit
August 5, 2020
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:15-CV-3474
Before OWEN, Chief Judge, and WILLETT and HO, Circuit Judges.
PER CURIAM:
I
Robert Gene Will was convicted and sentenced to death for the capital murder of Deputy Barrett Hill. Will has consistently maintained his innocence and asserted that Michael Rosario, the man who fled from the police with Will the morning of the murder, committed the heinous crime.
Will sought state appellate and state habeas remedies but received no relief.1 Then Will filed his first federal habeas petition, asserting ineffective assistance of counsel and actual innocence. In 2010, the district court denied habeas relief but stayed the ineffective assistance of state habeas counsel claim, which remains pending.
After the denial of Will‘s first federal habeas petition, the Harris County District Attorney‘s Office provided information to the defense that it had not turned over previously. This new information includes a Harris County Sheriff‘s Department document (the Hit Document) revealing that after Hill‘s murder Rosario was placed in administrative separation because he “made contact . . . to visit w[ith] David Cruz,” apparently “soliciting [Cruz] to make [a] hit on [Will].” A related document revealed that Cruz was
Will‘s trial attorneys signed affidavits stating that neither the Hit Document nor Schifani Report had been disclosed to them. Before trial, the prosecutor had agreed to disclose “[a]ll exculpatory evidence pursuant to Brady v. Maryland,”2 and Will‘s counsel had subpoenaed all inmate records concerning Rosario. Will‘s habeas counsel also obtained a subpoena for Rosario‘s prison records during his first federal habeas proceedings. But, despite the trial attorneys’ diligence, neither the Hit Document nor the Schifani Report were disclosed. An attorney at the DA‘s Office acknowledged that if she had known about the Hit Document and the Schifani Report, Brady and the DA Office‘s open file policy would have obligated her to disclose the documents to Will‘s trial counsel.
Based on this newly discovered evidence—again, disclosed by the DA‘s office only after Will‘s first federal habeas petition was denied—Will filed a third state habeas petition claiming that the prosecution unconstitutionally suppressed evidence under Brady and that he was actually innocent. The Texas Court of Criminal Appeals denied habeas relief. Will then filed a second-in-time federal habeas petition in district court seeking relief based on the State‘s alleged Brady violation.
The State filed a motion for summary judgment, asserting that the district court lacked jurisdiction to consider a successive habeas action under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The district court granted the State‘s motion and transferred the second federal habeas
II
We first consider whether the district court properly transferred Will‘s habeas petition to this court. The dispositive issue is whether Will‘s petition is “second or successive” under
At the time the district court issued its transfer order, neither the Supreme Court nor the Fifth Circuit had yet decided section 2244‘s application to Brady claims. Since then, however, we have definitively spoken on the matter and determined that Brady claims raised in second-in-time
III
Given that this petition is “second or successive,” we next consider Will‘s alternative request for permission to file a successive habeas petition. Under
A prima facie showing is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.”9 “If in light of the
Will has made the requisite prima facie showing, so his motion for authorization is granted.
The State does not dispute that Will has “not presented” this claim in a prior federal habeas petition. However, it asserts that Will‘s counsel did not exercise due diligence and that the Brady claim fails to demonstrate actual innocence. We disagree with the State on both points.
A
Will made a prima facie showing that the factual predicate for his Brady claim could not have been previously discovered through due diligence.12 While a “successive petitioner urging a Brady claim may not rely solely upon the ultimate merits of the Brady claim in order to demonstrate due diligence under
Section 2244(b)(2)(B)‘s due-diligence requirement “is measured objectively, not by the subjective diligence of the petitioner.”16 As such, Will is required to show that the withheld records objectively could not have been discovered through the exercise of due diligence.17 The distinction between a subjective and objective inquiry was squarely addressed in Johnson v. Dretke. There, the State argued that Johnson could not satisfy the due diligence prong because Johnson did not demonstrate that he exercised due diligence, and he never explained how he ultimately discovered the previously unavailable documents.18 We rejected that argument, holding that “the plain text of
Such is not the case here. Objectively, Will has demonstrated that the withheld records could not have been discovered through due diligence. Here, the prosecutor “pledge[d] to [the] Court” that she would produce all Brady materials prior to trial; Deputy Strickland, who prepared the Hit Document, appeared in court after refusing to comply with a subpoena duces tecum and stated that he did not have any documents pertaining to Will‘s case; Will‘s habeas counsel had subpoenaed all inmate records concerning Rosario; an attorney in the DA‘s Office acknowledged that, between Brady and the DA‘s open file policy,22 the State would have been obligated to disclose the withheld documents prior to trial; and Will had no exigent reason to know that the Hit Document or Schifani Report existed. Accordingly, there was no reason for Will or his counsel to suspect that documents were being withheld or to do more than they did to uncover the withheld evidence.23
Trial counsel need not assume the prosecution may be withholding information in order to exercise diligence. The Supreme Court has stated
While this court does not rule on the ultimate merits of the due diligence inquiry at this stage,26 the facts show that Will made a “sufficient showing of possible merit to warrant a fuller exploration by the district court.”27
B
Will has also made a prima facie showing, by clear and convincing evidence, that no reasonable factfinder would find him guilty.28 As a reminder, a prima facie showing is “simply a sufficient showing of possible merit to warrant a fuller exploration.”29 In other words, “[i]f we determine
As for our review, we consider both the new evidence and the existing evidence in assessing the likely impact of the Brady material on reasonable jurors.34 The third prong of
It would be impossible to recreate the entire trial in a single opinion, but the below chart outlines the key pieces of evidence37:
| Evidence Supporting Guilt | Evidence Supporting Reasonable Doubt |
|---|---|
| At the scene of a reported robbery, Deputy Hill chased Will while Deputy Kelly chased Rosario in opposite directions. | Deputy Kelly lost sight of Rosario before Deputy Hill was shot. |
| When Deputy Kelly lost sight of Rosario, Rosario was running east, in the opposite direction of Deputy Hill. | Deputy Kelly testified that his original report stating that Rosario ran “east along the bayou” was based on an “incorrect belief.” |
| — — — — | Deputy Kelly reported that he had “the tall one,” meaning Will, “in custody,” suggesting Will was handcuffed or otherwise under Deputy Kelly‘s control. |
| Shortly after Deputy Kelly lost sight of Rosario, Deputy Kelly heard between 5 and 7 gunshots.38 | — — — — |
| After the last shot was fired, Deputy Kelly saw “somebody” running from the direction where Deputy | — — — — |
| Evidence Supporting Guilt | Evidence Supporting Reasonable Doubt |
|---|---|
| Hill was shot toward a parking lot. When Deputy Kelly got to the parking lot, a woman (Cassandra Simmons) told Deputy Kelly that a man stole her car at gun point. | |
| Simmons testified that a man she identified as Will opened her car door, ordered her to get out, said “I just shot police,” and put a gun to her neck. | Simmons’ testimony did not include the statement “I just shot a policeman” until thirteen months after she gave her first statement to officers, even though Ms. Simmons knew, at the time she gave her first statement, that the theft of her car was related to an investigation into the death of a police officer. |
| When Will was ultimately pulled over in Simmons’ car, the murder weapon was also found in the vehicle. | There was no evidence that Will was holding the gun at the time Deputy Hill was shot. |
| Gunshot residue was found on Will‘s left hand and on the left-hand glove that was found in Simmons’ car. | Will was shot in the left hand by the same gun that shot Deputy Hill, and the examiner testified that the residue was “almost certainly” from the gunshot wound to the hand. If Will shot himself in the left hand, he probably would have been holding the gun in his right hand, but the gun residue tests were inconclusive as to Will‘s right hand and the right glove. |
| The medical examiner testified that the wound to Deputy Hill‘s left hand would be consistent with an individual “laying on the ground getting ready to be handcuffed, taking a moment, pulling a gun out and shooting upward.” | State Forensic evidence shows that Hill was shot in the back of the head, and the medical examiner testified that the wounds would similarly be consistent with an officer handcuffing a person and another person approaching the officer from the left side and shooting the officer in the head. State Forensic evidence shows that all of the gunshot wounds to Deputy Hill were long-range, meaning the gun was more than 2 feet away from Deputy Hill with each shot. The medical examiner could not say how Deputy Hill was standing at the time he was shot, what position the shooter was when he fired the weapon, or how many shots were fired. |
| Handcuffs were found on the ground near Deputy Hill‘s body; the handcuff key was in his pocket; and spare handcuff key was found by on Deputy Hill‘s boot laces. | Deputy Dalrymple, who photographed the scene, could not recall if the handcuffs were opened or closed when he arrived at the scene. |
| Will‘s blood was found on Deputy Hill‘s right boot. | There was only a single droplet of Will‘s blood found on the toe of Deputy Hill‘s boot, and the blood could have come from Will being shot in the hand. |
| Evidence Supporting Guilt | Evidence Supporting Reasonable Doubt |
|---|---|
| Deputy Hill‘s blood was not found on Will. | |
| Officers testified that Will‘s clothes had “large white spots . . . that appeared like maybe bleached or something,” Will told officers his eyes were burning and “that it might be a chemical he had in the car” causing the burning, and Simmons testified she had bleach in the back of the car Will stole. | Officers did not notice an unusual smell on Will when they pulled him over. Will‘s blood was still extractable and testable from his clothing. The light-colored spots on Will‘s clothing were not tested for any chemicals. |
| — — — — | Witness who saw Rosario later that same day described him as “[n]ervous, in a hurry, rushing to leave.” Rosario told this witness “[n]ot to say anything to the cops about him because they could trace it back to what him and Robert [Will] have done.” |
| — — — — | Witnesses testified to seeing Rosario the day of the robbery and described him seeming “nervous and edgy” and shadow boxing alone outside. |
| Actual blood stains were not detected on Rosario‘s clothing; any “traces of blood” could have been caused by packaging Rosario‘s clothes in the same bag as clothing that did have blood on it. | Rosario‘s shirt had stains “consistent with traces of blood.” |
| — — — — | A fellow inmate testified that Rosario told him that Rosario “had no choice but to shoot the cop. It was just instinct and he ran.” |
Certainly, the record is not devoid of evidence supporting Will‘s conviction, but it reflects anything but a slam dunk. Even before the Hit Document and the Schifani Report came to light, the district court noted that there are “disturbing uncertainties,” a “total absence of eyewitness testimony or strongly probative forensic evidence,” and “considerable evidence supporting Will‘s innocence.”39 The district court‘s analysis of the
Now the new evidence. First, there‘s the Hit Document, which reveals that Rosario was placed in administrative separation for soliciting another to “make a hit” on Will. The timing of the document is important. It suggests that Rosario attempted to have Will, the only other witness to Deputy Hill‘s murder, killed prior to trial—before Will could testify against him. Though this evidence is not immune from attack, it does provide convincing evidence that Rosario—not Will—had testimony to bury.
Second, we have the Schifani Report. In this report, Deputy Schifani recounts that, while moving inmates between cells, Rosario observed a “mourning” badge cover Deputy Schifani was wearing in honor of Deputy Hill. As Deputy Schifani describes it, Rosario “pointed at [her] badge cover and sarcastically asked [her], ‘Do you know why you are wearing that?‘” When Deputy Schifani responded in the affirmative, Rosario continued, “I am part of the reason you are wearing it. Do you know who I am?” Again, Deputy Schifani responded in the affirmative. Rosario then stuck his arm out and instructed Deputy Schifani to look at his armband, pointing to the cautionary text that read “*PROTECTION*.” The report goes on to recount Rosario‘s “swagger[]” as she moved him to his separation cell and that he “appeared to take pleasure in his notoriety.” As with the Hit Document, this evidence is not a “smoking gun,” but it also does not evince the distant bystander to Deputy Hill‘s murder that the State described throughout trial. To the contrary, Rosario is confessing to an active role in the murder of Deputy Hill, undermining the State‘s theory of the case and further bolstering Will‘s unrelenting protestations that he was not the shooter. Clear and convincing evidence by any account.
Based on the probative value of the previously withheld evidence, Will has made a sufficient showing to proceed to a fuller review.43 He‘s demonstrated it is reasonably likely that, after hearing the new evidence alongside the old evidence, every reasonable juror would have some level of reasonable doubt.44 We express no view on whether Will should ultimately
* * *
Because Will made a prima facie showing that his Brady claim was not previously presented, that the evidence could not have been discovered through due diligence, and that his claim has merit, we grant Will‘s motion to file a successive habeas petition.
IV
For the foregoing reasons, we AFFIRM the district court‘s transfer order and GRANT the motion for authorization to file a successive habeas petition.
In re: ROBERT GENE WILL, II,
No. 17-20604 consolidated with No. 17-70022
United States Court of Appeals for the Fifth Circuit
August 5, 2020
Federal courts cannot interfere with state criminal convictions, including capital convictions, except under the limited circumstances recognized by Congress and the Supreme Court. Our review is limited, not because Congress and the Supreme Court disrespect constitutional rights, but because they respect “the principles of comity, finality, and federalism.” Panetti v. Quarterman, 551 U.S. 930, 945 (2007) (cleaned up). Comity and federalism, because we honor the sovereign prerogative of state judiciaries to enforce criminal law and constitutional rights—and finality, because a system of endless appeals is antithetical to the rule of law.
“Federal habeas review of state convictions . . . intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” Harrington v. Richter, 562 U.S. 86, 103 (2011). It “frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Id. So Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 to reaffirm “that state courts are the principal forum for asserting constitutional challenges to state convictions“—and that “habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.” Id. at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the judgment)).
Our reticence to interfere should be particularly acute where, as here, the defendant has been convicted, and the conviction has been repeatedly affirmed, first on direct appeal, and then again and again in multiple rounds of habeas petitions and appeals, in both state and federal court. When all that process has been afforded, when dozens of state and federal judges have
Federal law reflects this sentiment by forbidding federal courts of appeals from authorizing successive federal habeas petitions, except under extremely narrow circumstances. Among other requirements, there must be “clear and convincing evidence,” after taking any new facts “in light of the evidence as a whole,” that “but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”
So we have no choice but to deny authorization to proceed on a successive habeas petition unless “no reasonable juror would have voted to convict.” In re Raby, 925 F.3d 749, 758 (5th Cir. 2019). Not surprisingly, we have described the standard as a “strict form of innocence.” Johnson v. Dretke, 442 F.3d 901, 911 (5th Cir. 2006) (cleaned up).
This case comes nowhere close to meeting that rigorous standard. Far from meeting a “strict form of innocence,” the evidence of guilt is compelling—and certainly sufficient for a reasonable juror to convict:
- Will confessed to shooting Hill just moments after it happened. Shortly after the shooting, he pointed a gun at an innocent bystander, Cassandra Simmons, and ordered her out of her car, claiming that he had “just shot a police officer” and needed her car to flee. (Will denies that he ever confessed to Simmons. But he has offered no credible theory as to what would have motivated Simmons to lie.)
- Not long after the carjacking occurred, Will was caught in Simmons‘s stolen car, in possession of a loaded gun.
- Subsequent testing confirms that the loaded gun in Will‘s possession at the time of his arrest was indeed the gun used to kill officer Hill.
The physical evidence indicated that Will tried to conceal that he had fired the gun. According to the trial record, his clothing was covered with bleach, and he complained to the arresting officer that he had gotten bleach in his eyes. (Simmons later testified she had a bottle in bleach in her trunk at the time Will carjacked her. At the time of arrest, that bottle of bleach was found in the passenger seat.) - Despite Will‘s efforts to conceal his acts, his hands tested positive for gunshot residue. (No one has offered an innocent explanation for why Will would have taken the time to cover himself in bleach.)
- The medical examiner testified that the physical evidence supported the conclusion that Will shot Hill while in custody.
Yet Will claims that no reasonable juror would have voted to convict him, despite all of these facts? I find that unfathomable.1
What‘s more, Will‘s own experts admitted that the physical evidence implicated Will as the shooter. According to an affidavit from Will‘s trial counsel, Will‘s blood spatter expert told counsel: “[Y]ou do not want to call me as a witness in this case . . . My conclusions are that the physical evidence is consistent with your client shooting the deputy.”2
First is the report from another officer, Patricia Schifani. According to that report, Rosario bragged that he was “part of the reason” Hill was killed. But Rosario‘s “part[ial]” role in the events is entirely consistent with the State‘s theory of the case at trial: Officers found Will and Rosario running from a crime scene. Hill pursued Will, while Kelly pursued Rosario. So there is no question that Rosario played a “part“—and tellingly, only a “part“—in the events that led to Hill‘s murder.
Second is a jail report ordering that Rosario be keep separate from another inmate, Daniel Cruz. That report contained the following notation: “soliciting $ to make hit on co-def Robt. Will.” But notably, the report did not explain why Rosario might have wanted to kill Will. In particular, the report offered nothing that would connect any motive to kill Will with the murder of Hill—as opposed to any other dispute those two felons might have had with one another.
To its credit, the majority is careful to note that this is not a ruling on the merits, but only an authorization of a successive federal habeas petition. But the result should be the same. Because under AEDPA, a “court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.”
But the majority admits that neither the Schifani report nor the Cruz separation order constitutes “smoking gun” evidence of innocence. That should be fatal to Will‘s request for authorization to file a successive petition. Because there is no doubt that the evidence presented at trial was more than sufficient to permit a reasonable juror to convict—and neither the Schifani report nor the Cruz separation order alters that conclusion. Accordingly, we may not permit this successive habeas petition to proceed, consistent with Congress‘s instructions. See, e.g., In re Swearingen, 935 F.3d 415, 420 (5th Cir. 2019) (denying authorization to file a successive habeas corpus petition, noting that “it is not sufficient under § 2244(b) merely to show that evidence ‘muddies the waters‘“) (quoting In re Raby, 925 F.3d at 759).
* * *
It is often said that “death is different.” True enough. But under AEDPA, the same rules apply. I respectfully dissent.3