UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40229
JAMES REXFORD POWELL,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:98-CV-296)
_________________________________________________________________
April 8, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Primarily at issue is whether federal habeas relief should be
granted because, at the punishment phase of James Rexford Powell’s
Texas capital murder trial, evidence was admitted from his earlier
trial in Louisiana (attempted-murder), at which he had been
acquitted. Concerning his death sentence, Powell appeals the
denial of 28 U.S.C. § 2254 habeas relief, claiming admission at the
punishment phase of unreliable evidence concerning the prior
Louisiana trial (acquitted conduct) deprived him of a fair trial
and was insufficient to prove future dangerousness beyond a
reasonable doubt. He also requests a certificate of appealability
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(COA) based on claimed ineffective assistance of counsel (IAC)
during the punishment phase. COA DENIED; AFFIRMED.
I.
In 1991, Powell was convicted by a Texas state court jury of
murdering a ten-year-old girl in the course of sexually assaulting
her. Powell v. State, 898 S.W.2d 821, 824 (Tex. Crim. App. 1995).
During the punishment phase, two witnesses testified that Powell’s
reputation as a peaceful and law-abiding citizen was bad.
In addition, others testified at that phase concerning the
events underlying the Louisiana attempted-murder trial (Louisiana
witnesses), at which Powell had been acquitted (Louisiana trial).
Powell’s trial counsel’s objections, on the basis of double
jeopardy, to the Louisiana witnesses’ testimony were overruled.
The victim for the Louisiana charge testified that Powell came to
her house posing as a member of a logging crew, threatened her with
a gun, choked her, hit her in the head with a shotgun, and shot her
through the temple, causing the loss of one eye.
The jury answered affirmatively to the punishment issues.
Powell was sentenced to death. Id. On direct appeal (represented
by his appointed trial counsel), Powell claimed, inter alia, that
the admission of evidence of the prior attempted-murder charge
constituted double jeopardy. The conviction and sentence were
affirmed. See id. at 829-31. The Supreme Court of the United
States denied certiorari on 27 November 1995. Powell v. Texas, 516
U.S. 991 (1995).
2
Powell was represented by appointed counsel, David Bays, in
seeking state post-conviction relief. His initial petition
asserted, inter alia: that the trial court violated his due
process rights by admitting evidence of the attempted-murder
charge, without requiring the State to overcome the presumption of
prejudice or without finding the presumption was overcome; and also
arguably asserted that trial counsel was ineffective for failing to
call alibi witnesses for the Texas murder charge. Powell filed a
supplemental pro se petition, contending, inter alia: Bays, his
habeas counsel, would not raise IAC claims against Powell’s trial
counsel; trial counsel was ineffective; and Bays provided IAC.
Based on the trial court’s 15 September 1997 findings of facts and
conclusions of law, including its recommended denial of relief, the
Texas Court of Criminal Appeals denied relief by an unpublished 4
January 1998 order. Ex Parte James Rexford Powell, Nos. 35,341-01,
35,341-02.
With Bays as his attorney, Powell filed his federal habeas
petition in May 1998; it was the same as the state petition. Upon
Powell’s request, the district court substituted Nicholas
Trenticosta as Powell’s court-appointed counsel; and Trenticosta
filed three supplemental petitions, raising a number of claims.
In July 2000, summary judgment was granted against Powell’s
claims concerning the admission of the attempted-murder testimony
and the failure to instruct the jury on Powell’s parole eligibility
on a life sentence. In January 2001, the district court dismissed
Powell’s remaining claims concerning: IAC; the State’s failure to
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disclose material, exculpatory evidence; and the reliability of DNA
evidence introduced at trial.
The district court construed Powell’s notice of appeal as a
request for a COA and granted it with respect to one issue:
Whether the State’s introduction of
testimonial evidence at the penalty phase of
the [Texas capital murder] trial concerning an
attempted murder charge [in Louisiana] of
which petitioner had previously been acquitted
violated his rights to a fair and reliable
sentencing determination under the Fifth,
Eighth, and Fourteenth Amendments to the
United States Constitution.
(Emphasis added.)
II.
Pursuant to that COA, Powell contends: the admission of
“discredited and distorted” evidence from his Louisiana trial
denied him a fair and reliable sentencing determination; and
Apprendi v. New Jersey, 530 U.S. 466 (2000), requires proof beyond
a reasonable doubt of future dangerousness. He also requests this
court grant a COA to consider his IAC claim for the punishment
phase. Because Powell filed for federal habeas relief after the
effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA), 110 Stat. 1214 (1996), that Act applies. Lindh v. Murphy,
521 U.S. 320, 336 (1997).
A.
When a claim has been adjudicated on the merits in state
court, habeas relief is unavailable unless the state court’s
adjudication resulted in a decision: that was either “contrary to,
or involved an unreasonable application of, clearly established
4
Federal law, as determined by the Supreme Court”, 28 U.S.C. §
2254(d)(1); or that was “based on an unreasonable determination of
the facts in light of the evidence presented” in state court, 28
U.S.C. § 2254(d)(2).
A state court decision is “contrary to” clearly established
federal law “if the state court arrives at a conclusion opposite to
that reached by th[e Supreme] Court on a question of law or if the
state court decides a case differently than th[e Supreme] Court has
on a set of materially indistinguishable facts”. Williams v.
Taylor, 529 U.S. 362, 413 (2000). A state court decision involves
an “unreasonable application” of clearly established federal law
“if the state court identifies the correct governing legal
principle from th[e Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case”. Id.
Concerning, among other § 2254(d) standards, the “unreasonable
determination of the facts” prong, subpart (d)(1), the petitioner
must provide by clear and convincing evidence that the state
court’s findings of fact are erroneous. 28 U.S.C. § 2254(e)(1).
A state prisoner must give state courts an opportunity to act
on his claims before presenting them to a federal court;
accordingly, Powell was required to exhaust his remedies in Texas
state courts before any federal habeas relief can be granted. 28
U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
If no state remedies remain available to the petitioner, the
exhaustion requirement is satisfied. Coleman v. Thompson, 501 U.S.
722, 732 (1991).
5
In addition, habeas relief is not available to a state
prisoner who has procedurally defaulted his claims by not properly
providing the State with an opportunity to address them. See
O’Sullivan, 526 U.S. at 848 & 854 (Stevens, J., dissenting). If
Powell could have raised his claims in state court, failed to do
so, and is now barred from doing so by a state procedural rule, he
has procedurally defaulted on those claims. Murray v. Carrier, 477
U.S. 478, 489 (1986). To overcome the procedural bar, Powell
either must demonstrate: both cause for his default and prejudice
that would result from failing to address the claim; or that
failure to consider the claim would result in a fundamental
miscarriage of justice — in this instance, show that he is actually
innocent of capital murder. See Coleman, 501 U.S. at 750.
The district court’s findings of fact are reviewed for clear
error, and its conclusions of law are reviewed de novo. Thompson
v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). The issue presented by
the COA granted by the district court results from the summary
judgment awarded the State; for it, we review whether the record
discloses any genuine issues of material fact which would preclude
ruling in the State’s favor. See, e.g., Meanes v. Johnson, 138
F.3d 1007, 1010 (5th Cir. 1998); Turner v. Houma Mun. Fire & Police
Civ. Serv. Bd., 229 F.3d 478, 482 (5th Cir. 2000).
As previously noted in part, Powell contends: the admission of
“discredited and distorted” evidence at sentencing deprived him of
a “reliable and fair sentencing procedure”, in violation of his
Eighth and Fourteenth Amendment rights; and under Apprendi,
6
reliance on acquitted conduct (concerning the Louisiana attempted-
murder trial) was insufficient to prove future dangerousness beyond
a reasonable doubt.
1.
In his state proceedings, Powell raised the issue of the
admissibility of the acquitted conduct(asserting double jeopardy
and contending the court should have required the State to overcome
a presumption of prejudice); he also did so in district court
(asserting double jeopardy, collateral estoppel, and due process
violations). Here, for the first time, however, he asserts that
the evidence was unreliable.
a.
The district court held Powell waived the admissibility claim
by failing to brief it; but, nevertheless, ruled on the merits that
the claim would not have succeeded. In fact, Powell admits in his
brief here: “State courts did not address the constitutional
implications of using unreliable evidence”. Because Powell did not
present this issue to Texas state courts, he failed to exhaust it.
See O’Sullivan, 526 U.S. at 842. Further, Powell has waived it by
raising it for the first time in this appeal. E.g., Lackey v.
Johnson, 116 F.3d 149, 152 (5th Cir. 1997).
b.
Additionally, Powell failed at trial to object to the evidence
on the basis that it was unreliable; therefore, the claim is waived
absent his showing it comes within an exception to the procedural
default rule. See Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.
7
1999) (Texas’ contemporaneous objection rule an adequate and
independent ground to procedurally bar federal habeas review).
Powell has not attempted to do so.
c.
In addition, Powell’s claim fails on the merits. Under Texas
law, the truthfulness of testimony is a jury issue; therefore, the
purported reliability determination was not a part of the court’s
admissibility decision. See Colella v. State, 915 S.W.2d 834, 843-
44 (Tex. Crim. App. 1995). Further, on direct appeal, the Texas
Court of Criminal Appeals held extraneous offenses are relevant to
show future dangerousness and do not have to be proven beyond a
reasonable doubt. Powell, 898 S.W.2d at 830.
“[A]n acquittal in a criminal case does not preclude the
Government from relitigating an issue when it is presented in a
subsequent action governed by a lower standard of proof”. Dowling
v. United States, 493 U.S. 342, 349 (1990). We have previously
held that testimony by the victim of an alleged, but unadjudicated,
sexual assault is relevant to prove future dangerousness, even
though the defendant was acquitted of a felon-in-possession charge
in connection with the assault. Vega v. Johnson, 149 F.3d 354, 359
(5th Cir. 1998).
The Louisiana jury determined Powell was not guilty, beyond a
reasonable doubt, of attempted-murder; it did not address whether
he was a future danger to society. Consequently, the testimony at
issue, including the victim for the Louisiana charge identifying
Powell as her assailant, was relevant and properly admitted.
8
Powell has failed to show the state court decision was either
contrary to, or involved an unreasonable application of, clearly
established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Nor
has he shown that the state court decision involved an unreasonable
determination of the facts in the light of the evidence presented.
28 U.S.C. § 2254(d)(2).
2.
Citing Apprendi, 530 U.S. 466, and raising the issue for the
first time on appeal (while assuming it is pursuant to the COA
granted by the district court), Powell admits state courts never
addressed whether the evidence at issue is sufficient to support
the future dangerousness finding.
a.
This claim is unexhausted, because it was never presented to
a state court; and, in addition, it has been waived by failing to
present it to the district court. See Lackey, 116 F.3d at 152.
Moreover, it is procedurally barred because, if Powell presented
the claim now, the Texas Court of Criminal Appeals would dismiss
his successive petition as an abuse of the writ. See Emery v.
Johnson, 139 F.3d 191, 195-96 (5th Cir. 1998); Nobles v. Johnson,
127 F.3d 409, 423 (5th Cir. 1997); Fearance v. Scott, 56 F.3d 633,
642 (5th Cir. 1995); Ex Parte Barber, 879 S.W.2d 889, 891 n.1 (Tex.
Crim. App. 1994) (en banc) (plurality opinion).
b.
Even if Powell raised this claim under the correct standard,
Jackson v. Virginia, 443 U.S. 307 (1979), any error is waived in
9
Powell’s habeas proceedings because he failed on direct appeal to
challenge sufficiency of the evidence. See United States v. Frady,
456 U.S. 152, 165, 167-68 (1982); Martinez v. Johnson, 255 F.3d
229, 242 (5th Cir. 2001); Finley v. Johnson, 243 F.3d 215, 219 (5th
Cir. 2001).
Further, even if the testimony concerning the prior acquitted
conduct had been excluded, the evidence regarding the Texas murder
at issue was sufficient to support the jury’s future dangerousness
finding. See Kunkle v. State, 771 S.W.2d 435, 449 (Tex. Crim. App.
1986) (en banc). Consequently, a claim based on Jackson would
fail.
c.
Apprendi is not retroactively applicable to cases on
collateral review. In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000);
see also United States v. Sanders, 247 F.3d 139 (4th Cir. 2001).
In addition, Powell’s Apprendi claim also fails because it is
barred by Teague v. Lane, 489 U.S. 288, 303, 310, 316 (1989). This
claim does not fall within one of the exceptions to the Teague-bar.
Finally, Powell’s sentence was, obviously, not enhanced beyond
the statutory maximum penalty for capital murder, see TEX. PENAL CODE
ANN. §§ 12.31(a) & 19.03(b) (Vernon 1994); the factual question of
future dangerousness was submitted to a jury; and future
dangerousness does not have to be proved beyond a reasonable doubt,
see TEX. PENAL CODE ANN. §§ 19.02(a)(1) & 19.03(a).
Therefore, any Apprendi claim, if applicable, would fail.
10
B.
Powell requests a COA on whether trial counsel was ineffective
for failing “to mount a defense against” the acquitted conduct at
the punishment phase. To obtain a COA, Powell must make “a
substantial showing of the denial of a constitutional right”, 28
U.S.C. § 2253(c)(2), by demonstrating that reasonable jurists could
agree that the petition should have been resolved in a different
manner. Slack v. McDaniel, 529 U.S. 473, 484 (2000). No authority
need be cited for the rule that, whether a COA should issue is
viewed against the backdrop of the deferential scheme established
by § 2254, discussed in part II.A.
In order to be granted a COA for claims denied on the merits,
Powell must show “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong”. Id. (COA-merits-standard). For claims resolved
procedurally, Powell must make the same showing about the district
court’s assessment and must also show reasonable jurists would find
it debatable whether the district court was correct in its
procedural ruling. See id. (COA-procedural-standard).
In his state post-conviction proceedings, Powell’s IAC claim,
arguably presented in the petition filed by his counsel, concerned
a claimed failure to locate alibi witnesses regarding the Texas
murder. Powell’s pro se petition alleged IAC for failure: to
locate alibi witnesses for the Texas murder; to investigate; to
hire a DNA expert; to strike certain jurors; and to adequately
cross-examine the State’s experts.
11
1.
Texas does not allow “hybrid representation”. Satterwhite v.
Lynaugh, 886 F.2d 90, 93 (5th Cir. 1989). Therefore, because only
claims raised in the petition filed by his attorney were properly
before Texas state courts, see Rudd v. State, 616 S.W.2d 623, 625
(Tex. Crim. App. 1981), Powell’s pro se claims were not fairly
presented to state courts and are therefore unexhausted and
procedurally barred. Satterwhite, 886 F.2d at 92-93.
Powell has not shown the district court’s procedural ruling on
these claims was even debatably wrong, see Slack, 529 U.S. at 484,
and has never attempted (in district court or here) to make the
showing required to overcome the procedural bars to his claims. He
does not satisfy the COA-procedural-standard.
2.
a.
With respect to his above-referenced exhausted claim
concerning Texas alibi witnesses, Powell has waived that claim by
failing to brief it on appeal. His failure to defend claim is
unexhausted: Powell never raised this specific claim in state
court and would be procedurally barred by Texas’ abuse-of-writ
statute as a successive writ. TEX. CODE CRIM. PROC. art. 11.071 §
5(a). Powell has similarly failed to make any argument concerning
the district court’s procedural ruling, as required by Slack, 529
U.S. at 484. Again, he does not satisfy the COA-procedural-
standard.
12
b.
As noted, in ruling on whether to grant a COA, we do so
against the backdrop of the deferential scheme established by §
2254. Even if Powell could overcome the procedural bars, he cannot
make the necessary showings to satisfy the COA-merits-standard
concerning deficient performance and prejudice required by
Strickland v. Washington, 466 U.S. 668, 687 (1984), to succeed on
a IAC claim. Restated, he must satisfy the COA-merits-standard
concerning: whether his trial “counsel’s representation fell below
an objective standard of reasonableness”, allowing for the strong
presumption that counsel’s conduct “falls within the wide range of
reasonable professional assistance”, id. at 689-90; and, for
prejudice (an error rendering his trial fundamentally unfair or
unreliable), whether, but for his trial counsel’s deficient
performance, the jury would not have decided, pursuant to the
future dangerousness special issue, that Powell “constitute[s] a
continuing threat to society”.
(i)
Powell does not satisfy the COA-merits-standard concerning
whether trial counsel’s performance fell below an objective
standard of reasonableness. Although he did not call the witnesses
from the Louisiana trial who would have provided testimony
favorable to Powell, counsel timely objected to admission of the
Louisiana witnesses’ testimony on double jeopardy grounds and
argued the issue to the judge outside the presence of the jury;
13
counsel also vigorously cross-examined the State’s witnesses and
exposed the fact that Powell had been acquitted.
Because Powell failed in state court to raise his Strickland
claim concerning the punishment phase, there is no record regarding
trial counsel’s strategy during that phase. Instead, presented is
only Powell’s assertion that trial counsel: “did absolutely
nothing to prepare for the ... penalty phase”; “failed to obtain a
transcript of the Louisiana trial[;] and failed to investigate
independently”. The only evidence concerning counsel’s conduct
comes from the state post-conviction proceeding, in which the state
habeas judge (who had been the trial judge) found the trial court
had sufficient contact with both Powell and
his trial attorneys to be able to make
credibility determinations and factual
findings.... The Court finds that counsel
conducted a thorough investigation in this
cause and attempted to contact every potential
witness supplied by Powell. Counsel was not
able to locate every witness provided by
Powell, despite making diligent efforts to do
so.
Ex Parte James Rexford Powell, No. 3977-A, at 2 (15 Sept. 1997).
(ii)
Even if Powell could satisfy the COA-merits-standard for
whether trial counsel’s performance was deficient, Powell cannot
satisfy that standard for prejudice. Prior to hearing testimony
concerning the attempted-murder, the jury had already determined
that Powell was guilty of abducting, sexually assaulting, and
strangling a ten-year-old girl. And, after the attempted-murder
testimony, two witnesses testified that Powell had a bad reputation
as a peaceful and law-abiding citizen.
14
Consequently, Powell’s COA request can also be denied for
failure to show the denial of a constitutional right. Restated,
reasonable jurists would not find debatable or wrong the district
court’s assessment of this claim. See Strickland, 498 U.S. at 697;
Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001).
III.
For the foregoing reasons, we DENY the COA request and AFFIRM
the denial of habeas relief.
COA DENIED; JUDGMENT AFFIRMED
15