United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2002
Charles R. Fulbruge III
No. 01-40058 Clerk
DELMA BANKS, JR.,
Petitioner-Appellee-Cross-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant-Cross-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(5:96-CV-353)
_________________________________________________________________
Before HIGGINBOTHAM, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
For the capital murder conviction of Delma Banks, Jr., the
State of Texas contests the partial habeas relief for the death
sentence, the issues being: whether, in violation of Brady vs.
Maryland, 373 U.S. 83 (1963), the State withheld evidence that one
of its witnesses was a paid police informant; whether, for the
penalty phase, Banks’ trial counsel was ineffective; and whether
cumulative error is a basis for relief.
*
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this opinion should not be published and is not precedent except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.
Concerning the denial of habeas relief for his conviction,
Banks seeks a certificate of appealability (COA), claiming: two
other Brady violations; ineffective-assistance at the guilt phase;
violation of Swain v. Alabama, 380 U.S. 202 (1965) (prosecutors’
purposeful, systematic, discriminatory exclusion of venire
members); and insufficient evidence.
COA and HABEAS RELIEF DENIED; therefore, REVERSED and
RENDERED.
I.
The murder at issue occurred 22 years ago. Court proceedings
since then have included the direct appeal, three state habeas
petitions with evidentiary hearings, and an extensive evidentiary
hearing for the federal petition at issue.
A.
On Monday morning, 15 April 1980, Richard Whitehead was found
dead in a park near Nash, Texas, in Bowie County. See Banks v.
State, 643 S.W.2d 129 (Tex. Crim. App. 1982), cert. denied, 464
U.S. 904 (1983). (Nash is near Texarkana.) He had been shot twice
in the head and once in the upper back. Fisher, who lived near the
park, reported being awakened by two gunshots the preceding
Saturday, 12 April, at approximately 4:00 a.m.. And, Hicks and
Bungardt, two female acquaintances of the victim, told
investigators he was last seen alive the preceding Friday evening,
11 April, with a black male, whom they later identified as Banks.
2
As a result, Bowie County Deputy Sheriff Huff, the lead
investigator, contacted police informant Farr and told him he would
pay Farr $200 if he could obtain Banks’ gun. On 23 April, eight
days after the victim was found, Farr, Banks, and Marcus Jefferson
drove to Dallas to obtain a gun.
Bowie and Dallas County authorities monitored the trip and
observed Farr’s automobile, driven by Banks, stop at a south Dallas
house; Banks go to the door and soon return; and the automobile
drive away. Id. Officers stopped the automobile and seized a .22
caliber pistol; it was not the murder weapon.
Banks was arrested. Farr and Jefferson were detained but
released the next morning.
In addition, that next morning, Officers returned to the south
Dallas house and interviewed an occupant, Cook, who provided the
following in a statement (April 1980 statement): Banks stayed with
him the weekend of 12 April (weekend of the murder); Banks was
driving an automobile matching the description of the victim’s;
during the weekend, Banks admitted to Cook he had killed a “white
boy”; prior to Banks’ returning to Texarkana after that 12 April
weekend, he left the automobile and a .25 caliber pistol with Cook
to discard; and Cook abandoned the automobile in west Dallas and
sold the pistol to a neighbor.
3
Deputy Huff seized the pistol from the neighbor and submitted
it for forensic testing. The state forensics lab reported it was
the murder weapon.
B.
At a 21 May 1980 examining trial, Deputy Huff summarized the
State’s case and recounted the events leading to Banks’ arrest.
The Deputy did not disclose, however, that payments were made to
Farr. He did disclose that Hicks and Bungardt reported the
victim’s automobile was having alternator problems (discussed
infra).
The following day, Banks was indicted for capital murder.
C.
Prior to trial that Fall, the Bowie County District Attorney’s
office advised Cooksey, Banks’ attorney, there would be no need to
litigate discovery issues: “We will, without the necessity of
motions[,] provide you with all discovery to which you are
entitled”. That August, Cooksey filed several standard pretrial
motions, including for discovery; he did not seek a pre-trial
hearing.
The first day of jury selection, Cooksey reported to the trial
judge that he had not seen the State’s witness list. (It had been
provided to him the previous week.) Nor did Cooksey object when,
in selecting the jury, the prosecution peremptorily struck the four
qualified black potential jurors. After jury selection, prior to
4
further proceedings, Cooksey complained the State had not provided
a list of the prior convictions of the State’s witnesses.
Hicks and Bungardt testified that Banks was with the victim on
Friday, 11 April, and that the victim’s automobile required a
battery-jump in order to start.
Fisher testified he heard the two gunshots at approximately
4:00 a.m. on Saturday morning, 12 April.
Farr testified: he accompanied Banks to Dallas to secure a
pistol; they stopped at Cook’s; and Banks reported the .22 caliber
pistol he secured from Cook was not his, because his pistol was “in
west Dallas”. Farr admitted using illegal drugs, but denied being
a paid informant and speaking with any police officers.
Cook testified: Banks arrived at approximately 8:30 a.m. on
12 April in a green Mustang and stayed with him for two days; Banks
admitted to killing a white man in Texarkana; at Banks’ request,
Cook sold a pistol Banks had left with him and abandoned Banks’
car.
Cook’s sister testified she met Banks when he arrived with
Cook in a green Mustang.
Cook’s neighbor confirmed he purchased a .25 caliber pistol
(later identified as the murder weapon) and other items from Cook
approximately one week before authorities seized the pistol.
Dr. DiMaio, the State’s medical examiner, testified the victim
5
died from three gunshot wounds but did not testify as to the time
of death.
Firearms examiner Jones testified the bullets recovered from
the victim and the crime scene had been fired from the pistol
retrieved from Cook’s neighbor.
Banks did not present any evidence. The jury found him guilty
of capital murder. Id. at 132.
At the penalty phase, the State presented two witnesses: Farr
and Vetrano Jefferson. Vetrano Jefferson was the brother of Banks’
common-law wife and the older brother of Marcus Jefferson (who had
accompanied Banks and Farr to Dallas eight days after the victim
was found).
Vetrano Jefferson testified that, one week before the victim’s
death, Banks struck him (Vetrano Jefferson) with a pistol and
threatened to kill him.
Farr testified he, Banks, and Marcus Jefferson drove to Dallas
so that Banks could reclaim his pistol to commit armed robberies
and take care of any trouble that might arise during one.
As part of Banks’ evidence, two witnesses testified in order
to discredit Farr: Kelley testified he recently drove Farr to
several doctors’ offices to fill false prescriptions; and, a former
Arkansas police officer testified Farr served as a paid informant
in that State and was known to be unreliable.
6
Banks’ parents and several acquaintances testified that Banks
was a respectful, churchgoing young man.
And, Banks testified. Among other things, he stated it was
his idea to obtain a gun so that Farr could commit an armed
robbery. And, he admitted striking Vetrano Jefferson with a gun
and threatening to kill him.
In October 1980, after the jury found the requisite special
issues, the judge imposed the death penalty.
D.
In 1982, on direct appeal, the Texas Court of Criminal Appeals
affirmed the conviction and sentence. Banks v. State, 643 S.W.2d
129. The Supreme Court of the United States denied certiorari in
1983. Banks v. Texas, 464 U.S. 904.
E.
Banks filed three state habeas petitions.
1.
Banks’ first raised, inter alia, a jury discrimination claim
based on Swain, 380 U.S. 202, and a sufficiency of the evidence
claim with regard to the second special sentencing issue — future
dangerousness. After an evidentiary hearing, at which Banks
offered no live testimony, the trial court recommended denial on
the merits; the Court of Criminal Appeals accepted this
recommendation. Ex parte Banks, No. 13,568-01 (Tex. Crim. App.
1984) (unpublished).
7
2.
Banks’ second petition, inter alia, again raised the
sufficiency claim. After another evidentiary hearing, the petition
was again rejected on the merits. Ex parte Banks, 769 S.W.2d 539,
540 (Tex. Crim. App. 1989).
3.
Banks’ third petition presented, inter alia, each claim raised
in this federal proceeding: ineffective-assistance; systematic
exclusion of blacks; withholding material impeachment evidence on
Cook and Farr; and insufficient evidence to support future
dangerousness. The trial court did not conduct an evidentiary
hearing and recommended denial.
The Court of Criminal Appeals remanded for an evidentiary
hearing on the Swain and juror bias claims (the latter is not at
issue). Ex parte Banks, No. 13,568-03 (Tex. Crim. App. 3 Mar.
1993) (unpublished). Following the hearing, and concerning the
Swain claim, the trial court concluded: the evidence established
a prima facie case of discrimination; it was rebutted, however, by
the State’s non-discriminatory reasons for the strikes. The Court
of Criminal Appeals denied relief, based on the trial court’s
findings and conclusions. Ex parte Banks, No. 13,568-03 (Tex.
Crim. App. 11 Jan. 1996) (unpublished).
8
F.
Banks filed his federal petition after contacting Farr and
Cook. Farr revealed he had been a paid informant. And, Cook
stated: significant portions of his testimony were false and given
under pressure from authorities; Deputy Huff and others assured him
that, in exchange for favorable testimony, a pending charge in
Dallas County would be dismissed; and his testimony had been
rehearsed on several occasions.
1.
On the basis of several affidavits, the magistrate judge
granted Banks limited discovery and an evidentiary hearing on his
ineffective-assistance, Brady, and Swain claims.
As of the hearing, Farr resided in California and feared
returning to Texarkana because of his poor health and prior
informant activities. Therefore, Banks submitted Farr’s affidavit.
The State did not seek to depose Farr and limited its objection
pursuant to Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) (if failed to
factually develop claim during state court proceedings, petitioner
must establish cause and prejudice to be entitled to federal
evidentiary hearing).
Farr’s affidavit stated: he was paid $200 by Deputy Huff “to
set Delma [Banks] up”; he convinced Banks that he (Farr) wanted a
gun to rob a pharmacy for drugs; and it was Farr’s idea to drive to
Dallas to retrieve Banks’ gun. At the federal hearing, Deputy Huff
9
confirmed that Farr had been a paid informant. And, Marcus
Jefferson, who accompanied Banks and Farr to Dallas, testified Farr
initiated conversations with Banks about securing a gun so that
Farr could commit robberies.
Pursuant to the discovery order, the Bowie County District
Attorney’s office disclosed an undated, 74-page transcript of
Cook’s September 1980 pretrial interview, conducted by Bowie County
law enforcement officers and prosecutors. (This transcript is the
subject of a Brady claim COA request, discussed in part II.B.1.a.)
At the evidentiary hearing, Assistant District Attorney (ADA)
Elliot confirmed: at trial, his co-counsel, Raffaelli (the
District Attorney during Banks’ trial, who died prior to the
evidentiary hearing), was in possession of the transcript and
several pages of handwritten notes; prior to trial, they had not
been disclosed to Banks. Only Cook’s April 1980 statement,
provided approximately two weeks after the murder, had been
disclosed at the conclusion of Cook’s trial testimony on re-direct.
Concerning the alleged deal for Cook’s testimony (the subject
of a Brady claim COA request, discussed in part II.B.1.b.), ADA
Elliot testified: he did not arrange one, but it was possible
Raffaelli did so without his knowledge; Deputy Huff and another
investigator had contact with Dallas authorities that he (Elliot)
was not privy to, but Deputy Huff had no authority to make a deal;
and, following Banks’ trial, he (Elliot) accompanied Deputy Huff
10
and Cook to Dallas and told an ADA there that, in a capital murder
case, Cook gave helpful testimony for the prosecution. Deputy Huff
similarly testified that, although he discussed the pending arson
charges with Cook, he did not tell Cook that, in exchange for
favorable testimony, they would be dismissed.
Cook’s evidentiary hearing testimony sharply contradicted the
State’s. Cook claimed: when authorities arrived at his home on 24
April 1980, Deputy Huff threatened to charge him with being an
accessory to murder if he failed to cooperate; he gave a statement
(April 1980 statement) that was, in many respects, incomplete and
untruthful; he was fearful of Deputy Huff throughout the
investigation and trial and continued to fear him; a month prior to
Banks’ trial, habitual offender papers were filed in the pending
case (arson) which would have significantly lengthened his (Cook’s)
maximum sentence; he understood Deputy Huff’s remarks concerning
cooperation to mean he needed to testify consistent with his April
1980 statement; while he was waiting to testify, Deputy Huff
transported him to his wife’s hotel to have conjugal visits (Cook’s
former wife gave consistent testimony); portions of his trial
testimony were untruthful; and the day Deputy Huff and Elliot
returned him to Dallas, the arson charges were dismissed.
Cook’s sister, Carol Cook, testified: Deputy Huff threatened
to “lock [her] brother up for the rest of his life” if she refused
to testify at Banks’ trial; Deputy Huff directed her to change her
11
testimony concerning the automobile she saw Banks driving during
the 12 April weekend; although she was sure the automobile was red,
Deputy Huff insisted it was green; and although she initially told
the jury the automobile was red, she corrected herself and said it
was green.
Regarding ineffective-assistance, witnesses testified
concerning the time-of-death evidence, Cooksey’s trial
preparedness, and the defense function in capital trials.
Concerning time of death, although Fisher’s trial testimony
was that he heard what sounded like gunshots at 4:00 a.m. on
Saturday, 12 April, his federal testimony was: he knew nothing
about guns; the noises could have been firecrackers, car backfires,
or rifle shots; and the noises could have occurred between 3:00 and
5:00 a.m. Dr. Riddick, a medical examiner for the State of
Alabama, testified that several factors led him to conclude the
victim died late on the evening of 12 April (Saturday) or early
Sunday morning, 13 April. He conceded, however, that, consistent
with the State’s theory, including the effect of the weather, it
was possible the victim was killed around 4:00 a.m. on Saturday, 12
April.
Concerning assistance of counsel, Banks’ parents testified
that, prior to trial, Cooksey met with them only briefly, with
meetings lasting “no longer than 10 to 15 minutes”. Mrs. Banks
testified Cooksey asked her to testify Banks was at home with her
12
on Friday evening, 11 April; she refused. Although both parents
had testified during the penalty phase, Cooksey had not spoken with
them about the information he wanted communicated to the jury.
Kelley, who testified concerning Farr’s bogus prescription
scheme: was unaware that Cooksey planned to call him as a witness;
had several drinks earlier on the morning of his trial testimony;
and “was drunk” when he testified.
Vetrano Jefferson, who testified at trial for the State,
testified: his fight with Banks he described at trial began
because he (Jefferson) was drunk and was threatening his sister
(Banks’ common law wife); Banks defended her; Jefferson started the
fight; and he never spoke with Banks’ counsel, but would have been
willing to do so.
Dr. Cunningham, an expert in forensic psychology, testified he
conducted a thorough psychological evaluation of Banks (including
nine hours with Banks, interviews with his family, and review of
the trial transcript and his school, medical, and prison records)
and concluded that, at the time of trial, there was little
likelihood of additional acts of violence from Banks.
Goldstein testified Cooksey was ineffective in: pretrial
investigation, cross-examination of State’s witnesses, presentation
of penalty phase witnesses, and failing to utilize a mental health
expert.
In rebuttal, the State called Waters, hired by Cooksey as an
investigator for Banks’ trial. Waters testified he: interviewed
13
a number of witnesses, but could not recall their names; visited
and photographed the crime scene; and did not believe Banks’ claim
that he hitchhiked to Dallas, because, for example, Banks could not
describe the vehicle he rode in.
2.
The magistrate judge recommended habeas relief be granted in
part (sentence) and denied in part (conviction). The recommended
relief was based on the State’s failure to disclose Farr’s paid
informant status and ineffective-assistance at the penalty phase.
Banks v. Johnson, No. 5:96-CV-353 (E.D. Tex. 11 May 2000)
(unpublished) (Banks-USDC).
3.
With minor modifications, the district court accepted the
recommendations. Banks v. Johnson, No. 5:96-CV-353 (E.D. Tex. 18
Aug. 2000) (unpublished) (Banks-USDC II). The district court later
denied Banks’ Rule 59 motion to modify the judgment. It also
denied Banks a COA.
II.
Banks’ third state habeas petition was denied approximately 15
years after his conviction. Because his federal petition was filed
shortly before the 1996 effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA), it is not applicable to the
claims for which habeas relief was granted. See Lindh v. Murphy,
14
521 U.S. 320, 336-37 (1997). But, as discussed in part II. B., it
is applicable to Banks’ COA requests.
A.
Relief was granted on two bases: (1) information being
withheld in violation of Brady, 373 U.S. 83; and (2) ineffective-
assistance at the penalty phase.
Under pre-AEDPA law, we “generally accord a presumption of
correctness to any state court factual findings”. Mann v. Scott,
41 F.3d 968, 973 (5th Cir. 1994), cert. denied, 514 U.S. 1117
(1995). In addition, we “review the district court’s findings of
fact for clear error, but decide issues of law de novo”. Id.
1.
Relief was granted under Brady because the State failed to
disclose Farr, a penalty phase witness, was a paid police
informant. Banks-USDC, at 44. This claim was not raised in either
the first or second state petitions. In his third, Banks claimed
the State violated Brady by failing to disclose “information that
would have revealed ... Farr as a police informant and ... Banks’
arrest as a ‘set-up’”. The trial court’s denial recommendation
did not specifically address this Brady claim; and the Court of
Criminal Appeals, after remanding for an evidentiary hearing solely
on Banks’ unrelated Swain and juror bias claims, accepted the trial
court’s recommendation and denied relief. Ex parte Banks, No.
13,568-03 (Tex. Crim. App. 11 Jan. 1996) (unpublished).
15
To establish a Brady claim, Banks must prove: (1) the
“evidence was suppressed”; (2) it “was favorable to the accused”;
and (3) it “was material either to guilt or punishment”. United
States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991). The
district court ruled: the substance of Farr’s penalty-phase
testimony was that he, Banks, and Marcus Jefferson traveled to
Dallas to retrieve Banks’ gun so that Banks could commit armed
robberies; and the purpose of that testimony was to demonstrate
future dangerousness. Banks-USDC, at 43-44.
In holding Brady had been violated, the district court relied
on Deputy Huff’s testimony at the federal hearing that Farr was a
paid informant. Id. at 43. Also in the record are two affidavits
in which Farr admits being a paid informant.
The State maintains: that the affidavits and Farr’s testimony
are unexhausted, and the federal hearing at which Deputy Huff
testified was improperly granted; and that, alternatively, the
Brady claim fails on the merits.
a.
The procedural issues are: whether the federal hearing should
not have been held; and whether the evidence relied on by the
district court is unexhausted.
16
i.
The State contends Banks was not entitled to the hearing in
the light of his failure, during the state proceedings, to develop
the factual bases of his Brady claim. A petitioner is “entitled to
[a federal] evidentiary hearing if he can show cause for his
failure to develop the facts in state-court proceedings and actual
prejudice resulting from that failure”. Keeney, 504 U.S. at 11
(emphasis added). An exception to this cause-and-prejudice
requirement exists if a petitioner “can show that a fundamental
miscarriage of justice would result from failure to hold a federal
evidentiary hearing”. Id. at 12.
With regard to Banks’ Brady claim, however, the order
establishing the issues to be considered at the federal hearing
never mentions either this cause-and-prejudice requirement or this
miscarriage-of-justice exception. Nevertheless, the district
court ordered the hearing based on Banks’ offering proof that “he
could not have had the information regarding this issue prior to
any of his three state evidentiary hearings” because he asked the
state court for aid in developing Cook’s testimony, and the “state
court never acted on [Banks’] request for assistance”. In
addition, the district court ruled Banks had “demonstrated ... he
did not have a full and fair opportunity to present his evidence on
[the Brady] issue to the state court, primarily because [Farr and
17
Deputy Huff] did not come forward until after the state court
evidentiary hearings”. (Emphasis added.)
Concerning the witnesses’ not coming forward, the State
contends there was no evidence this was due to its interference.
See Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (“a
showing of ‘interference by officials’ is sufficient to show cause
for a procedural default”). The State next contends that the state
courts did not prevent Banks from developing the Brady claim.
Instead, according to the State, there is nothing in the record
that demonstrates Banks was prevented from exploring this issue
during the state habeas proceedings. As for the district court’s
observation that the state courts did not respond to Banks’ request
for investigative-assistance, the State contends such requests were
limited to assistance to investigate whether there had been a
failure to disclose Brady information regarding Cook, not Farr.
Banks does not specifically address the challenge to holding
a federal evidentiary hearing. Instead, he responds to the
exhaustion contention, discussed infra.
As for no evidence being presented at the state evidentiary
hearing because the state court never acted on Banks’ request for
assistance, Banks’ request was limited, as acknowledged by the
district court, to “investigative assistance regarding Cook’s
testimony”, not Farr’s. (Emphasis added.) Banks had stated he
“need[ed] the aid of an investigator in order to develop fully his
18
allegation that the Bowie County District Attorney’s office had not
disclosed that a favorable deal had been arranged for ... Cook, the
State’s chief witness, in exchange for his testimony....”
(Emphasis added.) (Again, this alleged deal is the subject of a
Brady claim COA request, discussed in part II.B.1.b.)
Obviously, the state court’s refusal concerning Cook is of no
relevance to the Brady claim regarding Farr. Accordingly, not
being provided investigative assistance is not cause for not
developing this Brady issue in state court, in the light of Banks’
never asking for assistance with regard to Farr.
As for witnesses not coming forward until after the state
court evidentiary hearing, Banks has not demonstrated that he
attempted, even if unsuccessfully, to explore this issue, or any
other issue, with those witnesses. Farr states in one of his
affidavits: “I would not have revealed the information in this
declaration to [Banks’ representatives], or to anyone else, before
I elected to do so in the fall of 1996”. (Emphasis added; Banks’
third — and final — state habeas request was denied much earlier,
in January 1996.) Even accepting Farr’s statement as true, it does
not justify Banks’ not attempting to speak with Farr prior to the
conclusion of the (three) State habeas proceedings.
Accordingly, Banks has not shown cause for not attempting in
state court to factually develop this Brady issue. In addition,
neither the district court nor Banks in this appeal attempts to
19
demonstrate the applicability of the fundamental-miscarriage-of-
justice exception. Accordingly, the district court erroneously
granted an evidentiary hearing regarding this Brady issue.
As a result, habeas relief cannot be granted based on the
evidence presented at the federal hearing: Deputy Huff’s testimony
that Banks was a paid informant. Banks-USDC, at 42-44. The
district court’s holding, however, is predicated upon that
testimony. Without it, the Brady claim must fail. It is true
that, in Farr’s affidavits presented to the district court, he
admits his paid informant status. But, for the reasons stated
infra, that evidence is not exhausted and, as a result, cannot
establish a Brady claim.
ii.
Assuming arguendo the evidentiary hearing was granted properly
for this Brady claim, next at issue is the State’s contention that
Deputy Huff’s testimony, as well as Farr’s above-referenced
affidavits, were not exhausted. As a prerequisite to federal
habeas relief, a petitioner must exhaust “the remedies available in
the courts of the State”. 28 U.S.C. § 2254(b) (1994). Such
remedies are not exhausted where the petitioner “presents material
additional evidentiary support to the federal court that was not
presented to the state court”. Graham v. Johnson, 94 F.3d 958, 968
(5th Cir. 1996). “[N]ew factual allegations in support of a
previously asserted legal theory” must also be exhausted, even
20
though such “factual allegations came into existence after state
habeas relief had been denied”. Joyner v. King, 786 F.2d 1317,
1320 (5th Cir.), cert. denied, 479 U.S. 1010 (1986). “There is,
however, a ‘cause and prejudice’ exception to the bar for failure
to exhaust.” Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir.),
cert. denied, 122 S. Ct. 329 (2001).
Again, Banks’ third (final) state petition was denied in
January 1996. Neither of Farr’s affidavits — dated 4 November 1996
and 21 May 1999 — was presented in state court. A district court
should not consider an affidavit that was not offered to the state
court where no cause for failure to exhaust has been shown. Woods
v. Johnson, 75 F.3d 1017, 1029 n.16 (5th Cir.), cert. denied, 519
U.S. 854 (1996); see Hogue v. Johnson, 131 F.3d 466, 505 (5th Cir.
1997) (holding federal court should not consider affidavits not
presented to state court), cert. denied, 523 U.S. 1014 (1998).
As for cause, in his brief here, Banks contends:
[Banks] pleaded that Farr was an informant in
his third state habeas proceeding. Candor
required the state to respond truthfully and
admit his true status. Instead, [the
attorney] who was then representing the
state’s interest, ignored the claim and made
no response. It was only after this matter
was filed in federal court that ... Banks
located and gained access to ... Farr, who for
the first time revealed his informant status
in this matter.
(Emphasis added.) In this light, it is clear that, at the time of
Banks’ third state habeas proceeding, he believed Farr had been a
21
paid informant. Nevertheless, Banks offers no reason why he did
not attempt to locate Farr and ascertain his true status. If Banks
had sought Farr’s testimony, and Farr had been uncooperative, then,
arguably, Banks would have shown cause. Instead, because it
appears he made no such effort, the “cause” for Banks’ failure to
obtain Farr’s information was Banks’ lack of diligence.
Along this line, Banks maintains the State should have
responded to his state habeas Farr-was-an-informant contention.
But, when the State did not respond, this should have prompted him
to further investigate this claim, i.e., speak with Farr, rather
than do nothing.
Concerning Deputy Huff’s federal testimony that Farr was a
paid informant, and as for cause, Banks contends: “[I]t was only
because of the [federal] ... hearing that [he] had the opportunity
to put [the State’s attorney] and [Deputy] Huff under oath and
directly inquire about ... Farr’s true status”. This does not
demonstrate cause. As of his third state petition, Banks believed
Farr had been an informant. Accordingly, Banks should have at
least attempted to interview the investigating officers, such as
Deputy Huff, to ascertain Farr’s status.
Therefore, neither Farr’s affidavits nor Deputy Huff’s
testimony are exhausted, and Banks has not shown cause for his
failure to do so. Federalism concerns demand that state courts be
given an opportunity to consider a claim on the same evidence as do
22
federal courts. Because this evidence is procedurally barred, and
is the only evidence Banks offers in support of this Brady claim,
it fails.
b.
Assuming both that the federal hearing concerning this claim
was proper and that the evidence was exhausted, at issue are the
merits of the Brady claim. Again, Banks must satisfy each of
Brady’s three prongs: the State withheld evidence; it was
favorable to him; and it was material. See Ellender, 947 F.2d at
756.
i.
The State maintains Banks has not presented evidence that it
withheld Farr’s status. Noticeably absent from the record,
according to the State, is any statement from Banks’ trial counsel
(Cooksey) that he did not know Farr’s status. The State raised
this issue in district court, asserting in its summary judgment
motion: “defense counsel [Cooksey] was obviously aware of evidence
that Farr was a police informant”; and “Banks has failed to allege
or prove exactly what evidence the prosecution purportedly knew
about that the defense did not”. The district court disagreed:
“At no time did the State correct Farr’s erroneous [trial]
testimony [that he was not paid for his testimony] or announce
Farr’s paid informant status”. Banks-USDC, at 44.
23
Banks responds that the evidence does demonstrate Farr’s
informant identity was never provided to him. According to Banks:
“Although the Brady doctrine required the trial prosecutors to
formally advise counsel of Farr’s status, there is no pleading or
oral reference to Farr’s status as an informant anywhere in the
trial record”.
Banks also asserts that, at the pre-indictment examining
trial, Deputy Huff refused to disclose the informant’s identity.
And, at trial, when Banks’ counsel asked Farr whether he was paid
for his testimony, Farr denied he was. According to Banks, given
his counsel’s strategy to discredit Farr, had he known he was a
paid informant, he surely would have challenged Farr’s response.
Finally, Banks points to Deputy Huff’s inquiry to Banks’ counsel at
the federal hearing on whether it was permissible to identify Farr
as an informant:
Q. In this particular case, you received the
aid from an informant, did you not?
A Yes, sir.
Q And who was that?
A His name is Robert Farr. I don’t know if
it’s procedurally regular –
Q We’ve inquired. Mr. Farr has no problem
with revealing his identity.
A Robert Farr.
24
The State responds that it had no duty to disclose Farr’s
informant status or that he was paid; and that Banks was not
diligent in seeking disclosure.
In the light of Banks’ failure to exhaust the evidence
supporting this Brady claim, as well as our holding, infra, that
Farr’s status was not material to the jury’s penalty phase finding,
we need not decide whether the State had a duty to disclose Farr
was a paid informant and, if so, whether it did so. Instead, we
will assume this information was withheld.
ii.
At issue, therefore, is whether the withheld evidence was
favorable to Banks. In the report and recommendation, the
magistrate judge stated that Farr testified that he, Banks, and
Marcus Jefferson “traveled to Dallas to retrieve [Banks’] gun so
that Banks could commit several armed robberies”. Banks-USDC, at
43-44 (emphasis added). The State notes Farr instead testified:
“We were going to pull some robberies on the way back [to
Texarkana]”. (Emphasis added.)
Farr states in his affidavits that he never intended to commit
an armed robbery; that he only told Banks that so that he would
retrieve Banks’ gun. According to the State, the jury
was presented with a scenario in which two
people were acting together for an illegal
purpose. It would hardly be favorable to
Banks’ case for the jury to be told that Farr
only made up the story about the robbery so
that Banks would ... get his gun. This set of
25
facts would have had only one of the two men –
Banks – believing the gun would be used in an
armed robbery.
Banks does not respond to this contention, focusing instead on
the third Brady prong — materiality. In any event, the State’s
contention misses the mark. The withheld evidence was Farr’s paid
informant status. Such information, obviously, has a bearing on
his credibility; Farr’s being a paid informant would certainly be
favorable to Banks in attacking Farr’s testimony. Accordingly,
Banks has satisfied the second Brady prong.
iii.
For the final Brady prong, evidence 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. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome.
Ellender, 947 F.2d at 756 (emphasis added; internal quotation marks
omitted). The State contends Farr’s status is not material because
his testimony was corroborated by other witnesses and the
information’s impeachment value would have been cumulative.
During the penalty phase, Farr testified that he, Banks, and
Marcus Jefferson traveled to Dallas to “pick up a pistol”. When
they arrived at Cook’s house, Banks went to the front porch and
returned with a gun that was not his, stating Cook had given his
(Banks’) gun to a woman in west Dallas. As stated, concerning
26
their intent, Farr testified: “We were going to pull some robberies
on the way back [to Texarkana]”.
According to the State, Marcus Jefferson’s guilt phase
testimony was consistent with Farr’s. Jefferson testified: when
he, Farr and Banks reached Dallas, they drove around looking for a
house; when they reached it, Banks went to the front porch,
returned with a pistol, and stated that the person who had given
him that pistol, Cook, did not have his (Banks’) gun because he had
given it to someone else.
The State also relies on Cook’s trial testimony: while Banks
was staying in his house one day after the murder, he (Cook) took
Banks’ gun and sold it; Banks later came to his house and told him
he needed a pistol; and Banks asked him where his (Banks’) was.
The State also contends that Banks’ own trial testimony
corroborates many of Farr’s statements. During the penalty phase,
Banks testified: Farr planned to commit “some robberies”; and it
was his (Banks’) idea “to go get the gun”. On cross-examination,
Banks testified that, when he arrived at Cook’s house, Cook did not
have Banks’ gun and gave him (Banks) another. Ultimately, Banks
admitted he was “going to supply [Farr] the means and possible
death weapon in an armed robbery”.
In its second contention concerning materiality, the State
maintains that the impeachment value of Farr’s paid informant
status is low because of other impeachment evidence used against
27
him. During Farr’s penalty phase cross-examination, he denied:
(1) going to Arkansas the previous week to obtain false
prescriptions and getting into an altercation with a doctor who
refused to provide him with one; (2) being a “snitch” for Owens, an
Arkansas narcotics officer; and (3) that his wife shot him.
During the penalty phase, however, defense witness Kelly
contradicted Farr’s denial of an altercation with a doctor in
Arkansas. According to Kelly, when he went into the hospital where
Farr was located, the doctor and Farr were “fussing” and the doctor
told Farr “to get his ass out of there”. Kelly also testified
that, after unsuccessfully attempting to obtain prescription drugs
from other hospitals in Arkansas, Farr stated “he was going to get
what he was after [prescription drugs] before we got back to
Texarkana”.
The above-referenced Arkansas officer, Owens, testified for
the defense at the penalty phase and contradicted Farr’s assertion
that he never was an informant for him and that he had not been
shot by his (Farr’s) wife. Owens testified he had used Farr as an
informant once or twice and that, because his “information was not
correct”, he no longer used him.
Banks does not respond to these assertions by the State.
Instead, Banks’ argument is two-fold. First, he contends:
As the state had little other evidence to
demonstrate that [he] would be a danger in the
future, the result at the penalty phase likely
would have been different had the jury known
that Farr had every reason to testify as he
28
did to protect his business relationship with
law enforcement and to avoid prosecution.
Second, Banks maintains that, because the prosecution failed
to correct Farr’s untruthful testimony during the guilt phase, the
standard for materiality is less onerous. The referenced testimony
occurred when, on questioning by Banks’ attorney, Farr denied “ever
tak[ing] any money from some police officers”.
For this second contention, Banks relies upon Kirkpatrick v.
Whitley, 992 F.2d 491, 497 (5th Cir. 1993), which held that, “if
the prosecutor has knowingly used perjured testimony or false
evidence, the standard is considerably less onerous: the
conviction ‘must be set aside if there is any reasonable likelihood
that the false testimony could have affected the jury’s verdict’”.
(Quoting United States v. Bagley, 478 U.S. 667, 679 n.9 (1985)
(citing Napue v. Illinois, 360 U.S. 264, 269 (1959) (Fourteenth
Amendment violation if “the State, although not soliciting false
evidence, allows it to go uncorrected when it appears”))); see also
Giglio v. United States, 405 U.S. 150, 153-55 (applying Napue
standard where the Government did not correct a witness’ false
testimony concerning an agreement not to prosecute in exchange for
his testimony).
Kirkpatrick, however, does not hold that the Brady materiality
standard is lessened because of false testimony. Instead, Kirkland
delineates the Brady materiality standard from that for a
29
Giglio/Napue claim. 992 F.2d at 497 (“We observe that different
standards of materiality apply to Brady claims and claims that the
prosecution has knowingly used perjured testimony or false
evidence.”). In short, Kirkpatrick makes clear that a Brady claim
and a Giglio/Napue claim are separate and distinct. E.g.,
Barrientes v. Johnson, 221 F.3d 741, 752-53 (5th Cir. 2000)
(analyzing Brady claim separately from Giglio claim), cert.
dismissed, 531 U.S. 1134 (2001). Accordingly, whether the
prosecution failed to correct Farr’s testimony is irrelevant to
Banks’ Brady claim and its materiality standard.
To the extent Banks attempts to establish a Giglio/Napue
claim, the State maintains it must fail for several reasons: Banks
never raised it in his federal petition; the district court did not
grant relief based on it; and, even if Banks had presented it, it
should be denied on the merits.
No Giglio/Napue claim is presented in Banks’ federal petition.
He does, however, make such an assertion in his federal post-
hearing brief and in his proposed findings and conclusions. We
need not decide whether Banks sufficiently raised this claim; the
district court granted relief under Brady, not Giglio/Napue. It
did recognize that, at “no time did the State correct Farr’s
erroneous testimony or announce Farr’s paid informant status”; it
granted relief, however, on the basis of withheld impeachment
evidence. Banks-USDC, at 44.
30
Assuming Banks raised a Giglio/Napue claim in district court,
we cannot consider it, because Banks does not seek a COA based on
the district court’s not granting relief on this basis.
Furthermore, again assuming the federal petition included a
Giglio/Napue claim, Banks’ first and second state habeas petitions
did not. In his third petition, while he does cite Giglio, he does
so only in connection with the Brady claim concerning Cook, not
Robert Farr:
As extensively detailed elsewhere in this
Petition, the prosecutors concealed promises
of leniency and favorable treatment made to
key State’s witness Cook. Had this evidence
been disclosed to the defense, as required by
Giglio v. United States, 405 U.S. 150 (1972),
and Brady v. Maryland, 373 U.S. 83 (1963), the
jury likely would have rejected Cook’s
testimony and acquitted Mr. Banks.
In contrast, in Banks’ third state petition, in the section
presenting his Brady claim concerning Farr’s paid informant status,
there is no mention of a Giglio/Napue violation.
To exhaust, a petitioner must have fairly
presented the substance of his claim to the
state courts. It is not enough that all the
facts necessary to support the federal claim
were before the state courts.... Indeed,
where petitioner advances in federal court an
argument based on a legal theory distinct from
that relied upon in the state court, he fails
to satisfy the exhaustion requirement.
Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (internal
quotation marks and citations omitted).
31
Accordingly, because Banks seeks relief on a legal theory
distinct from that relied on in state court, any Giglio/Napue claim
is unexhausted. Therefore, under the materiality standard for
Brady, not Giglio/Napue, we must determine whether there is a
reasonable probability that, had the jury been informed of Farr’s
status, it would not have assessed the death penalty.
As detailed above, much of Farr’s penalty phase testimony was
corroborated, even by Banks. Obviously, although such testimony
was crucial to the State’s position on future dangerousness, Farr’s
paid informant status would not have directly contradicted his
testimony regarding Banks’ intent. Instead, evidence of his true
status would only have directly impeached his testimony that he was
not an informant.
Furthermore, even assuming it was not Banks’ intent to
actually participate in the planned robberies, it was certainly his
intent to provide Farr with a weapon to do so. Neither Farr’s
affidavits nor Deputy Huff’s testimony disputes this.
And, to the extent Farr’s informant status would have been
useful as other impeachment evidence, Farr had already been
impeached on three bases: that he did not get into an altercation
regarding false prescriptions; that he was not an informant for
Arkansas law enforcement; and that he had not been shot by his
wife.
32
Accordingly, Farr’s paid informant status, when considered
against the other impeachment evidence about him, and the fact that
much of his testimony concerning the trip to Dallas to retrieve
Banks’ pistol was corroborated, does not present a reasonable
probability that the jury would have found differently concerning
Banks’ future dangerousness. See Drew v. Collins, 964 F.2d 411,
419 (5th Cir. 1992) (holding evidence of an “incremental
impeachment value” not material), cert. denied, 509 U.S. 925
(1993). Therefore, the district court erroneously granted relief
based on Brady.
2.
Relief was also granted on Banks’ ineffective-assistance claim
for the penalty phase. He did not raise it in his first state
petition; in his second, he claimed only appellate counsel was
ineffective. In his third state petition, however, he claimed
trial counsel was ineffective for both phases. In recommending
denial, the state trial court stated: Banks received effective
assistance at all trial stages; and counsel adequately and
effectively investigated “matters relevant to both the
guilt/innocence and punishment phases”. Again, after remanding
for an evidentiary hearing concerning Banks’ Swain and juror bias
claims, the Court of Criminal Appeals accepted the trial court’s
recommendation and denied habeas relief. Ex parte Banks, No.
13,568-03 (Tex. Crim. App. 11 Jan. 1996) (unpublished).
33
To prevail on ineffective-assistance, Banks must prove
deficient-performance and resulting prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Performance is deficient
when the representation falls “below an objective standard of
reasonableness”. Id. at 688.
Prejudice occurs if counsel’s errors “were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable”. Id. at 687. Accordingly, Banks must show “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”.
Id. at 694. “When a defendant challenges a death sentence ..., the
question is whether there is a reasonable probability that, absent
the errors, the sentencer ... would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death”.
Id. at 695 (emphasis added).
The district court held counsel’s performance “deficient
[because he] fail[ed] to investigate or prepare for the punishment
phase, despite ... available mitigating evidence relating to
Banks’s background” and “fail[ed] to interview or prepare the
witnesses he ... called and examined” at that phase. Banks-USDC,
at 24. Concerning prejudice, the court held there was “a
reasonable probability that[,] but for the errors and omissions of
trial counsel at the punishment phase, combined with the State’s
failure to disclose Farr as a paid informant, the outcome of
34
Banks’s punishment phase would have been different”. Id. at 24-25
(emphasis added; cumulation of error discussed infra).
The district court first found deficient-performance because
counsel did not “attempt[] to obtain a social history from Banks or
his family”. Id. at 22. In addition, it found: counsel never
questioned Banks’ parents about his childhood; never informed them
they would be called to testify at the penalty phase; and waited
until the guilty verdict was returned to instruct Banks’ mother to
“gather witnesses for the punishment phase, which began the
following day”. Id.
The district court also based deficient-performance on Dr.
Cunningham’s testimony at the federal hearing; the court stated:
“Banks’s father abused alcohol and subjected Banks to repeated
incidents of brutality and harsh discipline”; as a child, “Banks
witnessed many episodes of cruelty directed at his mother”; and
“Banks ... had no history of violence or alcohol abuse and seemed
to possess a self-control that would suggest no particular risk of
future violence”. Id. at 23. According to the district court,
counsel never explored any of these issues and never presented this
evidence to the jury. Id.
The district court also found that, prior to trial, counsel
made no attempt to interview Vetrano Jefferson, the State witness.
Id. at 22. As noted, he was the second of the two penalty phase
witnesses used to establish future dangerousness; he testified
35
Banks had hit him with a gun and threatened to kill him.
According to the district court, if counsel had interviewed
Vetrano Jefferson, he would have known that
Jefferson, not Banks, was the aggressor in the
fight between the two men which occurred the
proceeding April [the month of the murder].
The trial testimony of Jefferson and the
prosecutor’s argument left the clear
impression that Banks was the aggressor.
Id. at 23.
a.
First at issue is whether counsel was ineffective for failing
to obtain Banks’ social history and to investigate mitigating
psychological evidence.
i.
The two failures are related. Obviously, to determine whether
expert assistance was needed, counsel needed to know the
circumstances of Banks’ past. For example, was he abused; did he
have mental deficiencies? Failure to ask these and similar
questions of his parents and others, a failure the State does not
dispute, falls below an objective standard of reasonableness.
Banks has demonstrated deficient-performance.
ii.
Regarding prejudice, in his brief here, Banks relies on Dr.
Cunningham’s testimony:
Dr. Cunningham’s testimony showed that [Banks’
father’s] chronic abuse of alcohol nearly tore
his family apart, caused ... Banks to endure
36
repeated incidents of undeserved brutality and
harsh discipline, and to witness many
instances of extreme cruelty directed at his
mother and siblings.
Dr. Cunningham testified: (1) Banks was physically and
mentally abused by his father; (2) he witnessed his father’s abuse
of his mother; (3) his father discharged firearms in the house; (4)
his father was an alcoholic; (5) Banks had a learning disability;
(6) he suffered from a chronic skin disease; and (7) there was a
low risk Banks would commit future acts of violence.
The State maintains Dr. Cunningham’s testimony is not
exhausted, because it was not presented in the state proceedings.
There, Banks submitted the affidavits of Dr. Pina, which stated:
his observations indicated Banks suffered brain damage; and,
ultimately, Banks did “not understand much of what was happening at
his trial, [and] he also did not understand much of what his lawyer
was saying”. In his amended affidavit, Dr. Pina discussed, inter
alia, Banks’ skin condition and his conclusion that Banks was
“beaten and terrorized by his alcoholic father; at least one such
beating involved young Delma’s being tied to a tree and whipped”.
He also stated that “some of the[] features of ... Banks’
psychological profile accurately would have predicted that he would
prove a ‘safe,’ nonviolent inmate during his present
incarceration”.
Banks does not address the exhaustion issue. He also stated
that “some of the[] features of ... Banks’ psychological profile
37
accurately would have predicted that he would prove a ‘safe,’
nonviolent inmate during his present incarceration”.
He fails to show cause for not presenting Dr. Cunningham’s
testimony to the state courts. This testimony is not exhausted; it
is a significant expansion of the facts and opinions presented in
state court through Dr. Pina’s affidavits. See Beazley, 242 F.3d
at 264. Accordingly, the only exhausted evidence for this claim is
through Dr. Pina’s affidavits.
As discussed supra, those affidavits addressed, inter alia,
Banks’ father’s “beating” and “terrorizing” him, including the
tying-whipping incident. Dr. Pina concluded: “[These] experiences
alone would be enough to account for a large part of Mr. Banks’
psychological impairment”. As for Banks’ skin condition, Dr. Pina
concluded: “[This] illness, compounding the trouble in his parents’
marriage from his father’s alcoholism, impaired the development of
normal and supportive bonding relationships between [Banks] and his
mother and father”. Accordingly, Dr. Pina concluded:
Banks learned to see himself as he thought the
world saw him: as a ghastly, frightful,
monstrous eyesore. He understandably went to
great lengths to hide himself from public view
throughout life.... His fears of rejection,
confirmed by his classmates, only led to lower
self esteem.
This psychological information, while possibly mitigating,
does not present a reasonable probability that, had the jury been
presented with it, it would have not assessed the death penalty.
38
In other words, in the light of the nature of the murder, Banks’
intent soon thereafter to retrieve a weapon to be used in future
armed robberies, and Banks’ continued denial during the penalty
phase that he committed the murder, there is not a reasonable
probability that this evidence would have changed the outcome of
the penalty phase. Accordingly, the district court erred in
granting relief on this basis.
b.
Next at issue is whether counsel was ineffective in failing to
prepare penalty phase witnesses — in particular, Banks’ parents —
to testify.
i.
Regarding deficient-performance, the State does not dispute
the finding that Banks’ counsel never attempted to prepare Banks’
parents or any of the other defense witnesses offered during the
penalty phase. We will assume deficient-performance.
ii.
Regarding prejudice, Banks’ father testified at the federal
hearing that he had a drinking problem in his “younger days” and
“used to get drunk every weekend”. When asked “what would you have
wanted to tell the jury about your son when they were going to go
back and decide the sentence in this case”, Banks’ father
responded: “I would’ve just [told] them to spare his life, because
I know I raised him real nice. He couldn’t [have done anything]
39
like that. I still say that”. In an affidavit submitted in the
state habeas proceedings, Banks’ father stated that, when Banks was
in elementary school, he tied him to a tree and “whipped him with
a leather belt or strap” to discipline him for tricking other
students out of their lunch money.
Banks’ mother testified at the federal evidentiary hearing:
Banks suffered from a skin disorder, as well as an inferiority
complex; and her husband had a drinking problem while Banks was
growing up. She testified during state habeas proceedings that her
husband “would get drunk and he would get angry and holler at me”.
Accordingly, at issue is whether, had Banks’ counsel prepared
Banks’ parents to testify to the above described events (including:
(1) the father’s drinking; (2) the tying-whipping incident; and (3)
the skin disorder), there is a reasonable probability the jury
would not have assessed the death penalty. There is not a
reasonable probability that, had the jury been presented with this
information, it would not have assessed the death penalty.
Therefore, the district court erred in granting relief on this
basis.
As for the failure to prepare other penalty phase witnesses,
the district court pointed to Kelly’s being intoxicated on the
morning he testified at Banks’ trial and Banks’ counsel’s “speaking
with Kelly for no more than one minute prior to testifying”.
Banks-USDC, at 22. The district court did not specify, nor does
40
Banks, what Kelly’s testimony would have been had counsel prepared
him. (In fact, Kelly’s testimony was quite helpful to Banks; it
impeached Farr’s testimony concerning his attempts to illegally
obtain prescription drugs.) Likewise, for his other penalty phase
witnesses, Banks does not state what their testimony would have
been had they been prepared. Accordingly, there is not a
reasonable probability that, had counsel prepared them, the jury
would not have sentenced Banks to death. Again, the district court
erred in granting relief on this basis.
c.
Next at issue is whether Banks’ counsel was ineffective for
failing to interview Vetrano Jefferson.
i.
Concerning deficient-performance, the State does not dispute
that Banks’ counsel never interviewed Jefferson, one of only two
penalty phase witnesses offered by the State. This failure falls
below an objective standard of reasonableness. Counsel’s
performance was deficient.
ii.
Again, in holding there was prejudice, the district court
determined that, based on Jefferson’s testimony at the evidentiary
hearing, had Banks’ counsel interviewed him, counsel “would have
known that Jefferson, not Banks, was the aggressor in the fight
between the two men.... The trial testimony of Jefferson ... left
41
the clear impression that Banks was the aggressor”. Banks-USDC, at
23 (emphasis added). The State maintains: that Jefferson’s
testimony at the federal hearing is unexhausted; and that,
alternatively, no prejudice resulted from the failure to interview.
(a)
The State asserts, and Banks does not dispute, that Vetrano
Jefferson’s post-trial testimony was never presented during the
state habeas proceedings. (The State points out that the unsigned
affidavit of Demetra Jefferson, (Vetrano Jefferson’s sister and the
mother of Banks’ children) was presented during those proceedings.
The district court apparently did not rely on that affidavit, and
Banks does not contend that we should consider it in determining
exhaustion vel non.)
Banks does not address exhaustion, much less show cause for
why, in the state proceedings, he did not present Jefferson’s
current version of the events. Accordingly, his testimony is
unexhausted; without it, Banks has not shown a reasonable
probability that the outcome of the penalty phase would have been
different, as there is no evidence to contradict Jefferson’s trial
testimony.
(b)
Even assuming exhaustion, Banks has not shown prejudice. At
the penalty phase, Banks admitted he hit Jefferson with a gun and
threatened to kill him.
42
Although, at trial, Jefferson testified that Banks did so, he
gave no background regarding the altercation. Jefferson provided
that aspect at the federal hearing:
I was drunk one day I came over and I was
threatening my sister and he [Banks] defended
her. And when he told me to leave her alone,
I told him I’ll whoop his ass. So we got into
a fight. And he got a gun and hit me in the
face with it.
Jefferson testified that he started the fight.
The only difference between Jefferson’s trial and federal
hearing testimony is his stating Banks hit and threatened to kill
him in response to his “threatening” his (Jefferson’s) sister and
telling Banks that he would “whoop his ass”. Thus, at issue is
whether, based on this information, there is a reasonable
probability the jury would not have answered the future
dangerousness issue as it did.
Needless to say, Banks’ assaulting and threatening to kill
Jefferson is far from a proportional response to verbal threats of
a non-lethal nature. Based on Banks’ violent response, coupled
with Farr’s testimony about Banks’ post-murder intent to commit, or
at least assist in, armed robberies, had the jury been presented
with Jefferson’s federal testimony, there is not a reasonable
probability it would not have found future dangerousness.
Accordingly, the district court erred in granting relief on this
basis.
3.
43
As stated, relief should not have been granted on the basis of
either ineffective-assistance or Brady error. But, the magistrate
judge seems to have grounded her recommendations with respect to
both claims on cumulative error.
For the Brady claim, the magistrate judge recommended that the
withheld information was material because
the State’s failure to disclose Farr’s
informant status, coupled with trial counsel’s
dismal performance during the punishment
phase, undermined the reliability of the
jury’s verdict regarding punishment. There is
a reasonable probability that[,] but for the
foregoing, the results of the punishment phase
of the trial would have been different.
Banks-USDC, at 44 (emphasis added).
For the ineffective-assistance claim, regarding prejudice, the
magistrate judge stated:
This is not a case where the evidence
presented by the State compels the conclusion
that the specific evidence offered by Banks
would not have made any difference in the
outcome with respect to punishment. There is
a reasonable probability that[,] but for the
errors and omissions of trial counsel at the
punishment phase, combined with the State’s
failure to disclose Farr as a paid informant,
the outcome of Banks’ punishment phase would
have been different.
Banks-USDC, at 24-25 (emphasis added).
The State objected to the report and recommendation on the
basis that the cumulative error doctrine had been improperly
invoked. The district judge overruled the objection, holding that
44
the magistrate judge “separately considered and analyzed” the Brady
and ineffective-assistance claims. Banks-USDCII, at 5. The
district judge also overruled the objection on the basis that the
two claims are interrelated, because Banks “contend[ed] that the
State failed to produce, and his counsel, due to inadequate
preparation, contrary to Strickland, failed to discover,
substantial evidence regarding Farr’s status”. Id. Ultimately,
the district judge noted that
federal habeas corpus relief may only be
granted for cumulative errors in the conduct
of a state trial where (1) the individual
errors involved matters of constitutional
dimension rather than mere violations of state
law; (2) the errors were not procedurally
defaulted for habeas purposes; and (3) the
errors so infected the entire trial that the
resulting conviction violates due process.
Id. at 5-6 (quoting Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.
1992) (en banc), cert. denied, 508 U.S. 960 (1993)).
The magistrate judge did separately address the claims; but,
each holding included the other as the basis of materiality or
prejudice. The district judge was also incorrect that the claims
were interrelated. In discussing ineffective-assistance, the
magistrate judge stated:
The State had a clear duty to correct Farr’s
untruthful testimony and failed to do so.
While trial counsel cannot be faulted for
failing to object on this basis, Farr’s
inaccurate testimony compounded the otherwise
inadequate efforts of trial counsel during the
punishment phase of the trial.
45
Banks-USDC, at 24 (emphasis added). Although this statement
attempts to link the two claims through cumulative error, it is not
a conclusion that the Brady claim is related to deficient-
performance.
Instead, it is the opposite. In fact, in his brief, Banks
makes clear he does not claim counsel was ineffective regarding the
Brady claim: “[Trial counsel’s] failure to impeach ... Farr’s most
damaging sentencing testimony ... cannot be laid at his feet”.
Accordingly, contrary to the district court’s holding that the
claimed errors were related, the magistrate judge’s recommendation
was instead based upon cumulative error.
a.
Banks, however, did not claim cumulative error in his federal
petition, with the exception of asserting that the “cumulative
effect of the prosecutors’ multifarious violations ... [denied him]
a fundamentally fair trial”. (Emphasis added.) Furthermore, he
did not claim cumulative error in any of his three state petitions.
Accordingly the district court’s cumulative error holding is based
on an unexhausted claim.
b.
Assuming this claim is exhausted and was raised in the
district court, the cumulative error holding fails on the merits.
Such error is predicated upon the theory that, although
certain errors, considered individually, do not mandate relief,
46
those errors, when considered in the aggregate, do. See United
States v. Sepulveda, 15 F.3d 1161, 1195-96 (5th Cir. 1993)
(“Individual errors, insufficient in themselves to necessitate a
new trial, may in the aggregate have a more debilitating effect”.),
cert. denied, 512 U.S. 1223 (1994).
It goes without saying that, for there to be cumulative error,
there must first be error. Likewise, where there is no error,
there is nothing to cumulate. See, e.g., Yohey v. Collins, 985
F.2d 222, 229 (5th Cir. 1993). Banks has not established error
either under Brady or for ineffective-assistance. Therefore,
relief cannot be based on cumulative error.
B.
Notwithstanding that Banks filed pre-AEDPA for federal relief,
he must obtain a COA, pursuant to AEDPA, in order to appeal a
denied claim. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.
1997); 28 U.S.C. § 2253(c)(1)(A). To receive a COA, he must make
“a substantial showing of the denial of a constitutional right”.
28 U.S.C. § 2253(c)(2) (emphasis added); see also Barefoot v.
Estelle, 463 U.S. 880, 893 (1983). He must demonstrate: the issues
are subject to debate among reasonable jurists; or a court could
resolve the issues in a different manner; or the questions
presented are worthy of encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483 (2000); Estelle, 463 U.S. at 893 n.4.
47
For claims denied on constitutional grounds, Banks must
“demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong”. Slack, 529 U.S. at 484. For those denied on procedural
grounds, Banks must show “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling”. Id. (emphasis added).
The claims for which he seeks a COA are: Brady; ineffective-
assistance at the guilt phase; Swain; and sufficiency of the
evidence.
1.
Banks’ two Brady claims concern Cook: suppression of the
earlier-described transcript (the 74-page transcript of the
prosecution’s pretrial, September 1980 interview of Cook (as
opposed to his April 1980 statement)); and suppression of the
earlier-described alleged deal for his testimony.
a.
The district court refused to consider the Brady claim
concerning the transcript. The State maintains Banks never raised
this issue in his petition; instead, he included the allegations in
his proposed federal findings and conclusions, in his objection to
the report and recommendation, and in his Rule 59 motion. That
48
motion to amend the judgment to discuss this claim was denied.
Such denial is reviewed for an abuse of discretion. Martinez v.
Johnson, 104 F.3d 769, 771 & n.3 (5th Cir.), cert. denied, 522 U.S.
875 (1997). Consequently, Banks must show jurists of reason would
find it debatable whether the court abused its discretion.
Banks insists he pleaded the issue sufficiently by stating
prosecutors “knowingly failed to turn over exculpatory evidence as
required by Brady”, mentioning Cook and Farr in that same
paragraph. Further, Banks contends the State acknowledged Brady
materials include impeachment evidence.
The State responds that the Brady claim in Banks’ petition
focused entirely on suppression of evidence concerning another
murder suspect; linking “Cook to Robert Farr and to Texarkana
generally”; revealing Farr’s status as a police informant; and
exposing Cook’s motivation to testify favorably for the State to
avoid prosecution on the unrelated arson charge that could have
resulted in his receiving a life sentence (this different Brady
claim is discussed infra). The State further asserts Banks should
have sought leave to amend his petition under Federal Rule of Civil
Procedure 15 because issues first raised in objections to a report
and recommendation are not properly before the district court. See
United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992);
United States v. Colon-Padilla, 770 F.2d 1328, 1334 n.6 (5th Cir.
49
1985); see also United States v. Saenz, 282 F.3d 354, 356 (5th Cir.
2002) (Rule 15 appropriate for amending habeas petition).
Banks contends, however, that discovery and declarations from
Cook and Farr demonstrated their extensive discussions with the
prosecutors, leading to the production of the transcript.
Following this production, the magistrate judge ruled that one
issue for which evidence would be received concerned, inter alia,
the State’s “withholding exculpatory and impeachment evidence
concerning at least two important witnesses — Charles Cook and
Robert Farr”.
The transcript was introduced at the federal hearing to
establish the Brady claim of suppression of material impeachment
evidence. Instead of objecting because Banks either was expanding
his due process claim or failed to exhaust his claims in state
court, the State, according to Banks, signaled to the court in pre-
trial submissions that it intended to utilize the transcript and to
call Bowie County ADA Elliot and Deputy Huff to defend against
Banks’ due process claim.
Accordingly, Banks contends Rule 15(b) applies: “When issues
not raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they
had been raised in the pleadings”. FED. R. CIV. P. 15(b). “[O]nce
issues are presented and argued without objection by opposing
counsel, such issues are tried by implied consent of the parties
50
and are treated as if they had been raised in the pleadings”.
Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 389 (5th
Cir. 1984); see also Hardin v. Manitowoc-Forsythe Corp., 691 F.2d
449, 456 (5th Cir. 1982)(“The test of consent is whether the
opposing party had a fair opportunity to defend and whether he
could have presented additional evidence....”).
Because of the discovery order, the discussion of the issue at
the federal hearing, and Banks’ cross-examination of the State’s
witnesses, Banks maintains the State had sufficient notice that
suppression of the transcript was included within the Brady claim.
Therefore, Banks asserts this claim was before the district court.
See Mongrue v. Monsanto Co., 249 F.3d 422, 427-28 (5th Cir. 2001).
The State counters: a federal evidentiary hearing is not a
trial for Rule 15 purposes; it opposed Banks’ hearing request,
maintaining, pursuant to Keeney, 504 U.S. at 5-6 (if petitioner
fails to develop claim in state court, must show cause and
prejudice to receive federal evidentiary hearing), he was not
entitled to one; no authority exists to suggest an evidentiary
hearing waives exhaustion or procedural default defenses or the
requirement that Banks must amend his petition to assert additional
claims; and Banks’ questioning witnesses at an evidentiary hearing
does not substitute for his not amending his petition.
On this issue, the district court correctly determined: in
his petition, Banks did not state a Brady claim concerning the
51
transcript, because Banks did not learn of it until three years
after it was filed; Banks should have sought leave to amend his
petition to add this claim; and issues first raised in objections
to a report and recommendation are not properly before the district
court. See Armstrong, 951 F.2d at 630. Further, Banks has not
pointed to any authority supporting his contention that, for Rule
15 purposes, an evidentiary hearing equates with a trial. Banks
has failed to demonstrate “jurists of reason would find it
debatable whether the district court was correct” in denying his
Rule 59 motion. Slack, 529 U.S. at 484.
b.
Also denied was the Brady claim of suppression of assurances
to Cook that, in exchange for favorable testimony, prosecutors
would arrange for dismissal of the pending arson charge. Banks
asserts: the charge was discussed by Deputy Huff and Cook; the
Deputy informed Cook of the filing of habitual offender papers
(life imprisonment); prior to trial, Cook was provided daily
conjugal visits with his wife; and the charge was dismissed the day
after Cook’s testimony because ADA Elliot and Deputy Huff traveled
to Dallas with Cook, where Elliot spoke to the prosecutor there.
Banks bases error on the district court’s: relying on
“misleading evidence” submitted in state court proceedings; and
finding the Dallas County prosecutor stated by affidavit there was
no prearranged plea bargain. Banks contends, and the State
52
concedes, that the affidavit shows the prosecutor was involved in
an unrelated forgery prosecution against Cook more than a year
after Banks’ trial. Banks contends the evidence sufficiently shows
the denial of a constitutional right, citing Giglio (suppression of
a deal with prosecution’s witness).
The State counters that the evidence submitted during the
state habeas proceedings was not misleading. In those proceedings,
in its response to this claim, the State provided affidavits from
Deputy Huff, ADA Elliot, and former Dallas County ADA Byrne.
Byrne’s 12 May 1992 affidavit states in relevant part: he was
a Dallas County ADA in June 1981 (eight months after Banks’ trial);
he was the prosecuting attorney in State of Texas v. Charles Edward
Cook, No. F81-2140-P; and he had no recollection of any deal in
exchange for Cook’s testimony in Banks’ trial. Banks explained in
his state court reply that Byrne was the prosecutor for the forgery
conviction following Banks’ trial. The state habeas court found
“no agreement between the State and ... Cook”. As noted, state
court factual findings are entitled to a presumption of
correctness. See Green, 116 F.3d at 1120 (applying pre-AEDPA law);
28 U.S.C. § 2254(d) (1994).
Further, the State maintains the district court’s ruling was
not based solely on Byrne’s affidavit but considered all the
evidence: the arson occurred on 7 May 1980, 13 days after Cook’s
April 1980 statement; Bowie County District Attorney Raffaelli
53
stated at trial no deal had been made in exchange for Cook’s
testimony; ADA Elliott denied any discussions with Cook prior to
Banks’ trial but, following it, discussed Cook’s favorable
testimony with a Dallas County prosecutor when he (Elliott)
returned Cook there; the discussion with that prosecutor was not a
reward for Cook, but was done because Elliot wanted that prosecutor
to know Cook had cooperated with law enforcement and hoped the same
would be done for him in cases he was handling.
The magistrate judge recommended that Cook’s testimony at the
federal hearing provided Banks’ only evidence of a deal between the
State and Cook or of threats to compel his testimony. Citing
Spence v. Johnson, 80 F.3d 989 (5th Cir.), cert. denied, 519 U.S.
1012 (1996), the magistrate judge recommended denying relief on
this claim because “the evidence and testimony presented by Cook in
this matter [are] not credible”. (Emphasis added.) Needless to
say, testimony from recanting witnesses is properly viewed with
suspicion, because it: upsets the finality of convictions; is
often unreliable, given suspect motives; and often serves to
impeach cumulative evidence, rather than undermine the accuracy of
the conviction. Dobbert v. Wainwright, 468 U.S. 1231 (1984)
(Brennan, J., dissenting); May v. Collins, 955 F.2d 299, 314 (5th
Cir.), cert. denied, 504 U.S. 901 (1992); see also Olson v. United
States, 989 F.2d 229, 231 (7th Cir.), cert. denied, 510 U.S. 895
54
(1993); United States v. Provost, 969 F.2d 617, 620 (8th Cir.
1992), cert. denied, 506 U.S. 1056 (1993).
Banks disagrees with the district court’s credibility
determinations. It goes without saying that we “accept magistrate
judge’s findings [adopted by the district judge] unless they are
clearly erroneous”. United States v. Breeland, 53 F.3d 100, 103
(5th Cir. 1995) (“Clear error is especially rigorous when applied
to credibility determinations because the trier of fact has seen
and judged the witnesses.” (Emphasis added; internal quotation
marks omitted.)).
The findings with respect to Cook and ADA Elliot were
“plausible in light of the record viewed in its entirety”. Id.
(internal quotation marks omitted). And, again, the state habeas
court’s identical finding is entitled to a presumption of
correctness. See Green, 116 F.3d at 1120. Banks has failed to
demonstrate the district court’s assessment of this Brady claim was
debatable or wrong. See Slack, 529 U.S. at 484.
2.
For the COA requested for ineffective-assistance at the guilt
phase, see Strickland, 466 U.S. at 668, Banks claims failure: to
investigate; to prepare for trial; and to effectively cross-examine
witnesses. (In addition, in the heading of one section of his
brief here, Banks states counsel was ineffective for failing “To
Object to Prosecutor’s Repeated Vouching for [Farr’s and Cook’s]
55
Credibility”. Because of the contemporaneous objection rule, this
failure-to-object prevented Banks from raising a prosecutorial
misconduct claim. See Jackson, 194 F.3d at 652. But, because
counsel was unaware of Farr’s paid-informant status and Cook’s
prior statements, there was no deficient-performance in this
regard. Further, this claim was never raised in district court and
is not properly before us. See, e.g., Dowthitt v. Johnson, 230
F.3d 733, 741 n.3 (5th Cir. 2000), cert. denied, 532 U.S. 915
(2001); Puckett, 176 F.3d at 814; Hallmark, 118 F.3d at 1079 n.3;
Yohey, 985 F.2d at 226.)
Obviously, a reasonable attorney engages in “a reasonable
amount of pretrial investigation”, including interviewing potential
witnesses and making an independent investigation of the facts and
circumstances, Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994),
and adequately and independently searching for available defense
evidence. See Moore v. Johnson, 194 F.3d 586, 608 (5th Cir. 1999)
(lack of investigation into evidence in state’s file and evidence
used to counter defendant’s alibi defense).
Banks also contends an ineffective-assistance claim involves
consideration of the strength of the State’s case. Restated, a
weak case for the State means counsel’s ineffective performance has
a much greater impact on the trial’s outcome. For example, in
Bryant, the court noted that the lack of physical evidence
connecting the defendant to the crime scene increased the
56
importance of pre-trial investigation of eyewitnesses; something a
reasonable lawyer would have realized and acted upon. 28 F.3d at
1418.
Banks contends that, in the light of the evidence at the
examining hearing four months before trial, his counsel should have
investigated the following: Banks’ claim he hitchhiked to Dallas,
which contrasted with the State’s contention he drove the victim’s
vehicle there; the victim’s time of death; and Cook’s credibility.
First, the State’s theory was that, after shooting the victim,
Banks drove his automobile to Dallas. Investigating the identity
of the individual who (according to Banks) allegedly picked Banks
up and drove him to Dallas or finding ways to attack the State’s
view that Banks drove an automobile with serious electrical
problems to Dallas would have been important to Banks’ defense.
Second, concerning the claimed time of death, Banks arrived in
Dallas by 8:30 a.m. on Saturday. The victim was killed
approximately 180 miles from Dallas. Therefore, evidence that the
victim was shot after 5:00 a.m. on Saturday would have been
exculpatory.
And third, Cook was the only witness to testify that Banks
made incriminating statements. Obviously, Cook’s credibility and
the reliability of his account of the events of the 12 April
weekend were critical.
57
Additionally, Banks contends that, other than his counsel’s
(Cooksey’s) speaking to witnesses identified by Banks’ common-law
wife a few days after Cooksey was retained, Cooksey did little
else. He filed several pretrial motions but did not ask to be
heard pre-trial. Further, his remarks on the record demonstrate
his lack of preparation: on the first day of jury selection, “I’m
not in possession of any information on any of the State’s
witnesses”; after jury selection, prior to further proceedings, “I
don’t have [a list of prosecution witnesses’ prior convictions] yet
and I can not effectively cross-examine these people without it”;
and during those subsequent proceedings, I’ve “never been to the
[crime scene] ... I don’t even know where it is” and “I haven’t
seen the ballistics report”.
Banks cites other claimed ineffective-assistance. During
trial, in cross-examining two persons who were with the victim on
Friday night, 11 April, Hicks and Bungardt (he didn’t cross-examine
the latter), Cooksey failed to develop the full extent of the
problems with the victim’s automobile. Counsel made no effort to
attack Fisher’s recollection of two gunshots as unreliable because
of Fisher’s groggy state, with Fisher’s testimony being the State’s
only evidence of time of death. (In closing arguments, Cooksey
stated: Fisher “certainly told you [the jury] the truth, without
a doubt”.) He did not cross-examine Deputy Huff. And, his cross-
58
examination of the medical examiner pertained only on the amount of
alcohol consumed by the victim prior to his death.
Banks contends: had Cooksey reasonably prepared for trial, he
could have demonstrated the autopsy report and crime scene evidence
suggested time of death was 12 to 24 hours after Fisher reported
hearing the gunshots. In support, Banks notes: rigor mortis
appears very soon after death, usually rendering the body stiff
within 12 to 24 hours and usually waning about 36 hours following
death; nevertheless, Deputy Huff and Dr. DiMaio observed full rigor
mortis in the body, even though Deputy Huff did not observe the
victim until approximately 54 hours after Fisher heard the loud
noises and Dr. DiMaio observed him roughly 24 hours after Deputy
Huff. Banks also notes: 72 hours after death, DiMaio should have
observed a drying of the lips, a graying discoloration of the lower
abdomen, and clouding of the corneas; however, although DiMaio
looked for these symptoms, he found none.
Likewise, Banks contends reasonable preparation would have
resulted in: having a mechanic testify about the unreliability of
the victim’s automobile; exposing the difference between Hicks’ and
Bungardt’s testimony about a defective car and Cook’s testimony
never mentioning any problems with it (in the state habeas
proceedings, the court concluded it was highly unlikely the vehicle
described by Hicks and Bungardt could have been driven to Dallas
59
without major repair work); and adequately cross-examining arguably
non-hostile prosecution witnesses.
Accordingly, Banks contends he has shown deficient-performance
and prejudice considering his counsel’s approach to the entire
trial, including the witnesses and readily available evidence that
could have provided the jury with reasonable doubt.
In countering these sweeping assertions, the State reminds
that, on the merits, Banks must show “counsel made errors so
serious that [he] was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment”. Strickland, 466 U.S. at
687; see also Bell v. Cone, 122 S. Ct. 1843 (2002); Lackey v.
Johnson, 116 F.3d 149, 152 (5th Cir. 1997). Judicial scrutiny must
be “highly deferential”. Strickland, 466 U.S. at 689; see also
Bell, 122 S. Ct. at 1852. Again, for prejudice, Banks must (on the
merits) demonstrate to a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been
different. Williams v. Taylor, 529 U.S. 362, 391 (2000) (citing
Strickland, 466 U.S. at 694). (Of course, to obtain a COA, he must
make only a substantial showing of ineffective assistance.)
Concerning time of death, the State contends that, at the
evidentiary hearing, Banks’ expert conceded (as discussed supra) it
was possible the victim was killed at the time the State theorized.
Accordingly, the State asserts Banks failed to prove the result of
the trial would have been different.
60
Concerning the victim’s automobile, the State contends Banks
failed to sufficiently plead these claims with specificity and to
show what evidence such investigations would have revealed. Banks
must state with specificity what the investigation would have
revealed and how it would have altered the outcome. See United
States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
The State contends Banks merely makes conclusory and
speculative allegations which do not sufficiently raise
constitutional issues to justify relief. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977); Barnard v. Collins, 958 F.2d 634,
643 n.11 (5th Cir. 1992), cert. denied, 506 U.S. 1057 (1993); Ross
v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). The State
maintains the district court also implicitly rejected these claims
because they were improperly raised in Banks’ proposed findings and
conclusions rather than in his habeas claim; and, considering
Banks’ conclusory claims, this implicit rejection was not an abuse
of discretion. See United States v. Cervantes, 132 F.3d 1106, 1111
(5th Cir. 1998) (refusal to consider claims raised by unauthorized
amendments reviewed for abuse of discretion) (citing United States
v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); Barksdale v. King,
699 F.2d 744, 747 (5th Cir. 1983)).
For purposes of obtaining a COA, Banks does not show
reasonable jurists would find it debatable whether Cooksey’s
performance was deficient. Cooksey did not personally investigate
61
certain aspects of the case; but, his investigator did conduct an
investigation, which included visiting the crime scene and
interviewing witnesses. Further, although Banks can speculate
about Cooksey’s cross-examination techniques, Cooksey has never
been asked to explain these aspects of his trial strategy (even
though, in state habeas proceedings, he did provide testimony
concerning Banks’ Swain claim).
Moreover, for purposes of obtaining a COA, and assuming
deficient-performance in investigation, trial preparation, and
cross-examination, Banks has failed to show, for the prejudice
prong, that “reasonable jurists would find the district court’s
assessment ... debatable or wrong”. Slack, 529 U.S. at 484. Banks
has not made a substantial showing that the trial-result would be
different. His expert conceded the time of death could have been
as the State suggested; Banks does not show that the alleged errors
would have changed the jury’s consideration of Cook’s testimony
concerning Banks’ confession to him; and Banks’ allegations
concerning problems with the victim’s automobile are too conclusory
and do not show how that evidence could have provided reasonable
doubt.
3.
Near the end of jury selection, Banks passed Cooksey a note:
“[W]e need[] black[s]”. Cooksey responded: “State will strike all
blacks”. Indeed, the State used four peremptory strikes to remove
62
all qualified blacks from the jury pool. Accordingly, Banks
presents a Swain claim.
As noted, concerning this claim, no contemporaneous objection
was made at trial. Banks contends it is not procedurally barred by
counsel’s failure to raise it at trial because it was rejected on
the merits in state habeas proceedings and because the State waived
the defense by not raising it in a timely manner and by electing to
resolve the claim on the merits. Further, Banks asserts: we
should not defer to the state court’s ruling; and he has made a
substantial showing of the denial of a constitutional right, namely
that Bowie County prosecutors engaged in the systematic exclusion
of black jurors continuing through Banks’ trial.
In his first state habeas application, Banks pleaded a Swain
claim. The State did not claim untimeliness; and the court
recommended its denial on the merits, finding “no systematic
exclusion by the State of any black veniremen or jurors in
contravention of [Banks’] rights”. On appeal, the State again made
no waiver or procedural default assertion; the claim was denied
based on the trial court’s findings. Ex Parte Banks, No. 13,568-01
(Tex. Crim. App. 1984) (unpublished).
In his third state application, Banks again raised his Swain
claim; the State urged denial on the merits; and the trial court
recommended denial. On appeal, the State claimed, for the first
63
time, that Banks defaulted his Swain claim because Cooksey failed,
at trial, to make a contemporaneous objection.
On remand to the trial court for an evidentiary hearing on,
inter alia, the Swain claim, that court found Cooksey failed to
raise the claim because he did not believe the prosecutors’
practices showed a Swain violation, and consequently, the claim was
procedurally barred. In addition, the court reached the merits of
the claim. As discussed supra, although it concluded the evidence
showed a prima facie case of systematic exclusion, it found the
peremptorily-struck four black jurors were removed for non-racial
reasons. On appeal, the claim was denied for the reasons given by
the trial court. Ex Parte Banks, No. 13,568-03 (Tex. Crim App.
1996) (unpublished).
Banks contends the district court incorrectly found Texas’
contemporaneous objection rule is an adequate and independent
ground for procedural default, claiming the rule was not “firmly
established and regularly followed” at the time of the default.
Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v.
Kentucky, 466 U.S. 341, 348 (1984)). The inquiry is whether the
rule “is strictly or regularly applied evenhandedly to the vast
majority of similar claims”, Amos v. Scott, 61 F.3d 333, 339 (5th
Cir.) (emphasis removed), cert. denied, 516 U.S. 1005 (1995), or
“identical claims”, id. at 343; see also Finley v. Johnson, 243
64
F.3d 215, 218 (5th Cir. 2001); Martin v. Maxey, 98 F.3d 844, 847-48
(5th Cir. 1996).
Banks asserts that, although Texas courts regularly apply the
contemporaneous objection rule to other types of claims, they have
not strictly and regularly applied it to Swain claims. See, e.g.,
Hogue v. Johnson, 131 F.3d 466 (5th Cir. 1997) (applying rule to
unobjected-to introduction of prior convictions), cert. denied, 523
U.S. 1014 (1998); Clark v. Collins, 19 F.3d 959 (5th Cir.) (Batson
v. Kentucky, 476 U.S. 79 (1986), claim), cert. denied, 513 U.S.
1036 (1994); Harris v. Collins, 990 F.2d 185, 187 (5th Cir.)
(Batson claim), cert. denied, 509 U.S. 933 (1993). Banks contends
the court in Ex Parte Haliburton, 755 S.W.2d 131, 135 n.5 (Tex.
Crim. App. 1988), reached the merits of a Swain claim even though
the defendant failed to show he timely objected at trial; and, in
Chambers v. State, 568 S.W.2d 313 (Tex. Crim. App. 1978), cert.
denied, 440 U.S. 928 (1979), although it was unclear the issue was
preserved because it was not raised in the new trial motion, the
court addressed the merits of a claim that blacks were
systematically excluded from jury service. Banks also contends a
Batson claim is not a “similar claim” because Batson claims solely
consider a prosecutor’s use of peremptory strikes in individual
trials and depend on contemporaneous credibility determinations to
explain a discriminatory pattern of strikes; on the other hand,
65
Swain claims look at prosecutors’ historical, systematic, and
continued discriminatory jury selection practices.
Banks also contends: the Supreme Court has never held its
procedural default jurisprudence applies to Swain claims; they are
unlike any other a defendant might raise at trial because the claim
requires collection of extensive historical material which is hard
to collect prior to trial; and, indeed, the reason the Court
rejected Swain for Batson was because the facts necessary to
support a Swain claim were not reasonably available at trial.
The State correctly contends federal habeas relief is
precluded when the last state court judgment relies upon an
independent and adequate state procedural bar. Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991); Harris v. Reed, 489 U.S.
255, 264 & n.10 (1989) (even if the state court reaches the merits
of the claim); Buxton v. Collins, 925 F.2d 816, 821 (5th Cir.),
cert. denied, 498 U.S. 1128 (1991).
Banks’ contention that Texas does not firmly apply the
contemporaneous objection rule to Swain claims is undermined by
case law. See Trevino v. Texas, 503 U.S. 562, 566-67 (1992)
(failure to challenge in some form the exclusion of black jurors
implicates contemporaneous objection rule); Teague v. Lane, 489
U.S. 288, 297 (1989). Texas courts regularly applied the rule in
the pre-Batson, Swain era. Williams v. State, 773 S.W.2d 525, 534-
66
35 (Tex. Crim. App. 1988), cert. denied, 493 U.S. 900 (1989)
Mathews v. State, 768 S.W.2d 731, 733 (Tex. Crim. App. 1989).
In response to the cases cited by Banks, the State contends
Chambers assumed, without deciding, that the issue was properly
before it, see 568 S.W.2d at 328, but stated the failure to object
waives the right and bars consideration on appeal. Id. at 319.
Also, Ex Parte Halliburton merely stated: “[W]e could not say
prior to applicant’s evidentiary hearing that he needed to object
at trial in order to preserve Swain error”. 755 S.W.2d at 135 n.5.
Further, “an occasional act of grace by the Texas court in
entertaining the merits of [a] claim that might have been viewed as
waived by procedural default” does not constitute failure to
regularly apply the rule. Hogue, 131 F.3d at 487 (internal
quotation marks omitted); Bass v. Estelle, 705 F.2d 121, 122-23
(5th Cir.), cert. denied, 464 U.S. 865 (1983).
Additionally, the State asserts the contemporaneous objection
rule is applied to substantially similar claims because Batson
merely changed the quantum of proof rather than the type claim
asserted. See, e.g., Andrews v. Collins, 21 F.3d 612, 621 (5th
Cir. 1994) (Batson claim), cert. denied, 513 U.S. 1114 (1995);
Harris v. Collins, 990 F.2d 185, 187 (5th Cir.) (same), cert.
denied, 509 U.S. 933 (1993); Jones v. Butler, 864 F.2d 348, 369-70
(5th Cir. 1988) (pre-Batson, Swain provided a means to raise a
67
Batson-type claim.), cert. denied, 490 U.S. 1075 (1989); see also
Wright v. Hopper, 169 F.3d 695, 709 (11th Cir.) (Swain claim
procedurally defaulted for failure to object), cert. denied, 528
U.S. 934 (1999).
Finally, Banks contends the State waived the procedural
default defense by not timely raising it. (Banks also asserts the
State’s failure to raise this defense shows the contemporaneous
objection rule is not a firmly established rule for Swain claims.)
“[P]rocedural default is normally a ‘defense’ that the State is
‘obligated to raise’ and ‘preserv[e]’ if it is not to ‘lose the
right to assert the defense thereafter.’” Trest v. Cain, 522 U.S.
87, 89 (1997) (quoting Gray v. Netherland, 518 U.S. 152, 166
(1996)); see also Engle v. Isaac, 456 U.S. 107, 124 n.26 (1982)
(“[A] State’s plea of default may come too late to bar
consideration of the prisoner’s constitutional claim”.). In the
exhaustion context, the Supreme Court rejected a rule allowing, or
even encouraging, “the State to seek a favorable ruling on the
merits in the district court while holding the exhaustion defense
... for use on appeal [because the rule might] prolong the
prisoner’s confinement for no other reason than the State’s
postponement of the [] defense....” Granberry v. Greer, 481 U.S.
129, 132 (1987).
A State waives a procedural bar defense by failing timely to
raise it. Fisher v. Texas, 169 F.3d 295 (5th Cir. 1999)(waiver for
68
failure to raise the defense in district court); Emery v. Johnson,
139 F.3d 191, 195 n.4 (5th Cir. 1997) (waiver for failure “to plead
procedural bar in the district court”) (citing United States v.
Marcello, 876 F.2d 1147, 1153 (5th Cir. 1989)), cert. denied, 525
U.S. 969 (1989); see also Cooper v. State, 791 S.W.2d 80 (Tex.
Crim. App. 1990) (en banc) (state’s obligation to raise the issue
before the appellate court); Tallant v. State, 742 S.W.2d 292, 294
(Tex. Crim. App. 1987) (en banc) (“[T]he State must call to the
attention of the court of appeals in orderly and timely fashion
that an alleged error was not preserved.”). On the other hand,
waiver is averted if the State raises the default “at any point in
the district court proceedings”. Wiggins v. Procunier, 753 F.2d
1318, 1321 (5th Cir. 1985) (emphasis added). It is undisputed the
State then raised the issue; therefore, in this regard, Banks’
assertion fails.
Assuming he defaulted on his Swain claim, Banks contends: he
has shown sufficient cause and prejudice. See, e.g., Harris v.
Reed, 489 U.S. 255 (1989). He maintains ineffectiveness of
counsel, Murray v. Carrier, 477 U.S. 478, 488-89 (1986), or
conflict of interest, Cuyler v. Sullivan, 446 U.S. 335 (1980),
provide sufficient cause. Banks contends his trial counsel was
ineffective for: failing to object; failing to conduct a reasonable
investigation; and misunderstanding his burden of proof.
69
Failure to make a contemporaneous Swain objection may
constitute deficient-performance, providing cause for procedural
default in the light of the evidence supporting the Swain claim.
Jackson v. Herring, 42 F.3d 1350, 1358 (11th Cir.), cert.
dismissed, 515 U.S. 1189 (1995). In the state habeas proceedings,
Cooksey testified he “probably would have” raised a Swain objection
had he possessed historical evidence of a practice of systematic
exclusion of black venire members and would have raised the claim
if there had been even a “scintilla of success”. Banks contends
Cooksey, as the former District Attorney, was uniquely aware of the
practice.
During the last four years of Cooksey’s tenure as District
Attorney, 94% of black venire members were struck compared with
approximately 20% of whites. In this regard, at the state
evidentiary hearing, Cooksey conceded the District Attorney’s
striking practice, including at Banks’ trial, was racially
disproportionate – over 92% of black venire members struck
peremptorily compared to less than 20% of whites. Given Cooksey’s
knowledge, Banks contends Cooksey’s failure to object was not a
reasonable tactical decision.
Banks further contends Cooksey failed to conduct a “reasonable
investigation” into the viability of a Swain claim. Strickland,
466 U.S. at 691. The state habeas court found Cooksey: was aware
of Swain; evaluated his chances for a successful challenge; and
70
concluded he could not prevail. On the other hand, it also found
the statistics presented “a prima facie case” of exclusion. Banks
contends: the record is devoid of any evidence of investigation
into the merits of a Swain claim; and Cooksey’s testimony was that
he did not raise a Swain claim because, in an earlier case
prosecuted by Raffaelli, he (Cooksey) noticed two blacks were on
the jury, even though he conceded on cross-examination that Swain
required an examination of the striking practice over a series of
cases. Banks maintains these inconsistencies, coupled with
counsel’s assurance, during jury selection, that the “State will
strike all blacks”, suggests Cooksey’s failure to investigate was
not sound trial strategy and fell below “the range of competence
demanded of attorneys in criminal cases”. Cook v. Lynaugh, 821
F.2d 1072, 1078 (5th Cir. 1987) (quoting McMann v. Richardson, 397
U.S. 759, 771 (1970)).
Again, counsel “must have a firm command of the facts of the
case as well as the governing law before he can render reasonably
effective assistance”. Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex.
Crim. App. 1990). Cooksey had an erroneous view of the Swain
burden of proof. He believed statistical proof was not useful
under the circumstances; and that, beyond establishing a prima
facie case, the defendant must prove the prosecutor’s
discriminatory intent. Establishing a prima facie case, however,
shifts the burden to the State to rebut the presumption of
71
discrimination. Willis v. Zant, 720 F.2d 1212, 1220-21 (5th Cir.
1983), cert. denied, 467 U.S. 1256 (1984).
Because the failure to object resulted in an all-white jury,
Banks contends Cooksey’s deficient-performance prejudiced him.
Systematic exclusion of blacks from petit juries slants the
judicial process unfairly against black defendants. See Hollis v.
Davis, 941 F.2d 1471, 1482 (11th Cir. 1991) (“[W]e would have
greater confidence in the [result reached by a racially mixed
jury], finding much less probability that racial bias had affected
it”.), cert. denied, 503 U.S. 938 (1992); see also Cassell v.
Texas, 339 U.S. 282 (1950) (Jackson, J. dissenting).
The State responds: the state habeas court found Cooksey
evaluated his chances of success and determined a Swain claim would
have been frivolous; and, because Texas courts have repeatedly
rejected Swain claims, see Andrews, 21 F.3d at 623; Evans v. State,
622 S.W.2d 866 (Tex. Crim. App. 1981), deciding to forgo the Swain
claim was not constitutionally deficient, see id.; Wiley v.
Puckett, 969 F.2d 86, 102 (5th Cir. 1992); Koch v. Puckett, 907
F.2d 524, 526 (5th Cir. 1990). Because Texas courts repeatedly
reject Swain claims, the State also contends any objection would
have been unsuccessful, which prevents Banks from demonstrating
prejudice.
Also, Banks claims Cooksey had a conflict of interest because
a Swain claim would implicate him in his prior role as District
72
Attorney. To warrant relief from procedural default, however, the
conflict must have been actual, not merely speculative. Barrientos
v. United States, 668 F.2d 838, 841 (5th Cir. 1982). Actual
conflict exists when “a defense attorney owes duties to a party
whose interests are adverse to those of the defendant”. Zuck v.
Alabama, 588 F.2d 436, 439 (5th Cir.), cert. denied, 444 U.S. 833
(1979); see also United States v. Martinez, 630 F.2d 361 (5th Cir.
1980) (previous representation of prosecution witness), cert.
denied, 450 U.S. 922 (1981); Stephens v. United States, 595 F.2d
1066 (5th Cir. 1979) (concurrent representation of prosecution
witness). Banks contends the conflict in this case was exposing a
practice that Cooksey had engaged in for years.
The State responds that Banks has failed to show a conflict of
interest under Cuyler, 446 U.S. at 348. See Hernandez v. Johnson,
108 F.3d 554, 559-60 (5th Cir.) (assuming without deciding the
Cuyler standard applies when a former district attorney represents
a defendant), cert. denied, 522 U.S. 984 (1997). Banks must show:
trial counsel’s situation was “inherently conducive to divided
loyalties”, Perillo v. Johnson, 205 F.3d 775, 801 (5th Cir. 2000)
(internal quotation marks omitted); and counsel did not pursue the
strategy because of the conflict, Hernandez, 108 F.3d at 560.
Because mere conclusory allegations are insufficient, Perillo, 205
F.3d at 802, Banks has failed to show any evidence in the record
that Cooksey failed to make the Swain objection because of his
73
former position. See also Mickens v. Taylor, 122 S. Ct. 1237
(2002).
For COA purposes, the Swain claim was procedurally defaulted.
Texas courts regularly apply the contemporaneous objection rule to
Swain, as well as to similar Batson, claims. As for cause and
prejudice to overcome the default, although it may be that counsel
was deficient in not contemporaneously raising this claim, Banks
has failed to show prejudice sufficient to overcome the bar. In
the light of the state court’s finding of a prima facie Swain
violation, the State proved that, for Banks’ trial, no black venire
member was excluded because of his or her race. Consequently, for
his Swain claim, Banks fails to make a substantial showing of the
denial of a constitutional right.
4.
Banks contends the evidence fails to establish future
dangerousness beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307 (1979). At trial, the State relied upon the underlying
facts of the crime, Vetrano Jefferson’s testimony of Banks’
unprovoked assault with a pistol, and Farr’s testimony that Banks
sought to reclaim his pistol in Dallas in order to commit armed
robbery and, if necessary, eliminate witnesses. Banks maintains
evidence revealed in this appeal establishes: Jefferson’s testimony
as to who was the aggressor was misleading; Farr’s testimony was
74
false; and, without their testimony, the evidence did not establish
future dangerousness.
Although Banks contested sufficiency of the evidence in each
of his three state habeas petitions, he did not do so on direct
appeal. The last state court judgment on this issue (third state
habeas proceeding) held his claim meritless and expressly and
unambiguously applied a procedural bar:
The evidence is sufficient to support an
affirmative answer to the second [future
dangerousness] special issue. This claim is
procedurally barred. Sufficiency of evidence
may not be raised in collateral attack. Ex
parte Brown, 757 S.W.2d 367 (Tex. Crim. App.
1988); Ex parte Williams, 703 S.W.2d 6[74]
(Tex. Crim. App. 1986).
Ex Parte Banks, No. 80-F-86-102-C (D. Ct. Bowie County 22 Feb.
1993) (unpublished)(emphasis added). The Court of Criminal Appeals
summarily accepted the findings and conclusions. See Ex Parte
Banks, No. 13,568-03 (Tex. Crim. App. 11 Jan. 1996) (unpublished).
Accordingly, the district court held the claim defaulted. See
Coleman, 501 U.S. 739-30. As discussed supra, even if the state
court reaches the merits of a claim, federal courts must honor an
independent and adequate procedural bar. Harris, 489 U.S. at 264
n.10; Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.), cert.
denied, 525 U.S. 1049 (1998). The state court’s invocation of the
bar must be clear and express; and the bar must be followed
regularly by state courts and applied to a majority of identical or
75
similar claims. Finley, 243 F.3d at 218; Martin, 98 F.3d at 847-
48; Amos, 61 F.3d at 341.
Texas courts regularly apply this bar to claims raised for the
first time on collateral review. See, e.g., Ex parte Sanchez, 918
S.W.2d 526, 527 (Tex. Crim. App. 1996). And, as a bar to federal
habeas review, our court has similarly acknowledged Texas courts’
application of this bar. E.g., Renz v. Scott, 28 F.3d 431, 432
(5th Cir. 1994); Clark v. State of Texas, 788 F.2d 309, 310 (5th
Cir. 1986).
Nevertheless, Banks asserts: because “state courts repeatedly
forgave [the failure to raise the claim on direct appeal] and
reviewed the claim on its merits during [his] first and second
[state] proceedings”, the state court’s default determination, in
his third habeas proceeding, was actually a determination that the
court would not again review the merits. This contention ignores
the clear language of the above-quoted last state court decision,
applying the procedural bar.
Banks further submits that, even if the claim is defaulted,
given the record before the court, a miscarriage of justice will
occur in the absence of review. Calderon v. Thompson, 523 U.S. 538
(1998); Schlup v. Delo, 513 U.S. 298 (1995). According to Banks,
at the federal evidentiary hearing: Farr testified his penalty
phase testimony was a misrepresentation, because Banks had no plans
to commit further crimes; Vetrano Jefferson testified his trial
76
testimony was misleading, because he was the aggressor and Banks
acted primarily to protect his pregnant common-law wife; and Banks’
unrebutted time of death evidence made it unlikely he could have
committed the crime. Banks contends the new evidence shows by
clear and convincing evidence that, had the jury known of this
evidence, he would not have been convicted or sentenced to death.
See Reasonover v. Washington, 60 F. Supp. 2d 937 (E.D. Mo. 1999)
(key witness testimony fabricated and another witness received
sentencing leniency); Richter v. Bartee, 973 F. Supp. 1118 (D. Neb.
1997) (new evidence that complainant fabricated sexual assault).
As the State correctly observes, the miscarriage of justice
exception is reserved for cases of factual innocence. See
Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). The State
contends: the testimony by Farr and Vetrano Jefferson had nothing
to do with whether Banks murdered the victim; Banks failed to
identify recanted testimony from Cook showing Banks’ actual
innocence; and Banks’ expert admitted it was possible the victim
was shot when Fisher reported hearing the loud noises.
For COA purposes, the last state court to address Banks’
sufficiency claim found it procedurally barred; Banks has failed to
show cause and prejudice to excuse that default; and the
miscarriage of justice exception does not apply. In sum, Banks has
not shown that jurists of reason would find it debatable that the
district court was incorrect in ruling Banks defaulted this claim.
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III.
For the foregoing reasons, we DENY the COA requests; REVERSE
and DENY the grant of habeas relief; and, therefore, RENDER
judgment for Respondent.
COA and HABEAS RELIEF DENIED; JUDGMENT REVERSED and RENDERED
78
Banks v. Dretke
Combined Opinion