United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 26, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-70040
LONNIE EARL JOHNSON,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Texas, Houston
No. H-04-3902
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Lonnie Earl Johnson, convicted of capital murder in
Texas and sentenced to death, requests this Court to issue a
Certificate of Appealability (COA) pursuant to 28 U.S.C. §
2253(c)(2). Johnson challenges only his death sentence. He raises
the following issues: (1) the prosecution suppressed material
exculpatory evidence during the sentencing phase in violation of
*
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this opinion should not be published and is not precedent except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.
due process; (2) due process and equal protection required that his
jury be instructed regarding parole laws; and (3) the Texas capital
sentencing scheme’s failure to require the prosecution to prove
beyond a reasonable doubt future dangerousness and the absence of
mitigation evidence violates due process and is in conflict with
Supreme Court precedent. Finding that Johnson has not made a
substantial showing of the denial of a constitutional right, we
DENY the COA.
I. STANDARD OF REVIEW
Johnson filed his § 2254 petition for a writ of habeas corpus
after the effective date of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). The petition, therefore, is subject to the
requirements, restrictions, and standards imposed by AEDPA. See
Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997).
Under AEDPA, a petitioner must obtain a COA before he can appeal
the district court’s denial of habeas relief. See 28 U.S.C. §
2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123
S.Ct. 1029, 1039 (2003) (“[U]ntil a COA has been issued federal
courts of appeals lack jurisdiction to rule on the merits of
appeals from habeas petitioners.”).
A COA determination under § 2253(c) requires this Court to
conduct an overview of the habeas claims and make a general
assessment of the merits. Miller-El v. Cockrell, 537 U.S. at 336,
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123 S.Ct. at 1039. This Court looks to the district court’s
application of AEDPA to petitioner’s constitutional claims and ask
whether that resolution was debatable among jurists of reason. Id.
“This threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims. In fact,
the statute forbids it.” Id.
A COA will be granted only if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123
S.Ct. at 1034. Where the district court has denied claims on
procedural grounds, a COA should issue only if it is demonstrated
that “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.” Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000). “The
question is the debatability of the underlying constitutional
claim, not the resolution of that debate.” Miller-El, 537 U.S. at
342, 123 S.Ct. at 1042. “Indeed, a claim can be debatable even
though every jurist of reason might agree, after the COA has been
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granted and the case has received full consideration, that
petitioner will not prevail.” Id. at 338, 123 S.Ct. at 1040.
Moreover, “[b]ecause the present case involves the death penalty,
any doubts as to whether a COA should issue must be resolved in
[petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248
(5th Cir. 2000).
“We further note that when reviewing the district court's
assessment, we must be mindful of the deferential standard of
review of 28 U.S.C. § 2254(d).” Brown v. Dretke, 419 F.3d 365, 371
(5th Cir. 2005), cert. denied, 126 S.Ct. 1434 (2006). Under §
2254(d), a federal court cannot grant habeas corpus relief with
respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of that claim either (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding. 28 U.S.C. § 2254(d). With respect to
the review of factual findings, AEDPA significantly restricts the
scope of federal habeas review. Factual findings are presumed to
be correct, and a petitioner has the burden of rebutting this
presumption with clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
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II. SUPPRESSION OF EVIDENCE
Johnson argues that the State failed to disclose exculpatory
evidence relating to a State’s witness who testified during the
punishment phase. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194 (1963). The State has a duty to disclose evidence favorable
to the accused that is material to guilt or punishment. See id.
at 86-87, 83 S.Ct. at 1196-97. To establish this due process
violation, an accused must show that the State withheld evidence,
that the evidence was favorable, and that the evidence was material
to the defense. Little v. Johnson, 162 F.3d 855, 861 (5th Cir.
1998). “Brady applies equally to evidence relevant to the
credibility of a key witness in the state’s case against a
defendant.” Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006)
(citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763
(1972)), cert. denied, ___ S.Ct. ___, (NO. 05-1568) 2006 WL
2795465, (Oct 02, 2006). However, a new trial is not automatically
required “whenever a combing of the prosecutors’ files after the
trial has disclosed evidence possibly useful to the defense but not
likely to have changed the verdict.” Giglio, 405 U.S. at 154, 92
S.Ct. at 766 (quotation marks and citation omitted).
The standard for determining “materiality is a ‘reasonable
probability’ of a different result.” Kyles v. Whitley, 514 U.S.
419, 434, 115 S.Ct. 1555, 1566 (1995). In assessing Brady
materiality, “[t]he question is not whether the defendant would
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more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.
A ‘reasonable probability’ of a different result is accordingly
shown when the [State’s] evidentiary suppression ‘undermines
confidence in the outcome of the trial.’” Id. (citation omitted).
During the punishment phase of Johnson’s capital murder trial,
the State called Donald Richardson to testify regarding violent
threats Johnson made during a motorcycle trip from Tomball, Texas
to Austin. Richardson testified that Johnson, who was armed with
a gun, threatened to kill a man for his car. Subsequent to
Johnson’s conviction, Richardson recanted his trial testimony in an
affidavit, stating that it was “all false” and he “consented to do
this on the grounds that [the Harris County District Attorney’s
Office] would contact the Texas Board of Pardons and Parole and
secure my early release from prison.”
During Johnson’s state habeas proceedings, his attorney
submitted a note that had been handwritten by Richardson to Diana
Lynn Glaeser, one of the prosecutors at Johnson’s trial.
Apparently, Johnson’s habeas attorney had discovered the following
note in the prosecution file:
I need to see you as soon as possible, please come see me
at the jail. I am at 1301 Franklin 7th Floor at the
moment. I am having some problems that I need fixed
right now. If you can’t make it today please send
someone else to assist me. Thank you.
Sincerely Donald Richardson
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[address omitted]
P.S. Pertaining to Lonnie E. Johnson case.
With respect to the chronology of events, the note was written on
October 10, 1994. The jury found Johnson guilty of both capital
murders on November 14, 1994, and three days later the judge
accepted the jury’s punishment verdict of a death sentence. On
January 30, 1995, the prosecutor informed Johnson’s trial attorney
that Richardson disavowed his testimony and wanted to “change his
testimony, or words to that effect.”
During Johnson’s state habeas proceedings, his counsel
submitted an affidavit from Richardson, which provided as follows:
“The statements I made at trial about Lonnie displaying a handgun
and wanting to kill a motorist were all false. These were
statements made to make the district attorney happy, so she would
secure my early release from prison.”
The state habeas trial court made the ensuing findings of fact
with respect to the instant claim based upon the “credible
affidavit of Di Glaeser, the trial prosecutor in the primary case.”
In 1990, Richardson contacted a law enforcement agency and provided
information about Johnson. In October of 1990, Richardson spoke to
an investigator with the Harris County District Attorney’s Office
and the information provided in that interview was consistent with
Richardson’s trial testimony. The “State’s file was always open to
the applicant’s trial counsel, and that trial counsel went to the
State’s office to inspect the file.” The court further found:
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that Donald Ray Richardson contacted the Harris County
District Attorney’s Office several times in the days
leading up to the trial of the primary case; that
Richardson was serving concurrent prison sentences for
auto theft and burglary at the time of trial and was
bench warranted from TDC to the Harris County Jail prior
to trial; that Richardson indicated that he was having
problems in the jail and wanted to be moved; that Glaeser
passed this information on to her investigator, who in
turn contacted the county jail personnel; and that
Richardson was ultimately moved within the jail.
Additionally, the court found that after Richardson was moved once
within the jail, any other requests he made, including to be moved
again, were ignored by the State. Richardson was informed that he
would not receive any “deals” in exchange for his testimony against
Johnson. The court expressly found that Glaeser neither made a
deal with Richardson nor instructed or encouraged him to lie at
trial.
The court also found credible the affidavits of Rob Kepple, an
assistant district attorney who was involved in the pretrial
proceedings, and D.C. Wells, an investigator for the Harris County
District Attorney’s office. Both affiants stated that Richardson
received no deal or agreement in exchange for his testimony.
In a nutshell, the state habeas court found that the
prosecution did not promise anything in exchange for Richardson’s
testimony. The only “benefit” Richardson received was being
relocated away from Johnson within the jail. As the court below
stated, the state habeas court’s factual findings “destroyed
Johnson’s habeas claims.”
Johnson contends that he did not have a “fair opportunity to
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challenge the credibility of the prosecutors” and that “all
credibility decisions were made from a cold record.” Prior to
AEDPA, this Court has explained that “the presumption of
correctness does not become inapplicable for the sole reason that
no live evidentiary hearing has been held.” May v. Collins, 955
F.2d 299, 311 (5th Cir. 1992) (emphasis in original). Thus, this
challenge to the factual findings would have failed even pre-AEDPA.
AEDPA “jettisoned all references to a ‘full and fair hearing’ from
the presumption of correctness accorded state court findings of
fact.” Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir. 2001).
“The presumption of correctness erected in its place at §
2254(e)(1), now simply provides that unless the petitioner can
rebut the findings of fact through clear and convincing evidence,
those findings of fact are presumed to be correct.” Id. Johnson
has failed to marshal clear and convincing evidence to rebut the
presumption of correctness afforded the state court’s findings of
fact.
Moreover, as the district court concluded, “[e]ven if the
prosecution knew that Richardson would fabricate his testimony or
made a ‘deal’ that resulted in his lies – and Johnson has not made
either showing – the evidence against Johnson would allow the state
habeas court to conclude that Richardson’s testimony was not
material under the Brady standard.” “The materiality of Brady
material depends almost entirely on the value of the evidence
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relative to the other evidence mustered by the state.” Edmond v.
Collins, 8 F.3d 290, 293 (5th Cir. 1993) (internal quotation marks
and citation omitted). Johnson does not dispute the state court’s
finding that “there were twenty-three punishment phase witnesses
other than Donald Richardson who testified concerning at least nine
incidents of actual violence by [Johnson] as well as many other
incidents of threatened violence.” Moreover, numerous witnesses
(both prison guards and inmates) testified to Johnson’s continuing
violent behavior after his incarceration for the instant capital
murders. In view of the other evidence of Johnson’s future
dangerousness, combined with the instant execution-style murders of
the two teenage boys who apparently were attempting to help Johnson
with his feigned car trouble, we conclude that there is no
reasonable probability that disclosure of the allegedly suppressed
evidence would have resulted in a different outcome at sentencing.
Accordingly, because we conclude that jurists of reason would not
find the district court’s disposition of this claim debatable, we
deny a COA.
III. PAROLE INSTRUCTION
Johnson next contends his due process and equal protection
rights require that a jury be instructed with respect to parole
laws and the “implication of a life sentence.” Johnson did not
request that the jury be so instructed, and the state habeas court
10
found that the claim was procedurally barred. The district court
therefore found that it was procedurally barred from considering
this claim.
Johnson acknowledges that no objection was made. Nonetheless,
relying on Texas state law, he argues that he was not required to
object based on the “right not recognized” exception. When faced
with this precise argument, this Court has explained that “it is
not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Rosales v. Cockrell, 48
F.App’x 103 *6 (5th Cir. 2002) (unpublished) (quoting Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475 (1991)). As such, the
district court’s conclusion that habeas review of Johnson’s claim
is procedurally barred is not debatable among reasonable jurists.
Johnson has not demonstrated either cause or prejudice, or that
imposition of the bar would constitute a miscarriage of justice.
He thus has failed to show that jurists of reason would find the
district court’s procedural bar debatable.
In any event, our precedent squarely precludes Johnson from
making a substantial showing regarding the denial of due process or
equal protection rights with regard to this claim. See, e.g.,
Coleman v. Quarterman, 456 F.3d 537, 544-45 (5th Cir. 2006)
(rejecting claim that the equal protection clause is violated by
the discretionary ability of Texas trial judges to instruct a jury
regarding a defendant’s parole eligibility); Miller v. Johnson, 200
11
F.3d 274, 290 (5th Cir. 2000) (rejecting claim that due process
required parole instruction regarding petitioner’s parole
eligibility). The district court’s disposition of this claim is
not debatable, and thus, we deny a COA.
IV. UNCONSTITUTIONAL SENTENCING SCHEME
In his final claim, Johnson argues that the Texas sentencing
scheme is “unconstitutional because there is no requirement that
the State prove beyond a reasonable doubt that the answers to the
special issues presented to the jury must be answered ‘yes.’” In
support of this argument, Johnson principally relies on United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), and Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002). The district court
denied relief, stating, inter alia, that it could not grant relief
without creating a new rule in violation of Teague v. Lane, 489
U.S. 288, 109 S.Ct. 1060 (1989).
With respect to Johnson’s reliance on Booker and Blakely,
“[t]his argument is foreclosed before this court by United States
v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005), and In re Elwood, 408
F.3d 211, 212-13 (5th Cir. 2005) (per curiam), both of which hold
that the Blakely/Booker line of cases does not apply retroactively
to cases on collateral review.” United States v. Edwards, 442 F.3d
12
258, 268 (5th Cir. 2006).1 With respect to his reliance on Ring,
the Supreme Court has explicitly held that “Ring announced a new
procedural rule that does not apply retroactively to cases already
final on direct review.” Schriro v. Summerlin, 542 U.S. 348, 358,
124 S.Ct. 2519, 2526 (2004).2 Moreover, this Court recently
rejected the claim that the State is constitutionally required to
prove beyond a reasonable doubt the absence of mitigating
circumstances. Granados v. Quarterman, 455 F.3d 529, 536-37 (5th
Cir.), petition for cert. filed (Sept. 28, 2006)(NO. 06-6932). The
district court’s disposition of this claim is not debatable and
thus, we deny a COA.
V. CONCLUSION
For the above reasons, the request for a COA is DENIED.
1
Although Edwards involved a section 2255 motion, its
holding is applicable to the instant section 2254 proceeding. See
United States v. Orozco-Ramirez, 211 F.3d 862, 864 n.4 (5th Cir.
2000). “‘Because of the similarity of the actions under sections
2254 and 2255, they have traditionally been read in pari materia
where the context does not indicate that would be improper.’” Id.
(quoting United States v. Flores, 135 F.3d 1000, 1002 n. 7 (5th
Cir. 1998)).
2
Johnson also cites Victor v. Nebraska, 511 U.S. 1, 114
S.Ct. 1239 (1994), in which the Supreme Court held that an
instruction defining “reasonable doubt” did not violate the due
process clause. We agree with the district court’s conclusion that
Victor is inapposite because Johnson is not challenging any
definition of “reasonable doubt” contained in the jury
instructions.
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