UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 99-41068
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JAMES ROY KNOX,
Petitioner-Appellant,
VERSUS
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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August 21, 2000
Before DAVIS, SMITH and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
James Roy Knox appeals the district court’s denial of his 28
U.S.C. § 2254 petition for a writ of habeas corpus seeking to set
aside his June 22, 1994 conviction and death sentence for murder in
the course of a robbery. Knox contends that the district court
erred in granting summary judgment against his numerous challenges
to the constitutionality of his conviction. For the reasons that
follow, we affirm the judgment of the district court.
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I
On November 10, 1982, at approximately 5:30 p.m., a man
entered Joe’s Pharmacy in Galveston, Texas, brandishing a dark
semiautomatic pistol. He pointed the pistol at the pharmacist, Joe
Sanchez, and his assistant, Ronald Dale Dyda, and demanded money
and drugs. The robber, described by Dyda as a thin unshaven white
male, approximately six feet tall, ordered Sanchez and Dyda to “get
down on the floor.” When Sanchez refused to comply, the robber
gave Dyda some medical tape and told him to bind Sanchez’s hands.
Sanchez resisted, pulling his hands apart and instructing Dyda
not to give any money to the robber. As Sanchez freed himself, the
pharmacy phone rang. Sanchez answered the phone and heard Joanne
Seelbach, a long-time customer, on the line. Seelbach testified
that Sanchez answered the phone as usual, but then yelled, “I don’t
know where the dope’s at.” Seelbach testified that she heard an
unfamiliar male voice demand, “I want the Goddamn dope” and
threaten, “You son-of-a-bitch, I am going to kill you.” Seelbach
then heard a shot ring out and overheard the unfamiliar male voice
state, “now you will give me the dope you son-of-a-bitch.” She
immediately hung up and called the police.
Dyda testified that he too heard the gunshot and saw Sanchez
fall through a curtain behind the counter. According to Dyda, the
robber pointed the gun at him and demanded “Class A” narcotics.
Dyda handed the robber four small brown bottles of Demerol and the
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cash from the register. The robber asked for more drugs, but when
Dyda turned to retrieve more from the counter, the robber fled out
the front door.
Sanchez died shortly thereafter from a gunshot wound to the
midchest. Authorities recovered the bullet and determined that it
came from either a .38-caliber or a 9mm gun.
At the time of the robbery, Kathleen Austin, Gene Austin, and
Robert Clarac were at the Austins’ catering shop next door to Joe’s
Pharmacy. They heard a loud bang and went outside to investigate,
thinking that the noise came from someone hitting a car in the
parking lot. Kathleen Austin and Robert Clarac testified that they
noticed an old dark brown car running its engine. Kathleen and
Robert headed back towards the front of her store and almost
collided with a man running around the corner from Joe’s Pharmacy.
They described the man as a thin, scraggly-looking white male,
approximately six feet tall. Upon seeing Kathleen, the man slowed
to a walk and bid her “Have a nice day.” Kathleen noticed that he
was concealing his left hand under his shirt and carrying about
three brown bottles in his right hand.
Gene Austin described seeing the same man and car. He also
saw a driver waiting behind the wheel of the car and saw the
scraggly-looking man get in the passenger seat of the car. Gene
further testified that he saw the car drive off in a westerly
direction and that he tried to follow the car but was too late.
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Authorities apprehended James Roy Knox in 1984 and charged him
with the Joe’s Pharmacy robbery and murder. Knox’s cellmate in the
Galveston County jail, Carroll Bernard Smith, testified that Knox
admitted to him that he robbed a drug store in Galveston.
According to Smith, Knox told him that he attempted to tie-up the
pharmacist but had to shoot him when he resisted. Smith further
testified that Knox told him that he buried the gun halfway between
Galveston and Houston and that after the robbery he headed to
Houston where he “did another job.” Additionally, Smith stated
that he helped Knox shave his head in order to stymie Knox’s
impending police line-up.
At trial, the State introduced the testimony of a number of
Knox’s accomplices. George Holland, the admitted getaway driver,
testified that in October 1982, he and Knox discussed robbing a
certain drug store in Galveston. According to Holland, Knox stated
that the robbery would be “a piece of cake” because the pharmacy
did not employ any security cameras. Holland also testified that
he had seen Knox with a small, dark grey .38-caliber semiautomatic
pistol.
According to Holland, he and Knox began to make concrete plans
for the robbery in November 1992. In November, Holland and Knox,
along with two other friends, drove up to Galveston to see if the
pharmacy had installed security cameras. After learning that the
pharmacy had not upgraded its security, the foursome went to drink
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beer and discuss plans. As Holland testified, Knox explained that
he would rob the store employees and Holland would drive the car.
The four then returned to Houston.
Holland testified that the next day, he and Knox again drove
to Galveston. Once the sun went down, the two men drove to the
pharmacy. Holland explained that he waited out in the back parking
lot while Knox went inside. Holland testified that Knox returned
to the car, got on the floorboard, and instructed Holland to get
out of Galveston. Holland stated that he noticed people coming
around the side of the building as he and Knox pulled out of the
parking lot. He also observed three brown pill bottles in Knox’s
hands. As they were leaving, Knox explained that, “The man got
ignorant with me so I had to shoot him.” When Holland asked, “how
bad,” Knox responded that he had killed the man. Holland told Knox
to get out of his car and called Gary Morgan to pick up Knox and
take him to a bus station. Holland then left for Alabama.
Gary Morgan testified that he too planned the robbery with
Knox and that he and his wife accompanied Knox and Holland to
Galveston in order to reconnoiter Joe’s Pharmacy. Morgan further
stated that he picked up Knox after receiving Holland’s phone call.
He testified that Knox had some small brown pill bottles with him,
which they hid in Holland’s car. Morgan also testified that Knox
told him that he had used his gun while committing the robbery and
explained that Knox shot the man after he refused to be taped and
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apparently reached towards his back pocket. Knox also admitted
that he got the drugs from the pharmacist’s assistant. Morgan
testified that Knox gave him some of the cash and pills from the
robbery.
Robert Clark, another of Knox’s friends in Alabama, testified
that Knox discussed robbing a drug store in Galveston. Knox
explained to Clark that he could easily rob the pharmacy and obtain
cash and Class A narcotics. At the time, Clark knew that Knox
carried a .38-caliber semiautomatic pistol.
According to Clark, Knox returned approximately one week later
and told Clark that he had robbed the pharmacy in Galveston. Knox
explained that he tried to tie up an employee but had to shoot him
when the employee reached for his pants pocket. Clark testified
that Knox explained Holland’s role as the driver and told Clark
that they hid the gun at some halfway point. Clark noted that Knox
had some Demerol in little brown bottles.
Kathy Pressletz, Knox’s former roommate, testified that in the
summer of 1981, Knox discussed robbing Joe’s Pharmacy in Galveston
because it would “be easy to knock off.” Pressletz also stated
that Knox owned two guns, “a .38 and a .380.”
On December 5, 1985, the jury convicted Knox of murder in the
course of a robbery, a capital offense under Section 19.03(a)(2) of
the Texas Penal Code. The Texas Court of Criminal Appeals affirmed
the conviction. The Texas courts later denied Knox’s state habeas
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petition.
Knox filed a federal habeas petition in the U.S. District
Court for the Southern District of Texas. The district court
denied the petition but a panel of this Court, on April 19, 1991,
reversed and remanded the case “with directions to grant the writ
of habeas corpus, unless the State of Texas conducts a new penalty
phase within a reasonable time.” Knox v. Collins, 928 F.2d 657,
662 (5th Cir. 1991).
On November 8, 1991, Knox filed a motion asking the district
court to grant his habeas relief because the state had not yet
retried him. The State responded that it was waiting for the
district court to set “a reasonable time” for the retrial to begin.
The district court held that this Court’s order was self-enforcing
and did not require an additional order from the district court.
On February 26, 1992, the court issued an order denying Knox’s
request for habeas relief and requiring the State to begin retrial
within ninety days, which the State did.
On June 22, 1994, a Texas jury again convicted Knox and the
court again assessed the death penalty pursuant to the jury’s
answers to the special issues. The Court of Criminal Appeals
affirmed. Knox v. State, 934 S.W.2d 678 (Tex. Crim. App. 1996).
On June 30, 1997, Knox filed an application with the state court
for writ of habeas corpus. The trial court conducted an
evidentiary hearing and denied the application. The Court of
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Criminal Appeals affirmed the denial.
In February 1999, Knox sought habeas relief in the United
States District Court for the Southern District of Texas. The
district court denied the petition and Knox filed the instant
appeal. The district court granted a Certificate of Appealability
on the issues raised.
II
This petition, filed after April 24, 1996, is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254. Under the AEDPA, we may not issue a writ of habeas
corpus with respect to “any claim that was adjudicated on the
merits in State court proceedings” unless the State court’s
adjudication of the claim resulted in “a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court . . . ; or 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). As the Supreme Court has
recently explained, a decision is contrary to clearly established
Federal law “if the state court arrives at a conclusion opposite to
that reached [by the Supreme Court] on a question of law or if the
state court decides a case differently than [the] Court has on a
set of materially indistinguishable facts.” Williams v. Taylor, —
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U.S.— , 120 S.Ct. 1495, 1523 (2000). We may issue a writ based on
the State Court’s unreasonable application of Federal law only “if
the state court identifies the correct governing legal principle .
. . but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. We presume state court factual findings to
be correct and will defer to these findings “unless they were
‘based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding.’” Chambers v.
Johnson, 218 F.3d 360, 363 (5th Cir. 2000)(quoting 28 U.S.C. §
2254(d)(2)).
III
Knox contends that the district court erred in granting
summary judgment against his six constitutional claims: that the
trial court denied him his Sixth Amendment right to a speedy trial;
that the State violated the Fourteenth Amendment by using false
evidence against him at both the guilt and the punishment phases of
his trial; that the State violated the Eighth Amendment by using
inherently unreliable evidence against him at both phases of his
trial; that his counsel’s deficient performance denied him his
Sixth Amendment right to effective assistance of counsel; that the
State court violated the Sixth Amendment by excusing a prospective
juror on an impermissibly broad basis; and that the State violated
the Fourteenth Amendment by failing to disclose that it reached an
informal plea agreement with Carroll Bernard Smith in exchange for
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Smith’s testimony.
A
Knox argues that the state trial court denied him his Sixth
Amendment right to a speedy trial. As Knox notes, the trial court
did not order a new trial until it received the federal district
court’s February 26, 1992 order requiring the state court to
commence trial within 90 days, eleven months after the Fifth
Circuit’s March 28, 1991 order of remand for a new trial. Knox
contends that this eleven month delay was unreasonable, was
attributable to the state, and prejudiced his ability to defend
himself at trial and at sentencing. According to Knox, the delay
made it impossible for Marion Wilson, an alibi witness and
sentencing mitigation witness, to testify. Knox states that Wilson
could not testify at the second trial because at the time he was at
a Maryland hospital receiving treatment for a blood disorder.
According to Knox, “[h]ad the trial occurred eleven months earlier,
Wilson would have been available to testify.” He suggests that
Wilson would have testified that Knox was working on a Motel 6
construction job in Richmond, Virginia on the date of the murders.
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court
established a four-part balancing test for determining whether a
defendant received a speedy trial within the meaning of the Sixth
Amendment. Under Barker, a court must consider: (1) the length of
the delay; (2) whether the defendant asserted his right; (3) the
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reason for the delay; and (4) the prejudice to the defendant. Id.
at 530. As a threshold inquiry, the petitioner must demonstrate
that the length of the delay is presumptively prejudicial. 407
U.S. at 530. “Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.” Id.
Knox has failed to demonstrate that he has suffered an
unreasonable delay. This Court has previously held that a delay of
ten and one-half months is not presumptively prejudicial. See
United States v. Maizumi, 526 F.2d 848, 851 (5th Cir. 1976). And
while neither Barker nor the Constitution itself defines when a
delay becomes presumptively unreasonable, we have held that “[a]
delay of less than one year will rarely qualify as ‘presumptively
prejudicial’ for purposes of triggering the Barker inquiry.”
Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir. 1994). As we
explained, “[a]bsent extreme prejudice or a showing of willfulness
by the prosecution to delay the trial in order to hamper the
defense, a delay of less than one year is not sufficient to trigger
an examination of the Barker factors.” Id. at 647. (internal
citations omitted).
Nothing in Knox’s petition or elsewhere in the record suggests
that the State willfully delayed Knox’s trial in order to hamper
his defense. Nor has Knox demonstrated “extreme prejudice.”
Although the delay may have prevented Knox from putting Marion
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Wilson on the stand, the record establishes that Wilson could not
have supplied an alibi defense. As the state notes, Wilson
submitted conflicting affidavits, one that provided an alibi for
Knox and another that explained that he could not recall whether
Knox was actually working for him at the time in question.
Moreover, the testimony of other witnesses disproved the
possibility of Knox’s alibi, placed Knox in the Galveston area at
the time of the murder, and stated that Knox committed the offense.
In fact, the State presented an affidavit from the vice-president
of Motel 6 stating that construction on the Richmond, Virginia
Motel 6 did not occur until October 10, 1983, almost one year after
the Joe’s Pharmacy robbery and murder. Under such circumstances,
Knox’s inability to present Wilson’s testimony does not constitute
extreme prejudice. As such, the district court did not err in
granting summary judgment on Knox’s Sixth Amendment speedy trial
claim.
B
The Due Process Clause of the Fourteenth Amendment forbids the
State from knowingly using perjured testimony. Giglio v. United
States, 405 U.S. 150, 153 (1972). In order to prove that the State
has violated the Fourteenth Amendment by relying on such testimony,
the defendant must demonstrate: (1) that a witness for the State
testified falsely; (2) that such testimony was material; and (3)
that the prosecution knew that the testimony was false. Id. at
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153-54.
Knox argues that the State violated the Fourteenth Amendment
by permitting Knox’s ex-roommate, Kathy Pressletz to testify. He
contends that at the first trial, Pressletz lied about four facts
during her testimony: that she had worked as a waitress at a bar
named “Snuffy’s,” that her father was named “James Russell,” that
her father owned the building in which the bar was located, that
Knox had cut her with a knife, sending her to the emergency room at
John Sealy Hospital, and that she did not begin using drugs until
she met Knox. Although Pressletz abandoned the knife story at the
second trial, she reiterated her statements concerning her drug
use, her father, and her employment at Snuffy’s. Knox does not
suggest that Pressletz’s statements regarding her father and
Snuffy’s affected the outcome of his trial, but simply that these
lies demonstrated that Pressletz is a liar and should not have
testified. He concludes that because Pressletz’s testimony played
an instrumental role in corroborating the testimony of other
witnesses, “it undoubtedly played a large role in the jury’s
deliberations at the guilt phase” and thus renders their verdict
untrustworthy.
Although Pressletz may have either lied or mistakenly
testified about the knife wound, her father, and her employment at
Snuffy’s, Knox has not presented any evidence that the State knew
that Pressletz’s testimony was false. Indeed, the state habeas
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court found that the State did not offer “false or perjured
testimony during the trial of [Knox] and that “the State did not
present any testimony from Kathy Pressletz at the trial which it
had good reason to believe would be false.” Because these findings
are reasonable “in light of the evidence presented in the state
court proceeding,” we must defer to the state court’s
determinations. See Chambers v. Johnson, 218 F.3d 360, 363; 28
U.S.C. § 2254(d)(2).
Further, even assuming arguendo that the State knowingly
submitted perjured testimony, Knox has failed to demonstrate that
Pressletz lied about any material fact. Even if Pressletz lied
about her father and her employment – neither of which had any
bearing on Knox’s participation in the murder – a number of other
witnesses corroborated her relevant testimony – i.e. that Knox
often drove by Joe’s pharmacy, that he mentioned that it would be
“easy to knock off” the pharamacy, that he possessed handguns with
the type of ammunition found at the scene of the crime, and that he
threatened to kill her after she testified against him in a prior
hearing. As the Supreme Court explained in Giglio, a
constitutional violation occurs only where “the false testimony
could in any reasonable likelihood have affected the judgment of
the jury.” Id. at 154. As such, the district court did not err
in granting summary judgment against Knox’s Fourteenth Amendment
claim that the State used inherently unreliable evidence against
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him at both phases of his trial.
C
Relatedly, Knox argues that, by relying on Pressletz’s false
testimony, the State also violated the Eighth Amendment’s
prohibition on cruel or unusual punishment. See Johnson v.
Mississippi, 486 U.S. 578 (1988). Because we defer to the state
court’s determination that Pressletz did not testify falsely, we
find this claim to be without merit.
D
Knox alleges that his defense counsel performed so inadequately
that his conduct deprived Knox of the Sixth Amendment right to
effective assistance of counsel. According to Knox, defense
counsel committed the following errors: failure to present an
alibi witness, failure to challenge a death-prone juror for cause,
failure to impeach a prosecution witness, failure to object to the
prosecution’s bolstering of critical witnesses; failure to keep
out evidence of an extraneous offense; and failure to rebut
punishment evidence. Knox insists that, when considered together,
these errors rise to the level of constitutionally deficient
performance.
In order to prove that his attorney’s conduct denied him his
Sixth Amendment right to effective assistance of counsel, Knox
must show both that his counsel’s representation fell below
professional norms and that the deficient performance prejudiced
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the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Our review of counsel’s performance is “highly deferential.” Id.
at 689. As the Supreme Court has explained, “[a] fair assessment
of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from the counsel’s perspective at the time.” Id. Thus,
“the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
strategy.” Id. (internal quotations omitted). Even a deficient
performance does not result in prejudice unless that conduct so
undermined the proper functioning of the adversary process that
the trial cannot be relied upon as having produced a just result.
Id. at 687. The errors alleged by Knox fail to rise to such
levels of either incompetence or prejudice, even when considered
cumulatively. We will discuss each in turn.
First, Knox argues that his trial counsel performed
ineffectively by failing to secure the presence of alibi witness
Marion Wilson at his trial. As we discussed earlier, Wilson
provided inconclusive and contradictory testimony at the first
trial and a number of other witnesses persuasively debunked his
“alibi” theory – that Knox was working in Richmond, Virginia
during the Joe’s Pharmacy robbery and murder. Defense counsel’s
failure to call Wilson to testify suggests a realistic appraisal
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of the implausibility of Wilson’s alibi theory, rather than
deficient performance.
Second, Knox argues that his counsel performed ineffectively by
failing to lodge a for-cause challenge against juror Nancy
Allison, whom Knox describes as “a death-prone prospective juror.”
He notes that Allison’s father was murdered in the course of a
robbery and that she answered that she would not mitigate a
capital sentence and would answer the special questions in a way
that ensured a death sentence. Knox concludes that Allison’s
unwillingness to consider mitigating evidence or to impose a life
sentence because of the possibility of parole rendered her
excludable for cause. See Morgan v. Illinois, 504 U.S. 719
(1992).
As the State points out, however, Allison also evinced pro-
defense views. Allison stated that she would place the burden of
proof on the State to prove its case beyond a reasonable doubt and
that, as a Christian, she would have difficulty imposing the death
penalty. Given these statements, we cannot say that defense
counsel’s failure to challenge Allison for-cause falls “outside
the wide range of professionally competent assistance.” See
Strickland, 466 U.S. at 690.
Third, Knox argues that defense counsel failed to impeach the
testimony of George Holland, Knox’s accomplice and get-away
driver. According to Knox, defense counsel at Knox’s first trial
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successfully impeached Holland by presenting Allen Thompson,
Holland’s cellmate, as a witness. Thompson testified that Holland
intended to get a deal for his testimony, that Holland had a visit
with a person who gave Holland papers that he described as
pertaining to the charges against him.
Knox’s argument is without merit. Thompson’s testimony in the
first trial consisted of little more than speculation and
insinuation. Thompson could not testify as to any evidence of a
deal other than Holland’s vague insinuations and the fact that he
received papers after speaking with somebody. At the first trial,
Thompson testified that he never saw Holland with a member of the
District Attorney’s office nor saw any papers indicating that
Holland had struck a deal in exchange for his testimony.
Moreover, the State correctly points out that Holland testified
that he did not receive such a deal. Defense counsel may simply
have realized that Thompson’s testimony did little to discredit
Holland. A decision not to call such a weak rebuttal witness
certainly does not amount to a breach of professional judgment and
clearly cannot constitute a “breakdown in the adversary process
that renders the results unreliable.” Id. at 687.
Fourth, Knox argues that defense counsel failed to object to the
State’s illegal “bolstering” of its four main witnesses – Morgan,
Smith, Pressletz, and Holland. Knox’s argument is predicated on
the State’s question to each of the four witnesses about whether
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they testified in the second trial as they did in the first. Knox
argues that such bolstering was impermissible because each of the
witnesses had a motive to fabricate at the time of the first
trial. Under Texas law, such statements are not admissible
because they do not constitute relevant rehabilitative evidence.
See Former Tex. R. Cr. Evid. 801(e)(1)(B); Haughton v. State, 805
S.W.2d 405 (Tex. Cr. App. 1990). Specifically, Knox contends that
both Morgan’s and Smith’s desire for plea agreements could have
led them to fabricate their testimony in the first trial and that
Pressletz is an inveterate liar who would have lied at both
trials. Knox also points out that the State mistakenly told the
jury during closing argument that Holland had testified as to the
same facts in both trials although the State made no attempt to
bolster his testimony during their redirect examination.
Although the Texas Rules of Criminal Evidence afforded defense
counsel an opportunity to object to such bolstering, counsel’s
failure to do so does not constitute ineffective assistance of
counsel. Counsel may well have believed that whether the State’s
witnesses testified as to the same facts at the first trial was
irrelevant and that he would have been able to impugn the
witnesses testimony regardless. He may have concluded that the
dangers inherent in objecting -- losing the objection or appearing
obstructionist to the jury -- outweighed the marginal benefit in
preventing the bolstering. Such a calculation was surely the
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defense counsel’s to make. As the Supreme Court explained in
Strickland, “[t]here are countless ways to provide effective
assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.”
Strickland, 466 U.S. at 690.
Fifth, Knox argues that defense counsel failed to prevent the
admission of extraneous evidence. According to Knox, defense
counsel failed to object to the testimony of Carroll Bernard
Smith, Knox’s cellmate, that Knox and an accomplice “did a job”
after the robbery at Joe’s Pharmacy. Knox contends that counsel
should have been aware that Smith would testify as to this “job”
because he did so at the first trial. Counsel’s failure to file
a motion in limine, Knox contends, exposed Knox to “the danger of
being found guilty on the basis of impermissible character-
conformity evidence.”
Although defense counsel could have objected to this statement,
Smith’s passing reference to “a job” was unlikely to greatly
influence the jury. The full context of Smith’s statement
demonstrates that the reference was both cryptic and made in
passing:
Q Did he tell you what he did after he robbed
the drug store?
A Yes, he had somebody waiting outside the
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car, and from there he had this person take
him to a halfway point where he buried the
gun, and from there he had a second party
waiting to take him to South Houston to which
they done another job down there.
Defense counsel’s failure to object to this brief statement may
well have reflected the statement’s insignificance rather than
counsel’s incompetence. Regardless, this error simply does not
raise a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
Lastly, Knox argues that defense counsel failed to present
readily available rebuttal evidence that would have undermined
Pressletz’s testimony at the punishment phase that Knox claimed to
have lynched a man in Vidor, Texas. According to Knox, the
defense counsel’s investigator was prepared to testify that
neither Vidor police records nor newspapers mentioned a lynching
during the time in question.
As Knox points out, the Texas Rules of Criminal Evidence permit
parties to introduce hearsay evidence in order “[t]o prove the
absence of a record, report, statement or entry . . .” Rule
803(10). Nevertheless, the State did not introduce this evidence
in order to prove that Knox had actually lynched a man, only that
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he was the type of dangerous person who would brag about lynching
someone. Because the state clearly did not introduce Pressletz’s
statement in order to prove that Knox actually lynched someone,
defense counsel would have accomplished little by introducing
evidence that no lynching had been reported in Vidor. Thus,
defense counsel’s failure to object did not render his
representation constitutionally defective. Moreover, even if
defense counsel’s error was deficient, we cannot say that such an
error was likely to alter the result of the proceeding. The jury
sentenced Knox not simply on the basis of Pressletz’s testimony
but upon a wealth of testimony that persuasively portrayed Knox as
a dangerous killer, the man responsible for the Joe’s Pharmacy
robbery and murder.
Knox has failed to demonstrate either that his counsel committed
errors “so serious that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment,” 466 U.S. at 687, or that his
“conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.” Id. As
such, the district court did not err in entering summary judgment
against Knox’s Strickland claims.
E
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme
Court held that a State infringes upon a capital defendant’s Sixth
and Fourteenth Amendment rights when it excuses for cause those
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members of the venire who express conscientious objections to
capital punishment. Id. at 521-22. The State may not challenge
a juror for cause “based on his views about capital punishment
unless those views would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45
(1980).
Knox argues that the State violated the rule of Witherspoon by
challenging Regina George, a prospective juror, simply because she
expressed conscientious objection to the death penalty. Knox
points out that George also stated that she could put aside her
personal beliefs and vote for the death penalty if the evidence so
required.
The state court found that “the State met its burden to show
that prospective juror[] Regina George . . . would have been
substantially impaired in [her] ability to honestly answer [the]
special issues.” This conclusion is supported by the record.
When the State asked whether she would be unable “to follow the
instructions of the Judge if that require[d] [her] to assess the
death penalty,” George answered, “Right.” Similarly, when asked
“Doesn’t matter what evidence we put on . . . you will not vote
for death no matter what?” George responded, “Right.” In light of
this evidence, we must defer to the state court’s factual
findings, see Chambers v. Johnson, 218 F.3d at 363, and conclude
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that the state court properly excluded George as a juror.
F
Finally, Knox contends that the State violated the Due Process
Clause of the Fourteenth Amendment when the State failed to
disclose that it had struck an implicit plea agreement with
Carroll Bernard Smith. Knox alleges that Smith, his cellmate,
reached an implicit deal with the State and that the State should
have both disclosed the deal to Knox and instructed Smith to
testify truthfully about the deal. Because Smith provided
important corroborating testimony, both as to Knox’s role in the
murders and his future dangerousness, Knox concludes that he was
materially prejudiced by his inability to impeach Smith’s
testimony. These arguments are without merit.
The Due Process Clause requires that the State disclose any
material exculpatory information to the defense. Brady v.
Maryland, 373 U.S. 83 (1963). Evidence is material within the
meaning of Brady when there is a reasonable probability that the
result of the proceeding would have been different. United States
v. Bagley, 473 U.S. 667, 682 (1985). The Due Process Clause also
forbids the State from knowingly using perjured testimony where
there is a reasonable likelihood that such testimony will affect
the verdict. Giglio, 405 U.S. at 153-54.
The state court found that the State did not make a deal with
Smith in exchange for his testimony, did not fail to disclose an
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offer to Smith, and did not offer false testimony. In fact, the
only evidence to support Knox’s claim is Smith’s statement that
although he did not reach an explicit deal with the State, “I
guess it’s more like a trust thing. I tell them what I knew and
hope like heck that when the time came that I did go to court, the
would recognize it and they would not so much recognize, but . .
. appreciate the help.” Smith never testified that the State told
him to trust them, only that he unilaterally chose to do so.
The record supports the state court’s factual conclusion that
the State did not offer a plea agreement to Smith. Smith’s
statement that he hoped that the State would recognize his
assistance does not necessarily demonstrate that the State even
subtly offered him a deal. The record reflects a unilateral hope
on Smith’s part rather than a deal, whether implicit or explicit,
between Smith and the State. Moreover, to the extent that this
determination also involved a conclusion of law -- that Smith’s
unilateral action did not amount to a deal, whether implicit or
explicit, -- it is well-supported by the law of this Circuit. As
we held in Goodwin v. Johnson, 132 F.3d 162, 187 (5th Cir. 1998),
“a nebulous expectation of help from the state . . . is not Brady
material.” See also United States v. Nixon, 881 F.2d 1305, 1311
(5th Cir. 1989)(holding that a witness’s impression that the
government would help him obtain a pardon in exchange for his
testimony in the absence of a “specific promise to help” was not
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Brady material).
Because the record supports the state court’s factual
determinations and because the state court reasonably relied upon
the law of this Circuit, we must defer to their conclusions.
Thus, the district court did not err in rejecting Knox’s Due
Process challenge.
IV
For the above reasons, we AFFIRM the judgment of the district
court and DENY Knox’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
AFFIRMED.
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Knox v. Johnson
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