United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-70009
DONALD ANTHONY MILLER,
Petitioner-Appellee-Cross-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant-Cross-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue is whether to grant a certificate of appealability
(COA) to Donald Anthony Miller on any of three claims for habeas
relief denied by the district court. See 28 U.S.C. §§ 2253, 2254.
Miller was convicted in Texas state court of capital murder and
sentenced to death. Federal habeas relief was conditionally
granted by the district court on one claim, but only for
sentencing: that, pursuant to Brady v. Maryland, 373 U.S. 83
(1963), the State violated due process by withholding exculpatory
evidence (Brady-claim). For all claims for which it denied relief,
including the same Brady-claim as applied to guilt/innocence, the
district court denied, sua sponte, a COA.
The State appeals; Miller seeks a COA in order to cross-
appeal. For the latter, the following COA requests are now at
issue.
First, Miller claims the district court erred by limiting to
sentencing the granted habeas relief on his Brady-claim. He
maintains the same evidence-withholding also entitles him to relief
for the guilt/innocence phase of his trial.
In addition, Miller makes two ineffective assistance of
counsel claims. He maintains his trial counsel provided
ineffective assistance, violative of the Sixth Amendment, by
failing to object: (1) to a non-testifying co-conspirator’s
confession admitted through testimony of another; and (2) to the
State’s closing argument.
A COA is DENIED for each of the three issues. A subsequent
opinion will address the State’s appeal from the habeas relief
granted for sentencing, pursuant to the Brady-claim.
I.
In early 1982, Michael Mozingo and Kenneth Whitt, traveling
furniture salesmen, were approached by Miller, Eddie Segura, and
Danny Woods, who feigned interest in purchasing furniture. After
Mozingo and Whitt were lured to Segura’s house to deliver the
furniture, they were robbed, bound, and gagged. Miller, Segura,
and Woods drove Mozingo and Whitt to Lake Houston in Harris County,
Texas, where they were murdered by Miller and Woods.
2
In October 1982, Miller was convicted for capital murder, and
sentenced to death, for murdering Mozingo while in the course of
committing, and attempting to commit, aggravated robbery. Segura
testified against Miller; Woods did not testify. (Before Miller’s
trial, Woods had pleaded guilty to murder; Segura, to aggravated
robbery. Woods was sentenced, before Miller’s trial, to two life
sentences. Segura was sentenced, after Miller’s trial, to 25 years
in prison.)
The Texas Court of Criminal Appeals affirmed. Miller v.
State, 741 S.W.2d 382 (Tex. Crim. App. 1987) (en banc). The
Supreme Court denied a writ of certiorari. Miller v. Texas, 486
U.S. 1061 (1988).
Miller requested state habeas relief, presenting numerous
claims. The state district court entered findings of fact and
conclusions of law and recommended denial of relief on each claim.
Ex Parte Miller, No. 350303-A (232d Dist. Ct., Harris County, Tex.
7 May 1997). The Court of Criminal Appeals adopted those findings
and conclusions and denied relief. Ex Parte Miller, Application
No. 36140-01 (Tex. Crim. App. 1998) (unpublished order).
In February 1999, Miller requested federal habeas relief,
presenting five claims. Following an evidentiary hearing, the
district court conditionally granted habeas relief for the Brady-
claim, but only for the punishment phase. Miller v. Johnson, H-99-
0405 at 24 (S.D. Tex. 2 February 2004) (USDC Opn.). For the other
3
claims, including the Brady-claim as applied to guilt/innocence,
the district court granted the State’s summary judgment motion and
denied, sua sponte, a COA for those claims. The district court
stayed its judgment pending appeal.
II.
At issue is only the preliminary question of whether Miller
can cross-appeal. For that purpose, three COA requests are at
hand. The state appeals the conditional habeas relief and opposes
Miller’s COA requests. With this opinion, we consider – and deny
– the COA requests. In a subsequent opinion,we will consider the
remaining issue: the State’s appeal from the relief granted for
sentencing, based on the Brady-claim.
Miller’s 28 U.S.C. § 2254 habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
See, e.g., Penry v. Johnson, 532 U.S. 782, 792 (2001). Under
AEDPA, Miller may not appeal the denial of habeas relief on an
issue unless he first obtains a COA from either the district, or
this, court. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack
v. McDaniel, 529 U.S. 473, 478 (2000). Under Federal Rule of
Appellate Procedure 22(b)(1), the district court must first decide
whether to grant a COA request before one can be requested here.
4
In ruling on Miller’s habeas petition, the district court denied,
sua sponte, a COA for each issue for which it denied relief.
This COA requirement applies to the issue Miller has labeled
only a cross-appeal, and for which he does not request a COA.
Nevertheless, under Federal Rule of Appellate Procedure 4(a)(3), a
notice of cross-appeal is treated as a notice of appeal; and, under
Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal
constitutes a COA request, if no separate request is filed. (The
State correctly responds to the issue as a COA request.) Miller
also seeks a COA on two ineffective assistance of counsel (IAC)
claims, based on trial counsel’s failing to object: (1) to
introduction of a non-testifying co-conspirator’s extra-judicial
confession admitted through testimony of another; and (2) to the
State’s closing argument. (Miller’s statement of the issues in his
COA request identifies as a ground for COA the denial of his Sixth
Amendment rights concerning the limited cross-examination of the
key prosecution witness, Segura. Miller did not brief that issue.
Instead, he briefed the second IAC claim listed above (which is not
identified as a ground for COA in Miller’s statement of issues).
Accordingly, we do not address the cross-examination issue.)
To obtain a COA, Miller must “make a substantial showing of
the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); see
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529 U.S. at
483. In order to do so, Miller must demonstrate “reasonable
5
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further”. Miller-El, 537 U.S. at 336 (quoting Slack, 529
U.S. at 484). In determining whether to grant a COA, we are
limited, inter alia, “to a threshold inquiry into the underlying
merit of [Miller’s] claims”. Id. at 327. “This threshold inquiry
does not require full consideration of the factual or legal bases
adduced in support of the claims.” Id. at 336. Instead, our
analysis “requires an overview of the claims in the habeas petition
and a general assessment of their merits”. Id. This being a death
penalty case, “any doubts as to whether a COA should issue must be
resolved in [Miller’s] favor”. Hernandez v. Johnson, 213 F.3d 243,
248 (5th Cir.), cert. denied, 531 U.S. 966 (2000).
For purposes of the requisite threshold-inquiry, we are
mindful that, in ruling on the merits, the district court was
required to defer to the state court’s adjudication of Miller’s
claims on both questions of law and mixed questions of law and
fact, unless the state court’s “decision ... was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court”. 28 U.S.C. §
2254(d); see Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000),
cert. denied, 532 U.S. 1039 (2001). A state court’s decision is
contrary to clearly established federal law if it “reaches a legal
6
conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme
Court based on materially indistinguishable facts”. Miniel v.
Cockrell, 339 F.3d 331, 337 (5th Cir. 2003), cert. denied, 540 U.S.
1179 (2004).
Likewise, for this threshold-merits-inquiry, we are mindful
that, in ruling on the merits, the district court was required to
defer to the state court’s factual findings unless they “resulted
in a decision that was based on an unreasonable determination of
the facts in [the] light of the evidence presented in the State
court proceeding”. 28 U.S.C. § 2254(d)(2). The state court’s
factual findings are “presumed to be correct”, and Miller has “the
burden of rebutting the presumption of correctness by clear and
convincing evidence”. 28 U.S.C. § 2254(e)(1).
Finally, for our COA threshold-merits-inquiry, we must
consider the elements, discussed infra, for the underlying Brady
and IAC claims. Obviously, the COA requests must be considered
against the backdrop of those elements.
A.
Miller’s Brady-claim was not raised in state court. Following
an evidentiary hearing, the district court ruled the claim was not
procedurally barred because the cause and prejudice exception was
satisfied; the suppressed evidence was not reasonably available to
Miller, and the suppression prejudiced him for sentencing. USDC
7
Opn. at 20, 24. For purposes of ruling on this COA request, we do
not address whether the Brady-claim is procedurally barred.
Obviously, were we to hold now that it is barred, that holding
would resolve the merits issue being appealed by the State, an
issue that awaits resolution in our subsequent opinion on the
habeas relief granted Miller for sentencing based on the Brady
claim. As discussed infra, even assuming for purposes of this
opinion that the Brady-claim is not procedurally barred, a COA for
that claim on guilt/innocence is denied.
The well-known elements for a Brady-claim are: (1) the
prosecutor suppressed evidence, (2) favorable to the defense, (3)
and material to guilt or punishment. Brady, 373 U.S. at 87.
Evidence is material if there is “a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different”. United States v. Bagley,
473 U.S. 667, 682 (1985) (emphasis added). Concerning Miller’s
guilt/innocence-Brady-claim, at issue for COA purposes is the
district court’s ruling, which restated the test for
Brady—materiality in a different, but similar, form. It ruled
that, even if the State had not suppressed evidence, “there is a
reasonable probability that the outcome of the guilt-innocence
phase would not change”. USDC Opn. at 24 (emphasis added).
The murders occurred in February 1982; Miller was convicted
that October. During a pre-trial motion, the prosecutor argued
8
that Brady did not require his disclosing impeachment evidence, but
only evidence that was exculpatory to Miller’s guilt. The trial
court did not require disclosure of additional evidence. Miller
contends the State suppressed three items of material evidence:
(1) statements by Ray McCall in 5 and 20 May 1982 interviews with
the State; (2) statements by Archie Morris in a 5 May 1982
interview with the State; and (3) affidavits of four persons who
did not testify.
McCall, the brother of Segura’s then girlfriend, Monica
McCall, visited Miller’s home the night of the murders. Outside
Miller’s presence, Segura and Woods described the night’s events to
McCall. Later that night, Miller paid McCall to go to the murder
site, in order to confirm the bodies were still there. McCall was
unable to find the bodies, but returned with Miller and found them.
Investigator’s notes from interviews with McCall were
suppressed. In notes from the 5 May interview, an investigator
acknowledged McCall’s not having told the truth on prior occasions.
The district court found these notes raised questions about
McCall’s credibility and were important because McCall corroborated
testimony by Segura, who had been present at the murders and was
the State’s key witness. USDC Opn. at 22. In the 20 May
interview, however, McCall stated that, on the night of the
murders, Woods and Segura said nothing about them, but admitted
only to the robbery. The district court noted McCall’s statements
9
during this interview differed from his trial testimony and could
have been used for impeachment purposes. Id.
Morris (Ray and Monica McCall’s grandfather) was the source
for the .38 caliber handgun used in the murders. Prosecutor’s
suppressed notes include Morris’ statement that he owned only a .22
caliber handgun and had not given it to Miller. At trial, however,
Morris testified that, just prior to the murders, Miller had
borrowed from him the .38 caliber handgun used in the murders.
While not specifically addressing Morris’ contradictory statements,
the district court found the suppressed evidence undermined
Segura’s credibility, as well as the value of McCall and Morris’
corroborating testimony. Id. at 24.
In the suppressed affidavits from four who did not testify
(Robert White, Tammie Jones, Tommy Holsinger, and Melissa Spears),
each affiant told police they overheard Woods brag about the
murders. The district court found the affidavits indicated Woods,
not Miller, killed both victims and that Segura was armed. Id. at
23.
Referring primarily to McCall and Morris’ statements, and
applying Brady’s above-described three-part test, the district
court ruled: (1) the State withheld evidence; (2) it was favorable
to Miller; and (3) it was material, but only to the penalty phase
of Miller’s trial. USDC Opn. at 26. In its earlier ruling on the
prejudice element for the procedural bar, the district court held:
10
although Miller’s “complicity in the killings is not seriously
disputed”, Miller “challenge[d] his portrayal as the ringleader and
shooter, a role that warranted conviction for capital murder and
imposition of the death sentence”. Id. at 23. In ruling on the
Brady-claim, the district court noted: “The analysis for [Brady-]
materiality tracks that of prejudice” when ruling on whether to
apply a procedural bar. Id. at 26. It held: “the newly disclosed
evidence raises significant doubt about the outcome of the trial,
particularly the punishment assessed”; and “the State’s refusal to
disclose material evidence ... vitiated the sentence imposed”. Id.
In the end, for Miller’s Brady-claim, the district court granted
conditional habeas relief for sentencing, but not guilt/innocence.
Id. at 42.
According to Miller, McCall and Morris’ suppressed statements
were inconsistent with their trial testimony; and, had they been
disclosed, they could have been used to impeach them. Miller
maintains the four affidavits raise doubts about his being the
shooter because they raise the possibility that Segura was the
shooter instead. Along this line, Miller seems to contend that all
of the suppressed evidence relied upon by the district court in
granting conditional habeas relief for sentencing is material to
guilt/innocence. He asserts: (1) evidence, such as Morris’ prior
inconsistent statement, would have impeached Morris’ testimony that
Miller obtained the .38 caliber handgun from him just before the
11
murders; and (2) evidence, particularly White’s affidavit, (a)
suggested Miller did not shoot the handgun and (b) impeached
Detective Clampitte’s testimony suggesting that affidavits by four
individuals supported Miller’s being the shooter. According to
Miller, with the testimony of Morris and Detective Clampitte
impeached, the State would have had to rely primarily on testimony
of Segura and McCall (both of whom had obvious reasons to implicate
Miller, rather than themselves) that Miller shot Mozingo. Miller
maintains it is reasonably probable that, had the evidence been
produced, the jury would have questioned McCall and Segura’s
motives and credibility enough to find Miller did not shoot
Mozingo, nor should he have anticipated his death, as discussed
below. He contends therefore, it is reasonably probable the jury
would not have found him guilty of the capital murder of Mozingo.
In this regard, consistent with the district court’s earlier-
quoted ruling restating the test for Brady-materiality, Miller
claims the district court required him to negate evidence showing
there is a reasonable probability the guilt/innocence outcome would
have remained the same, rather than requiring him to demonstrate by
a preponderance of the evidence a reasonable probability the
outcome would have been different, as required by Kyles v. Whitley,
514 U.S. 419 (1995) (requiring demonstration of reasonable
probability that result of proceeding would have differed had
12
evidence been disclosed). Miller seeks a remand to allow the
district court to apply the correct standard.
According to Miller, when the correct materiality standard is
applied, suppression of evidence that he was not the shooter would
have been material under Texas’ law of the parties. See TEXAS PENAL
CODE § 7.02(b) (co-conspirators guilty of crimes committed during
conspiracy if result should have been anticipated). Miller
contends: had the jury been presented with evidence that Woods and
Segura shot the victims, it is reasonably probable at least one
juror would not have found that the State proved Miller caused
Mozingo’s death; and, because the State charged Segura only with
aggravated robbery, the jury would not have found unanimously that
Miller should have anticipated Mozingo’s death.
In opposing a COA, the State makes the following response.
Reasonable jurists could not debate the ruling that the suppressed
evidence is not material to guilt/innocence. Even if Miller’s
trial counsel had been aware of Morris’ prior inconsistent
statement and had impeached him, there was ample other evidence
supporting Miller’s guilt. McCall and Segura testified
consistently to Miller’s involvement in the robbery and shootings.
Likewise, the four affidavits were not material. The affiants
heard Woods bragging about the crimes; in many ways, the affidavits
support Miller’s guilt and do not contradict Segura and McCall’s
testimony. Simiarily, given the extensive evidence of Miller’s
13
guilt, he cannot demonstrate McCall’s suppressed statement is
material for guilt/innocence. The State’s final assertion is that
even assuming the suppressed evidence was material (for sentencing
purposes) to finding Miller guilty as a direct participant, it is
not material (for guilt/innocence purposes) to finding him guilty
as a party. See TEXAS PENAL CODE § 7.02.
We agree. Again, for Brady purposes, evidence is material if
there is a reasonable probability that, had the evidence been
disclosed, the result would have been different. Bagley, 473 U.S.
at 682. If, during a conspiracy to commit a felony, another is
committed, even without intent to commit that other felony, all
conspirators are guilty under Texas law of the committed felonies
if the result was one that “should have been anticipated as a
result of the carrying out of the conspiracy”. TEXAS PENAL CODE §
7.02(b). Given the testimony by Segura and McCall, among others,
reasonable jurists could not debate that the suppressed evidence is
not material, under Brady, to Miller’s participation in the robbery
conspiracy. Given the uncontroverted, overwhelming evidence of his
involvement in that conspiracy and the nature of the robbery,
reasonable jurists could not debate that: (1) Miller should have
anticipated Mozingo and Whitt’s deaths; and (2) under Texas Penal
Code § 7.02(b), the suppressed evidence is not material to Miller’s
being found guilty for the capital murder of Mozingo. Restated,
reasonable jurists could not debate that there is no reasonable
14
probability that the guilt/innocence verdict would have been
different, had the evidence been produced.
B.
The other two COA requests are premised on IAC claims. As
discussed, a threshold-merits-inquiry is part of the calculus for
deciding whether to grant a COA; part of that inquiry involves
considering the elements for the underlying claim for which a COA
is requested. In order to have been granted habeas relief on his
IAC claims (by either the state, or district, court), Miller was
required to demonstrate both: (1) “counsel’s performance was
deficient”; and (2) “the deficient performance prejudiced [his]
defense”. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel’s performance is deficient if it falls “below an
objective standard of reasonableness”. Id. at 688. In that
regard, there is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance”. Id.
at 689. Deficient performance vel non is judged against the law
existing at the time of the claimed IAC. Id. at 689-90.
To establish prejudice, Miller was required to demonstrate
(similar to the Brady-materiality requirement) “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”.
Id. at 694. “A reasonable probability is a probability sufficient
15
to undermine confidence in the outcome.” Id. As discussed below,
each COA request is resolved by addressing the prejudice prong.
1.
The first IAC claim concerns not objecting to the
introduction, through McCall’s testimony, of Woods’ extra-judicial
confession to McCall on the night of the murder and outside
Miller’s presence. (As discussed, McCall visited Miller’s home the
night of the murders and was paid by Miller to search for the
bodies that had been left at the lake; when McCall couldn’t find
them, he returned to the murder scene with Miller, where they
located them.) McCall testified at length that, while he was at
Miller’s house, Woods confessed to him that Woods, Segura, and
Miller committed the murders. In this regard, Segura participated
in most, if not all, of the conversation. (Again, Segura
testified.) Part of McCall’s testimony follows.
Q. Did Danny Woods tell you about any other
shots being fired after he fired with the
shotgun?
A. Yeah, he said that Donny [Miller] had shot
them with a pistol.
Q. And did he tell you how many times Donny
Miller shot his pistol?
A. No, he didn’t specify the times.
Q. But, during that initial conversation, he
[Woods] did indicate to you that he shot the
shotgun and that Miller shot the pistol, is
that correct?
A. Correct.
16
Q. And at that time, Mr. McCall, did Eddie
Segura agree with this recitation of facts
that Danny Woods was giving to you?
A. Right.
(Emphasis added.)
In seeking a COA, Miller claims: this use of Wood’s
confession violated Miller’s Sixth Amendment Confrontation Clause
rights; and, concomitantly, failing to object on that ground
constituted IAC. Miller urges application of Lee v. Illinois, 476
U.S. 530 (1986), for the proposition that the Confrontation Clause
limits evidence the State may introduce based on exceptions to the
hearsay rule.
In opposing a COA, the State, relying upon Saddler v. State,
320 S.W.2d 146 (Tex. Crim. App. 1959), contends that Woods’
statements are not inadmissable hearsay because they are
declarations of one conspirator made in furtherance of the
conspiracy. Because, according to the State, Woods’ statements
were admissible, failure by Miller’s counsel to object to their
introduction could not be deficient performance. In the
alternative, the State contends that, even if counsel’s performance
was deficient, there was no prejudice, given the overwhelming
evidence against Miller.
The state habeas court held Miller’s counsel was not
ineffective for failing to object to Woods’ statements, presented
through McCall, because they were admissible as statements against
17
interest. The district court relied upon a different basis,
ruling: “McCall’s testimony does not violate the Confrontation
Clause because the other co-defendant, Segura, testified to
essentially the same facts”. USDC Opn. at 35. The district court
reasoned that, even if there were error, it would have been
harmless, because Miller had the opportunity to cross-examine
Segura, one of the two witnesses who testified to the same
information. Id. (For deficient performance vel non, the district
court refused, properly, to apply Lee, because it was decided after
Miller’s trial. Id. at 33 n.8.)
Extra-judicial confessions can violate the Confrontation
Clause because there is no opportunity to cross-examine the
declarant. Cf. Crawford v. Washington, 541 U.S. 36 (2004) (out-of-
court testimonial statements barred by Confrontation Clause unless
witness is unavailable and defendant had opportunity to cross-
examine). For example, in Bruton v. United States, 391 U.S. 123
(1968), the Supreme Court found a Confrontation Clause violation,
despite a limiting jury instruction, when a co-defendant’s
incriminating extra-judicial confession was admitted through an
investigator’s testimony.
The primary function of the Confrontation Clause is to protect
the right of cross-examination, Douglas v. Alabama, 380 U.S. 415,
418 (1965); and, of course, one of the functions of cross-
examination is to allow the jury to assess the credibility of the
18
witness. See Mattox v. United States, 156 U.S. 237, 242-43 (1895).
The district court noted: “Despite spanning numerous pages, the
transcript of [Woods’] confession is remarkably devoid of even a
single objection by [Miller’s] counsel”. USDC Opn. at 34.
Similarly, it was “troubled by trial counsel’s failure to object to
the prosecutor’s elicitation of Woods’ confession ....” Id. at 36.
As noted, and notwithstanding its expressed concerns about
counsel’s performance, the district court held there was no
Confrontation Clause violation because Miller was able to cross-
examine another witness, Segura, who provided similar testimony.
Presumably, for this reason, the district court found counsel’s
performance was not deficient for failing to object to Woods’
confession. In any event, we need not address deficient
performance and prejudice vel non, because this COA request can be
resolved by examining the prejudice prong. See Strickland, 466
U.S. at 687 (must show both deficient performance and prejudice).
Again, the district court ruled that, even if admission of Woods’
confession was error, it was harmless, because Miller was able to
cross-examine Segura, whose testimony corroborated Woods’
confession.
Miller does not address prejudice, however. Instead, he seeks
a remand to district court for a determination of prejudice.
Arguably, the failure to brief the prejudice prong constitutes
abandonment of this COA request. In any event, based on Miller’s
19
Brady-claim COA request, the following contention appears to be
implied: had Woods’ confession not been admitted, Miller would not
have been found guilty and, in the alternative, certainly would not
have received the death penalty.
Reasonable jurists would not debate that, in the light of the
other overwhelming evidence against Miller, there is not a
reasonable probability that: (1) the determination of guilt would
have changed; and (2) Miller would not have received the death
penalty. For example, McCall testified that Miller: admitted to
him that he shot the two victims; had McCall go to the murder
scene; and had McCall return to Morris the handgun used in the
murders.
2.
The other IAC claim concerns failing to object on two grounds
to the State’s closing argument in the punishment phase. Relying
on Payne v. Tennessee, 501 U.S. 808 (1991), and apparently
addressing Strickland’s prejudice prong, Miller maintains juries in
death penalty cases must be permitted to view the defendant as a
uniquely individual human being. (The district court correctly
refused to apply Payne to the deficient performance prong because
Payne was decided “nearly 10 years after the trial”. USDC Opn. at
36 n.13.) Miller contends: (1) the prosecutor’s victim-impact
argument (a) was not based on evidence presented at trial and (b)
deprived the jury of the ability to view Miller as an individual;
20
and (2) the closing argument invited the jury to compare Miller’s
worth to the victims’ in deciding whether to impose the death
penalty, a type argument that was, according to Miller, condemned
by the Supreme Court in Zant v. Stephens, 462 U.S. 862 (1983).
In opposing a COA, the State asserts: the challenged comments
were permissible; and Miller’s reading of Payne is overly broad.
In the alternative, the State contends that, even if the comments
were improper, they did not rise to a level that rendered the
proceeding fundamentally unfair. See Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974) (relevant question is whether prosecutor’s
comments “so infected the trial with unfairness as to make the
resulting conviction a denial of due process”). The State
maintains: Payne’s relevant holding is that the Eighth Amendment
does not bar per se victim-impact testimony or prosecutorial
argument based on it, a holding that supports the State’s, rather
than Miller’s, position, Payne, 501 U.S. at 824; and Payne holds
that a prosecutor may argue victim impact to counteract mitigating
evidence presented by a defendant, as was done by Miller, id.
at825. The State asserts Miller, for COA purposes, has not
sufficiently demonstrated as unreasonable, under AEDPA, the state
court’s decision that the prosecutor’s arguments did not deny
Miller his due process right to a fair trial.
Victim-impact evidence that is “so unduly prejudicial that it
renders the trial fundamentally unfair” deprives a capital
21
defendant of due process. Payne, 501 U.S. at 825. As discussed
infra, reasonable jurists would not debate that counsel’s
performance was not prejudicial. Accordingly, for COA purposes, we
need not address whether that performance was deficient.
On direct appeal, concerning due process vel non, the Texas
Court of Criminal Appeals examined the State’s punishment phase
closing argument; and, “while [it found] that some of [the
comments] might be considered highly improper ... they were not so
prejudicial as to ... deprive[] [Miller] of a fair and impartial
trial”. Miller, 741 S.W.2d at 393. For Miller’s state habeas IAC
claim, based on counsel’s failure to object to those comments, the
state habeas court’s finding, which the Court of Criminal Appeals
adopted, was that Miller failed to demonstrate counsel’s failure to
object was either deficient performance or prejudicial.
a.
The first of the two challenged segments follows:
And think to yourself as you look at this and
think of this case; what does Marsha Mozingo
tell her kids? “Mommy, why isn’t Daddy here?
Mommy, is Daddy ever going to come back?
Mommy, why did that bad man have to kill
Daddy? Mommy, my birthday is coming up, will
Daddy be there? Mommy, where does somebody go
after he’s been killed? Mommy, help me
understand; Mommy, tell me the truth, Mommy,
are there very many people in the world like
Donald Miller? Mommy, will anyone else ever
have to die because of Donnie Miller?”
The district court stated: the prosecutor speculated about
how one of the victims’ wives would explain the killing to their
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child, despite having elicited no testimony about the impact of the
killings on the families. USDC Opn. at 36. Although it
characterized the comments as “immature and constitut[ing]
pandering to the victims’ families”, the district court held they
did not violate Strickland’s “but for” standard. Id. (Again,
Strickland requires, inter alia, showing “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different”. Strickland,
466 U.S. at 694. (emphasis added).)
Although the district court stated there was no evidence about
the impact of Mozingo’s death on his family, there was testimony
from which the impact could reasonably be inferred by the jury.
Segura testified that, while Mozingo was in Segura’s car en route
to being murdered, Mozingo asked Woods, Miller, and Segura to look
at the picture of his family in his wallet. Likewise, McCall
testified: Segura told him Mozingo asked the men not to kill him
“because he had a wife and a kid at home”. And Mozingo’s wife
testified they had two children.
In this regard, there was sufficient evidence about Mozingo’s
family for the jury to consider the victim impact argument.
Reasonable jurists would not debate the ruling that, had these
comments not been made, there is no reasonable probability that the
death penalty verdict would have been different.
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b.
Part of the other challenged comments follow:
Is it going to be your vote for saving the
life of a murderer or saving the innocent life
of a person such as Kenneth Whitt and Michael
Mozingo? ... I would like for you, before
anybody votes no to this case, make sure you
understand what it would be like for some
victim in the future that might be with this
Defendant in the future, under the same or
similar circumstances, put yourself in their
position and decide whether you feel
conscientiously you could say no to the
questions knowing you would be risking some
other person’s life ....
In denying habeas relief on the challenged comments, the
district court noted the context of the above-quoted comments, but
did not address them specifically. USDC Opn. at 35. As discussed
above, the district court held the closing argument was not
prejudicial for Strickland purposes. Id. at 36. Again, based on
this record, reasonable jurists could not debate that, had these
comments not been made, there is no reasonable probability that the
death penalty verdict would have been different.
The same conclusion is compelled when the combined effect of
the contested comments is considered. Reasonable jurists would not
debate that there was no Strickland prejudice.
III.
For the foregoing reasons, a COA is DENIED for each of the
three COA requests. A subsequent opinion will address the State’s
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appeal from the conditional habeas relief granted Miller for his
Brady-claim, as it concerns sentencing.
COA DENIED
25
Miller v. Dretke
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-03-24
Citations: 404 F.3d 908
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