Newton v. Dretke - Case Law

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 20, 2004
For the Fifth Circuit
___________________________
Charles R. Fulbruge III
Clerk
No. 03-20925
___________________________

FRANCES ELAINE NEWTON,
Petitioner - Appellant,

VERSUS

DOUG DRETKE, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent - Appellee.

Appeal from the United States District Court
for the Southern District of Texas

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner Frances Elaine Newton was convicted of capital murder in Texas and sentenced to

death. She now seeks a certificate of appealability from the district court’s denial of habeas corpus

relief. Because Newton has failed to make a substantial showing of a denial of a constitutional right,

we deny her application for COA.

Newton was convicted and sentenced to death in October 1988 for the capital offense of

murdering her young daughter in the same criminal transaction as the murders of her husband and

young son. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and

sentence. Newton v. State, No. 70,770, 1992 WL 175742 (Tex. Crim. App. June 17,

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1992)(unpublished opinion). The Supreme Court denied Newton’s petition for writ of certiorari,

Newton v. Texas, 509 U.S. 926 (1993), and denied rehearing, Newton v. Texas, 509 U.S. 945

(1993). Newton filed a state application for writ of habeas corpus. The trial court entered findings

of fact and conclusions of law recommending denial of relief. The Court of Criminal Appeals adopted

the trial court’s findings and denied relief. Ex Parte Newton, Application No. 47,025-01 (Tex. Crim.

App. Dec.6, 2000).

Newton filed her federal habeas petition in December 2001, raising five claims for relief. In

August 2003, the district court granted the Director’s motion for summary judgment, denying habeas

relief and denying a COA. Newton timely appealed. Newton now seeks a COA from this court.

II.

The Court of Criminal Appeals summarized the relevant facts of the crime in its opinion on

direct appeal:

On the evening of April 7, 1987 at 8:27 p.m., Deputy R.W. Ricks was dispatched to
an apartment complex at 6126 West Mount Houston in response to a possible
shooting. Appellant was at the location, along with her cousin, Sondra Nelms. Lying
on a couch in appellant's apartment, Ricks found the body of Adrian Newton,
appellant's husband, with a bullet wound to the head, and the bodies of Alton Newton,
seven years old, and Farrah Newt on, twenty-one months old, appellant's children,
both of whom had died from gunshot wounds to the chest. There were no signs of
forced entry into the apartment, nor any signs of a struggle.

Earlier the same evening, between 7:00 and 7:30 p.m., appellant arrived in an
automobile at Sondra Nelms' residence at 6524 Sealy. Appellant asked Sondra to
come over to appellant's apartment to visit. Before leaving Sondra's house, appellant
took a blue bag out of her car and put it in an abandoned house which belonged to her
parents, located next door at 6520 Sealy. Upon arrival at appellant's apartment, they
found appellant's husband and two children dead.

Later that evening, homicide detective Michael Talton spoke with Nelms, who took
him to the house at 6520 Sealy. Inside he found a blue bag containing a blue steel
Raven Arms .25 automatic, which he turned over to a crime scene officer.

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The gun's owner, Michael Mouton, had loaned the gun to his cousin, Jeffrey Frelow,
five or six months prior to the murders. Jeffrey Frelo w had known appellant since
junior high school, and began to have a sexual relationship with her approximately one
to two months prior to the murders. Frelow identified the gun and indicated that he
kept it in a chest of drawers in his master bedroom. Because she often did Frelow's
laundry, appellant had access to the drawers and to the gun.

On April 8, 1987, appellant accompanied Detective Michael Parinello during a search
of her apartment, where she pointed out the clothing she wore the day of the murders.
Parinello collected the clothing and delivered it to the Department of Public Safety
Crime Laboratory to test for possible gunpowder residue.

Sterling Duane Newton, the brother of the deceased Adrian Newton, was also living
at the apartment where the murders occurred, and was present on the evening of April
7, 1987. When Sterling arrived at the apartment at 5:30 or 6:00, appellant was there.
Appellant requested that Sterling leave the apartment to give her some t ime alone
with Adrian to talk over their marital problems. Sterling remained at the apartment for
approximately an hour to an hour and a half before leaving.

Ramona Bell, a long time acquaintance of the deceased, Adrian Newton, had been
dating him for some time prior to April 7, 1987. Bell knew that appellant and Adrian
were on bad terms. Bell testified that on April 7, 1987, she called Adrian from work
at approximately 6:45 p.m., and appellant answered the telephone. Bell then spoke to
Adrian for about fifteen minutes. During the telephone conversation Adrian told Bell
that he was tired and was going to go to sleep, but not until appellant left, because he
did not trust appellant.

Alphonse Harrison, a friend of Adrian Newton, had seen him earlier in the day on
April 7, 1987, and the two made plans to get together that night. Harrison testified
that he called Adrian between 7:00 and 7:15 that evening, and appellant answered the
telephone. Harrison never got to talk to Adrian because appellant put him on hold and
left him holding for possibly 45 minutes. Harrison hung up but continued to call back
and finally got an answer around 9:00 p.m., when appellant's cousin answered the
telephone and told him that Adrian had been shot.

Claudia Chapman was working for a State Farm Insurance agent when she met
appellant in September 1986. Appellant came in for automobile insurance, and
Chapman talked to her about purchasing life insurance. On March 18, 1987, appellant
purchased a fifty thousand dollar life insurance policy on herself, another on her
husband, Adrian, and a third on her daughter, Farrah. According to the insurance
applications, appellant was the primary beneficiary on the latter two policies, which
became effective immediately. Both appellant and her mother had made claims on the
policies as of the time of the trial of this cause.

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A ballistics expert established that the pistol recovered by Officer Talton was the
murder weapon. A forensics expert for the State established that nitrites were present
on appellant's skirt. In the expert's opinion, the nitrites came from gunpowder residue,
and were consistent with someone shooting a pistol in the lower front area of the
skirt. He testified that another possible source of nitrites would be fertilizer. A
forensic expert for appellant confirmed that nitrites could come from fertilizer.

Additional facts necessary to the issues will be presented in the sections that follow.

III.

Newton filed the instant Section 2254 application for habeas relief after the April 24, 1996

effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). Her application is

therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336(1997). Under the AEDPA,

a petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C.

§ 2253(c)(2). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless

a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court

of appeals. . . .’” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003) (citing 28 U.S.C. §2253(c)(1))

. “The COA statute requires a threshold inquiry into whether the circuit court may entertain an

appeal.” Id. (citing Slack v. McDaniel, 529 U.S. 473, 482 (2000); Hohn v. United States, 524 U.S.

236, 248 (1998)). 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). To make such a showing, a petitioner

“must demonstrate that the issues are debatable among jurists of reason; that a court could resolve

the issues [in a different manner]; or that the questions are adequate to deserve encouragement to

proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citation and internal quotation

marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner,

and the severity of the penalty may be considered in making this determination. Fuller v. Johnson,

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114 F.3d 491, 495 (5th Cir. 1997).

The analysis “requires an overview of the claims in the habeas petition and a general

assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s

application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s

resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “‘[t]he

petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.’” Id. at 1040. (citing Slack v. McDaniel 529 U.S. 473,

484).

IV.

Newton raises two issues in this Application for Certificate of Appealability (COA): (1) the

trial court denied petitioner her 6th Amendment right to be represented by counsel of her choice when

it denied her motion for continuance so Newton could substitute retained counsel; and (2) the Texas

special issues did not permit the jury to consider and give effect to Newton’s mitigating evidence of

youth, good character, cooperation with police, unfaithful /drug dealing spouse, and impoverished

background.

Newton claims first that she was denied her Sixth Amendment right to be represented by the

attorneys of her choice because, although the trial court granted her motion to substitute counsel, it

denied her request for a continuance to allow the newly substituted counsel time to prepare for trial.

In November 1987, Newton complained to the trial court by letter regarding her

dissatisfaction with her appointed counsel prior to trial. The letter requested that the court order an

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investigation of her case. One month later, Newton filed a Motion to Dismiss Court Appointed

Counsel and Appoint New Counsel. In the motion, Newton again complained that appointed counsel,

Ronald Mock, had no contact with her and had taken no action to research Newton’s case. The trial

court denied the motion. In January 1988, the court appointed Catherine Coulter to serve as Mock’s

co-counsel. Newton did not re-urge her motion. In a letter file-stamped August 1988, Newton’s

mother also complained about Mock’s performance.

Four days before trial and after the twenty-fourth day of voir dire had been completed,

Newton retained counsel. She contended that before this date her family had been unable to raise

sufficient funds to hire counsel. She requested a continuance to allow retained counsel time to

prepare. The motion did not specify how much time her retained attorneys were requesting for trial

preparation. After a hearing, the court granted the motion to substitute counsel but denied the

motion for a continuance. When the court did not grant the continuance, the retained attorneys

withdrew and Mock and Coulter represented Newton at trial.

The Sixth Amendment right to counsel in a criminal proceeding has “long been construed to

include a criminal defendant’s qualified right to ret ain counsel of the defendant’s own choosing.”

United States v. Hughey, 147 F.3d 423, 429 (5th Cir. 1998)(citations omitted). The right is not

absolute. Id. Rather, what is required is that the defendant be given a fair or reasonable opportunity

to obtain particular counsel. United States v. Paternostro, 966 F.2d 907, 912 (5th Cir. 1992). When

a defendant has been given a reasonable opportunity to obtain counsel of his choice, the court retains

broad discretion in evaluating a request for a continuance. Ungar v. Sarafite, 376 U.S. 575, 590-91

(1964). Accordingly, the issue Newton raises is not simply whether the district court abused its

discretion in denying her motion for a continuance. The issue is the effect the denial of the

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continuance had on her right to counsel. When a denial of a continuance is the basis for a habeas

petition, the petitioner must show an abuse of discretion that was so arbitrary and fundamentally

unfair as to violate the constitutional principles of due process. Skillern v. Estelle, 720 F.2d 839, 850

(5th Cir. 1983). Accordingly, to prevail, a petition must show that the failure to grant a continuance

harmed the defense. United States v. Pollani, 146 F.3d 269, 272 (5th Cir. 1998).

In this circuit, several factors are examined when reviewing a state court’s denial of a motion

for continuance that a defendant claims interfered with her fair and reasonable opportunity to obtain

particular counsel:

(1) the length of the requested delay; (2) whether the lead counsel has an associate
who is adequately prepared to try the case; (3) whether other continuances have been
requested and granted; (4) the balanced convenience or inconvenience to litigants,
witnesses, opposing counsel and the court; (5) whether the requested delay is for a
legitimate reason, or whether it is dilatory and contrived; (6) whether there are other
unique factors present.

Gandy v. Alabama, 569 F.2d 1318, 1324 (5th Cir. 1978). Both the state habeas court and the district

court evaluated these factors as applied to Newton’s claim and found no denial of due process. We

agree with the analysis of both courts..

Petitioner’s Motion for Continuance did not specify the length of the delay she requested; the

court had already spent twenty-four days in death penalty voir dire and the trial was set to begin three

days later; the substitute counsel was unprepared to try the case; eighteen months had passed since

Newton was indicted, and ten months had passed since Newton had complained about her appointed

counsel. In addition, Newton cannot show that failure to grant the continuance harmed the defense.

Although Newton raised claims of ineffective assistance of counsel in the district court which were

found to be without merit, she does not seek COA on that ground. Newton raises no claim of

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prejudice in her application to this court.

The facts of this case would probably not support a claim of abuse of discretion in denying

the motion for continuance if this were a direct appeal. See United States v. Silva, 611 F.2d 78, 79

(5th Cir.1980)(no abuse denying continuance day before trial to substitute retained counsel for

appointed counsel - length of delay not specified); United States v. Dilworth, 524 F.2d 470, 472 (5th

Cir. 1975) (No abuse denying motion for continuance day before scheduled trial, when after 13

months, defendant declared that he was not satisfied with his attorney, who he had discharged, and

new counsel was engaged on another matter for several weeks); United States v. Casey, 480 F.2d

151, 152 (5th Cir. 1973)(no abuse denying continuance when counsel withdrew 20 days before trial

and defendant failed to hire substitute attorney); United States v. Hollis, 450 F.2d 1207, 1208 (5th

Cir. 1971)(no abuse denying continuance when attorney sought to withdraw 5 days before trial and

defendant sought delay to retain private counsel.)

More particularly, when Newton raised this claim on direct appeal and on state habeas, the

Texas court’s denial of relief was neither contrary to, nor an unreasonable application of, federal law.

Accordingly, the district court was precluded from granting federal habeas relief. Because the district

court’s assessment was not debatable, this claim does not warrant a COA.

Newton also argues that the Texas special issues on deliberateness and future dangerousness

gave the jury no vehicle for expressing a reasoned response to her mitigating evidence that she was

“(a) young; (b) impregnated as a teenager; (c) o ffended by the philandering of her husband; (d)

married to a drug addict; (e) cooperative with the police investigation; (f) churchgoing; and (g) the

daughter of a supermarket meat wrapper who had eleven children.” She also argues that the jury was

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given a nullification instruction, like that given in Penry v. Johnson, 532 U.S. 782, 798-801

(2001)(“Penry II”), that is error per se.

The district court denied relief because Newton did not submit mitigating evidence of the

same character or magnitude as that presented in Penry I, Penry v. Lynaugh, 492 U.S. 302

(1989)(“Penry I”), and because the evidence she did submit could be considered under the existing

special issues. The court did not discuss the claimed Penry II (nullification) violation.

Newton’s Penry I claim is without merit. In this circuit, in order to establish a Penry I

violation, a petitioner must demonstrate that the proffered evidence is (1) constitutionally relevant

mitigating evidence that was (2) beyond the effective reach of the jurors. Madden v. Collins, 18 F.3d

304, 308 (5th Cir. 1994). Although the district court discussed the first part of the test concluding

that the proffered evidence was not constitutionally relevant, we need not address that issue. This

case can clearly be disposed of on the second prong, because the evidence Newton presented was

clearly within the scope of the existing special issues. See Graham v. Collins, 506 U.S. 461, 475-76

(1993)(holding that Texas special issues permitted jurors to consider mitigating evidence of youth,

family background and positive character under second issue of future dangerousness); Beazley v.

Johnson, 242 F.3d 248, 260 (5th Cir. 2001)(Good character evidence can be given effect under future

dangerousness question); Marquez v. Collins, 11 F.3d 1241, 1248 (5th Cir. 1994)(jealousy over

wife’s infidelity can be considered under future dangerousness); James v. Collins, 987 F.2d 1116,

1121-22 (5th Cir. 1993)(evidence of impoverished and abusive family history, redeeming character

traits, cooperation with law enforcement and family ties adequately considered in special issues).

The Texas Court’s determination that Newt on’s mitigating evidence could be considered

under the existing special issues was neither incorrect nor unreasonable under AEDPA standards and

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therefore the district court correctly denied relief. No COA should issue in these circumstances.

Newton’s claim under Penry II is similarly without merit as the record reflects that no nullification

instruction was given at her trial.

For the reasons stated above, we deny Newton’s Application for COA.

DENIED.