UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-40240
_______________________
WILLIAM HAMILTON LITTLE,
Petitioner-Appellant,
v.
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee,
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
December 10, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
William Hamilton Little was tried and convicted of
capital murder by a Texas jury on April 5, 1985. Having exhausted
his state court remedies, Little unsuccessfully sought federal
habeas relief in the district court pursuant to 28 U.S.C. § 2254.
Little’s primary contention in this petition, among several
asserted, concerns the trial court’s failure to introduce the
“confession” of another man who claimed to have committed the
murder to which Little also confessed. Finding no basis for the
issuance of a certificate of probable cause (“CPC”), this court
denies Little’s 28 U.S.C. § 2253 motion.
I. INTRODUCTION
In the early morning hours of December 3, 1983, Marilyn
Peter was sexually assaulted, strangled, and brutally stabbed at
her residence in Liberty County, Texas. That same morning, a man
meeting Little’s general description was seen in the doorway of
Peter’s home.
Later that day, when appliance repairmen came to Peter’s
home to install her clothes dryer, they found blood on the doorjamb
and heard a baby crying. The repairmen entered the home to find
Peter’s two-year-old child crying on the kitchen counter. The
kitchen and living room were covered with blood. Marilyn Peter lay
dead in the living room, her body ravaged by multiple stab wounds.
Two men confessed to the murder of Marilyn Peter. On
December 4, 1983, Michael Raymond Thomas confessed to the murder
while interviewing with Officers John Stapleton and Robert Dunn.
On December 6, 1983, following his arrest on a parole violation,
Little also confessed to the murder. The two were indicted
separately on February 8, 1984.
A. Little’s Trial
The indictment against Thomas was ultimately dismissed,
and Little stood trial for the slaying. During the course of his
trial, Little’s counsel offered Thomas’s confession into evidence
for “state of mind,” but not for the truth of the matter asserted.
The trial judge rejected the proffer as hearsay. Near the close of
Little’s case-in-chief, the Thomas confession was offered again.
During a hearing on the admissibility of the confession, the trial
court heard evidence bearing on the reliability of the confession.
Although Thomas was called to testify, he invoked his Fifth
Amendment rights. At the close of the hearing, the trial court
sustained the State’s hearsay objection again.
Two other events that occurred during Little’s trial are
germane to this appeal. First, the prosecutor made several
allegedly improper statements during the course of his closing
argument.1 Little’s trial counsel chose not to object to the
statements. Second, Dr. James Grigson testified during the
sentencing portion of Little’s trial. While Little’s trial counsel
did cross-examine Dr. Grigson, no rebuttal psychiatric testimony
was offered.
B. Little’s Direct and Collateral Attacks
Little was convicted of the murder of Marilyn Peter and
sentenced to death. On direct appeal, Little challenged several
aspects of the voir dire, alleged the evidence was insufficient to
support his conviction, and maintained that his confession and
certain other evidence were obtained in violation of his
constitutional rights. See Little v. State, 758 S.W.2d 551, 552
1
Little cites three “improper” comments made by the prosecution to the
jury: (1) that the prosecutor, personally, did not believe Little’s self-defense
claims, (2) that the jury should “trust” the trial judge’s ruling regarding the
voluntariness of Little’s confession, and (3) that Little had attempted to rape
another woman on a previous occasion -- a material misstatement.
(Tex. Crim. App. 1988).2 Little’s conviction and sentence were
affirmed. See id. at 567.
In his state habeas petition, Little finally asserted
many of the arguments he now presses upon this court. Little
alleged, inter alia, that Thomas’s confession was improperly
excluded, that the State suppressed or destroyed exculpatory
evidence, that the performance of Little’s trial counsel was
deficient, and that Dr. Grigson’s testimony was improperly
admitted. Adopting the voluminous findings of the state district
court, the Texas Court of Criminal Appeals denied Little’s
petition.
C. Little’s 28 U.S.C. § 2254 Petition
In 1989, Little filed the federal habeas petition
underlying the present appeal. Following an evidentiary hearing
covering the reliability of Thomas’s confession and certain of
Little’s ineffective assistance claims, the magistrate judge
entered findings of fact, conclusions of law, and a recommendation
rejecting each of the petitioner’s claims. The district court
adopted the report and recommendation and denied Little’s motion
for a CPC. Pursuant to 28 U.S.C. § 2253(c), Little now requests
that this court grant his application for a CPC and review his
petition on the merits.
2
On direct appeal, Little did not challenge the exclusion of Thomas’s
confession, did not allege ineffective assistance of trial counsel, did not claim
that prosecutors had violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963), and did not argue that the admission of Dr. Grigson’s testimony
constituted a violation of the Eighth and Fourteenth Amendments.
II. ANALYSIS AND DISCUSSION
A. Standard for CPC Issuance
“In an appeal from a request for habeas relief, we review
a district court’s findings of fact for clear error and issues of
law de novo.” Moody v. Johnson, 139 F.3d 477, 480 (5th Cir. 1998).
Because Little’s habeas request predates passage of the
Antiterrorism and Effective Death Penalty Act, the issuance of a
CPC is a jurisdictional prerequisite to appellate review of his
habeas petition. See Washington v. Johnson, 90 F.3d 945, 949 (5th
Cir. 1996); see also Fed. R. App. P. 22(b). To obtain a CPC, a
petitioner must “make a substantial showing of the denial of a
federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct.
3383, 3394 (1983) (internal quotations and citations omitted). A
petitioner can meet this burden by demonstrating that “the issues
[presented] 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.” Id. at 893 n.4, 103 S.Ct. at 3394-95 n.4 (internal
quotations, emphasis, and citations omitted). The nature of the
penalty in a capital case is a “proper consideration in determining
whether to issue a [CPC], but the severity of the penalty does not
in itself suffice to warrant the automatic issuing of a
certificate.” Id. at 893, 103 S.Ct. at 3394-95. With these
standards in mind, the court will now address each of Little’s
contentions in turn.
B. Improper Exclusion of Thomas’s Confession
Little maintains that the trial court’s exclusion of
Thomas’s confession violated the due process clause of the
Fourteenth Amendment. Little’s due process claim rests on two
separate, but related, theories. First, Little contends that the
trial court’s failure to conduct an evidentiary hearing regarding
the reliability of Thomas’s confession violated due process, citing
Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973), and
Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150 (1979). Next, Little
argues that the exclusion of the Thomas confession violated due
process. Both arguments prove unavailing.
Little has procedurally defaulted on his first due
process theory. When the ground upon which the petitioner relies
for habeas relief was not exhausted in state court and state
procedural rules would bar subsequent presentation of the argument,
this court may not consider the claim absent “cause” and
“prejudice”, neither of which exceptions is argued here. See Muniz
v. Johnson, 132 F.3d 214, 221 (5th Cir. 1998); Nobles v. Johnson,
127 F.3d 409, 422-23 (5th Cir. 1997). The issue of reliability of
Thomas’s confession was not raised at trial. Further, in state
habeas proceedings, Little did not argue that the trial court’s
failure to conduct an evidentiary hearing violated due process. He
asserted instead only that the exclusion of the confession amounted
to an unconstitutional deprivation of due process. Therefore,
under Tex. Code Crim. P. Ann. art. 11.071 § 5(a), Little would not
be permitted to pursue habeas relief on this theory in a successive
state petition. Absent proof of cause and prejudice or a
miscarriage of justice3 -- showings the petitioner does not make --
Little is barred procedurally from pursuing his argument that the
trial court should have conducted a hearing regarding the
reliability of Thomas’s confession.
Even if Little’s claim regarding the alleged lack of an
evidentiary hearing were not procedurally barred, Chambers and
Green neither embody the constitutionally mandated hearing proposed
by Little nor demand the admission of Thomas’s confession. In
Montana v. Egelhoff, the Supreme Court explained,
[T]he holding of Chambers -- if one can be discerned from
such a fact-intensive case -- is certainly not that a
defendant is denied “a fair opportunity to defend against
the State’s accusations” whenever “critical evidence”
favorable to him is excluded, but rather that erroneous
evidentiary rulings can, in combination, rise to the
level of a due process violation.
518 U.S. 37, 53, 116 S. Ct. 2013, 2022 (1996). Indeed, even the
Chambers Court placed limits on the consequences of its holding:
In reaching this judgment, we establish no new principles
of constitutional law. Nor does our holding signal any
diminution in the respect traditionally accorded to the
States in the establishment and implementation of their
own criminal trial rules and procedures. Rather, we hold
quite simply that under the facts and circumstances of
3
See Gray v. Netherland, 518 U.S. 152, 162, 116 S. Ct. 2074, 2080
(1996); Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991) (“In
all cases in which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in
a fundamental miscarriage of justice.”); see also Calderon v. Thompson, --- U.S.
---, ---, 118 S. Ct. 1489, 1503 (1998) (describing miscarriage of justice
analysis).
this case the rulings of the trial court deprived
Chambers of a fair trial.
410 U.S. at 302-03, 93 S. Ct. at 1049 (emphasis added). Thus, as
this court has twice recognized, Chambers and Green stand for the
limited proposition that “certain egregious evidentiary errors may
be redressed by the due process clause.” Barefoot v. Estelle, 697
F.2d 593, 597 (5th Cir. 1983) (“We think that Green is limited to
its facts . . . .”); see also Maness v. Wainwright, 512 F.2d 88, 91
(5th Cir. 1975) (recognizing factual limits on Chambers holding).
Even if Chambers and Green provide a rule of decision
relevant to this case, that rule turns on the existence of a
confession that bears “persuasive assurances of trustworthiness.”
Chambers, 93 S.Ct. at 1047, 1049. Thomas’s confession provided no
such assurance. First, contrary to the petitioner’s assertions,
the state trial court did conduct a limited evidentiary hearing on
the admissibility of Thomas’s confession. During the course of
this testimony, the court was made aware of Thomas’s confinement in
a mental institution following his confession, his subsequent
confession to the assassination of President John F. Kennedy, his
denial of responsibility for the Peter murder under hypnosis, and
the finding, by a jury, that Thomas was not competent to stand
trial. The court also knew that the indictment of Thomas for
capital murder had been dismissed on the state’s motion. Moreover,
aspects of Thomas’s confession were inconsistent with the forensic
evidence.4 The trial court was able to observe Thomas’s halting
invocation of his Fifth Amendment privilege and consequent refusal
to testify at Little’s trial. All of these factors support the
trial court’s hearsay exclusion of the Thomas confession5 and
critically distinguish the nature of Thomas’s “confession” from the
reliable confessions that are the linchpin of Chambers and Green.
C. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is governed
by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
To prevail on an ineffective assistance claim, a petitioner must
show both deficient performance by counsel and prejudice to the
defense as a result of the deficient performance. See id. at 687,
104 S. Ct. at 2064. Counsel’s performance is deficient if it falls
below an objective standard of reasonableness. See id. at 688, 104
S. Ct. at 2064. Our review of counsel’s performance is highly
deferential, with a strong presumption that the performance was
reasonable. See id. at 689, 104 S. Ct. at 2065. Deficient
performance is prejudicial only upon a showing that but for
counsel’s errors, there is a reasonable probability that the
ultimate result would have been different and that confidence in
4
In particular, Thomas claimed that he sexually assaulted Peter after
he killed her. The bruising on the victim clearly established, however, that the
sexual assault occurred prior to death. Furthermore, the knife Thomas confessed
to using was too short to inflict the wounds found on Peter’s body.
5
Although the state habeas court and the district court both examined
evidence not available to the trial court when making the reliability
determination, this court need not examine this cumulative evidence in order to
reject Little’s due process claim. Suffice to say, the newly examined forensic
and other evidence does not support Thomas’s confession and, in fact, undermines
Little’s actual innocence argument.
the reliability of the verdict is undermined. See United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). The effectiveness of
counsel is a mixed question of law and fact reviewed de novo by
this court. See Moody, 139 F.3d at 483.
Little makes several allegations of deficient performance
by trial counsel which affected the ultimate result of his trial
and sentencing. First, Little maintains that counsel’s failure to
cite Chambers and Green at trial in support of the admission of
Thomas’s confession constituted ineffective assistance of counsel.
Second, Little claims that Dr. Grigson was inadequately impeached
by counsel during the sentencing phase of Little’s trial.
Moreover, Little argues that counsel’s failure to offer rebuttal
psychiatric testimony at sentencing prejudiced the ultimate outcome
of the proceeding. Last, Little contends that counsel’s failure to
object to allegedly improper closing arguments by the prosecutor
amounted to ineffective assistance of counsel.
This court finds no merit in any of the petitioner’s
ineffective assistance claims. Based on the prior determination
regarding the propriety of the exclusion of Thomas’s confession, no
prejudice can arise from counsel’s failure to cite Chambers or
Green to the trial court.6 This court can find no fault in the
district and state habeas courts’ factual determination that
Little’s counsel “vigorously cross-examined” Dr. Grigson, a finding
6
Little’s ineffective assistance claim on this ground is also
procedurally barred based on his failure to assert the claim in state habeas
proceedings. See Muniz, 132 F.3d at 221; Nobles, 127 F.3d at 422-23.
adequately supported by the trial transcript. The failure of
Little’s trial counsel to object to allegedly improper remarks made
by the prosecution during closing argument was not so prejudicial
as to undermine confidence in the reliability of the verdict.7
Similarly, counsel’s decision not to request a psychiatric exam
pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985),
and offer rebuttal psychiatric testimony during sentencing
constituted a reasonable trial strategy. See Williams v. Collins,
16 F.3d 626, 634 (5th Cir. 1994) (finding trial counsels’ decision
not to offer rebuttal psychiatric testimony during sentencing phase
of trial reasonable).8 Thus, Little has failed to illuminate any
ineffective assistance claims that would necessitate the issuance
of a CPC.
D. Suppression or Destruction of Brady Evidence
In Brady v. Maryland, the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
7
The remarks made by the prosecution were not such a “crucial,
critical, [or] highly significant factor” that a reasonable probability existed
that the verdict would have been different had the prosecution not made the
statements. Lowery v. Estelle, 696 F.2d 333, 342 (5th Cir. 1983); see also
Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988) (discussing standard for
habeas relief based on improper prosecution argument).
8
The mere failure to request a psychiatric exam, without offering the
exam as evidence, cannot support Little’s deficient performance claim. The only
potential use of this strategy during the sentencing phase would be to bolster
the cross-examination of the prosecution’s psychiatric expert. Because this
approach risks potential waiver of the defendant’s Fifth Amendment rights, the
refusal to adopt it is not an unreasonable trial strategy. See, e.g., Buchanan
v. Kentucky, 483 U.S. 402, 422-23, 107 S. Ct. 2906, 2917-18 (1987). Moreover,
the decision would not support an ineffective assistance claim absent proof that
the lack of an exam, standing alone, prejudiced Little’s defense. Little has
neither argued nor supported these contentions, particularly since his counsel’s
cross-examination was not deficient.
either to guilt or punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at
1196-97. To establish a Brady claim, a habeas petitioner must
demonstrate that (1) the prosecution suppressed evidence, (2) the
evidence was favorable to the petitioner, and (3) the evidence was
material. See United States v. Ellender, 947 F.2d 748, 756 (5th
Cir. 1991) (citations omitted). “[E]vidence is material only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682, 105
S. Ct. 3375, 3383 (1985). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. (internal quotations omitted). However, “materiality does not
require demonstration by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in the
defendant’s acquittal.” Kyles v. Whitley, 514 U.S. 419, 434, 115
S. Ct. 1555, 1566 (1995). A court must examine the suppressed
evidence collectively in a materiality inquiry; the allegedly
suppressed evidence is not considered individually. See id. at
436, 115 S. Ct. at 1567.
Little maintains that the prosecution failed to disclose
the knife Thomas confessed to using to murder Peter, bloody clothes
seized from Thomas during the Peter investigation, the test results
of a handprint found on a truck near Peter’s home, and skin
scrapings found beneath Peter’s fingernails. Little also claims
that exculpatory evidence was allegedly lost or destroyed by the
Liberty County Police Department.
Little’s Brady claim is untenable. First, his factual
assertions that evidence was suppressed were rejected by the state
habeas court, and we are bound by that finding. The record
indicates that Little’s counsel received, prior to trial, Texas
Department of Public Safety reports on several pieces of evidence
Little now claims were withheld. Second, the reports fail to offer
support for any of Little’s exculpatory theories.9 Moreover, the
magistrate judge ordered additional testing on several available
pieces of allegedly exculpatory evidence. As before, the new round
of testing failed to uncover any evidence tending to exculpate
Little or corroborate Thomas’s confession.10 Little’s conclusory
allegations regarding the alleged destruction of exculpatory
material fail to show that the state, in bad faith, destroyed any
evidence with knowledge of its exculpatory value. See Arizona v.
Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 337 (1988);
California v. Trombetta, 467 U.S. 479, 486-91, 104 S. Ct. 2528,
2533-35 (1984). Accordingly, Little has failed to show that the
9
The Department of Public Safety testing showed that the “bloody”
handprint on Peter’s truck was not actually blood and that the blood on Thomas’s
knife was not human. Although the blood on Thomas’s clothing did match Peter’s
type, Thomas and Peter had the same blood type, O-positive. Therefore, the
presence of O-positive blood on Thomas’s clothing would not have exculpated
Little.
10
In fact, the results of a newly conducted DNA profile on sperm from
the victim’s rectal swab indicated that Little could not be excluded as a
possible source. As the magistrate noted, “Based on these tests, the analysis,
like the previous [Department of Public Safety] analysis, is either inconclusive
or not favorable to the Petitioner.”
prosecution suppressed potentially exculpatory evidence or that the
evidence allegedly withheld would have had a material impact on any
phase of Little’s trial.
E. Admission of Dr. Grigson’s Testimony
In habeas actions, this court does not sit to review the
mere admissibility of evidence under state law. See Peters v.
Whitley, 942 F.2d 937, 940 (5th Cir. 1991). However, a state trial
court’s evidentiary rulings will mandate habeas relief when errors
are so extreme that they constitute a denial of fundamental
fairness. See Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir. 1987).
Thus, only when the wrongfully admitted evidence has played a
crucial, critical, and highly significant role in the trial will
habeas relief be warranted. See Andrade v. McCotter, 805 F.2d
1190, 1193 (5th Cir. 1986).
Dr. Grigson’s testimony regarding Little’s potential for
future dangerousness, based on a hypothetical set of facts, was
properly admitted by the trial court. Little argues that the
testimony of Dr. Grigson was so unreliable that its mere admission
violated due process. In Barefoot v. Estelle, the Supreme Court
discussed the admission of psychiatric expert testimony during the
sentencing phase of a capital trial. See 463 U.S. at 896-906, 103
S. Ct. at 3396-401. The Barefoot Court addressed the same issues
raised by Little regarding predictions of future dangerousness with
respect to the testimony of Dr. Grigson -- the same expert that
testified during Little’s sentencing hearing. Of particular note,
the Court considered the propriety of basing an expert opinion on
a hypothetical question, see id. at 903-04, 103 S. Ct. at 3399-400,
and the asserted accuracy of Dr. Grigson’s prediction of future
dangerousness, see id. at 904-05, 905 n.11, 103 S. Ct. at 3400-01,
3401 n.11.
Dismissing the petitioner’s claim, the Barefoot Court
reinforced the general admissibility of expert testimony buttressed
against counsel’s ability to cross-examine the purported expert and
offer rebuttal expert testimony and the jury’s ultimate
determination of the appropriate weight to afford the testimony.
See id. at 898-99, 103 S. Ct. at 3397. The petitioner attempts to
distinguish Barefoot by attacking the reliability of Dr. Grigson’s
expert testimony and arguing the inadequacy of trial counsel’s
sentencing hearing strategy. These efforts prove fruitless. Dr.
Grigson’s testimony at Little’s hearing was substantially similar
to the offer approved by the Supreme Court in Barefoot. See id. at
905 n.11, 103 S. Ct. at 3401 n.11. Furthermore, the courts have
previously found that the representation provided by Little’s trial
counsel was adequate, particularly with respect to Dr. Grigson’s
testimony at the sentencing hearing.11 As such, Little’s due
process claim must fail.
IV. CONCLUSION
11
The state and federal habeas courts both agreed that counsel’s cross-
examination of Dr. Grigson was adequate and that his decision not to present
psychiatric testimony was a reasonable trial strategy.
Finding the issues presented by the petitioner fail to
meet the standards applicable for the issuance of a CPC, we deny
the motion.
DENIED.