UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-11345
__________________
JEFFREY EUGENE TUCKER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
February 16, 2001
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner Jeffrey Eugene Tucker (Tucker), convicted of
capital murder in Texas and sentenced to death, appeals the denial
of federal habeas relief. He raises several issues, including
ineffective assistance of counsel, presentation of false testimony
by the State, and evidentiary error. We affirm.
I. Factual and Procedural History
On July 10, 1988, Tucker noticed a newspaper advertisement listing
a late model pickup truck and travel trailer for sale. Wilton Humphreys
(Humphreys) and his wife had placed the advertisement. Tucker called
and made inquiries to Mrs. Humphreys with respect to the truck and
trailer. The next morning, Tucker stole two checks from his brother and
used the proceeds to purchase a .38 caliber gun and ammunition from a
pawn shop.
Tucker placed another telephone call to the Humphreys and arranged
to meet them at their home in Granbury, Texas. Tucker identified
himself to the Humphreys as J.D. Travis. It is undisputed that Tucker
drove to the Humphreys’ home with the intent to rob them of their truck.
Sometime during his drive to their home, he stopped and fired the gun.
After taking a test drive with Humphreys as a passenger, Tucker drove
to town, ostensibly to finalize the sale at a local bank.
According to Tucker’s confession, upon arriving at the bank parking
lot, he retrieved his firearm and aimed it at Humphreys. Tucker
informed Humphreys that he was “taking the truck and trailer and . . .
would let him out eventually down the road when [he] felt it was a
reasonable place to let him out . . . .” After driving approximately
twenty miles, Tucker pulled over on a country road, exited the vehicle,
and instructed Humphreys to do the same. Tucker then observed Humphreys
re-enter the vehicle through the passenger’ side door. While Humphreys
was attempting to shut the driver’s side door, Tucker wrested it open
and shot Humphreys in the face and chest. After shooting Humphreys,
Tucker pulled him from the cab of the truck and drove away, running over
Humphreys’ legs.
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Three days after killing Humphreys, Tucker was apprehended in the
stolen truck after a high speed chase in New Mexico. Tucker confessed
both orally and in writing to shooting Humphreys. In the confessions,
he asserted that although he had intended to steal the truck, he had not
intended to shoot Humphreys.
The physical evidence tends to corroborate much of Tucker’s
confession. A portion of the inside door handle from the driver’s side
of the truck was recovered at the crime scene. The medical examiner
testified that Humphreys had been shot three times (once in the face and
twice in the chest area, the latter two were fatal gunshot wounds).
Humphreys’ legs were broken, and there were tire tracks on his trousers.
However, the medical examiner testified that Humphreys had received a
blunt force trauma to the back of his head before the fatal gunshot
wounds. Tucker’s story does not account for this wound.
In October of 1989, Tucker was convicted of capital murder in
Parker County, Texas. The jury answered the two special issues
affirmatively, and pursuant to Texas law the trial court assessed
punishment of death by lethal injection. The Court of Criminal appeals
affirmed his conviction and sentence in an unpublished opinion on June
9, 1993. Tucker filed an application for state habeas relief in April
of 1997, and the state trial court issued findings of fact and
conclusions of law recommending that relief be denied.1 The Texas Court
1
Previously, in 1994, Tucker had filed a motion for
appointment of counsel in federal court after attempts to obtain
appointed counsel in state court had failed. The federal district
court appointed counsel but limited counsel’s representation to
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of Criminal Appeals denied relief based on those findings and
conclusions.
On November 3, 1998, Tucker filed a petition for habeas corpus in
federal district court, which commenced the instant proceedings. He
filed an amended petition on January 4, 1999. In September, the
district court denied his petition in an unpublished opinion and granted
his motion for a certificate of appealability. Tucker now appeals.
II. ANALYSIS
A. WHETHER AEDPA VIOLATES ARTICLE III
Tucker argues that the Antiterrorism and Effective Death Penalty
Act (AEDPA) violates Article III.2 More specifically, he argues that,
as interpreted by this Court in Drinkard v. Johnson, 97 F.3d 751, 769
claims that had been raised on direct appeal, i.e., exhausted
claims. Because the Texas legislature enacted a law providing
indigent applicants appointed counsel to pursue state habeas corpus
relief, this Court ordered the habeas proceeding dismissed without
prejudice. See Tucker v. Scott, 66 F.3d 1418 (5th Cir. 1995).
Tucker then brought his 1997 state habeas action.
2
The pertinent part of the statute, 28 U.S.C. § 2254, reads as
follows:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim–
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States . . . .
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(5th Cir. 1996), the AEDPA standards violate Article III by forcing
federal judges to defer to a state court’s view with respect to federal
constitutional rights. In Drinkard, this Court held “that an
application of law to facts is unreasonable only when it can be said
that reasonable jurists considering the question would be of one view
that the state court ruling was incorrect.” 97 F.3d at 769. Tucker
complains of this formulation of the “unreasonable application” rule.
Since the filing of Tucker’s opening brief, the Supreme Court has
addressed his concerns. See Williams v. Taylor, 120 S.Ct. 1495 (2000).3
In Williams, the Supreme Court explained that when making the
“unreasonable application” determination, federal courts should inquire
whether the state court’s application of clearly established federal law
was objectively unreasonable. 120 S.Ct. at 1521. The Court
specifically noted that, in Drinkard,4 we apparently had applied the
reasonable jurist standard in a subjective manner. Id. at 1522.
The Supreme Court thus has clarified how the challenged language
of the AEDPA should be interpreted. Of course, as instructed by the
Supreme Court, when making the “unreasonable application” inquiry under
the AEDPA, we will determine whether the state court’s application of
clearly established federal law was objectively unreasonable.5 We now
3
At the time Tucker filed his brief, we had rejected this
argument. See Hughes v. Johnson, 191 F.3d 607, 612 (5th Cir. 1999).
4
97 F.3d at 769.
5
More specifically, under the AEDPA, this Court:
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apply the AEDPA inquiry to each of his claims.6
must defer to the state court unless its
decision "was contrary to, or involved an
unreasonable application of clearly
established Federal law, as determined by the
Supreme Court of the United States." 28
U.S.C. § 2254(d)(1). 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, 120 S.Ct. 1495, 1523
(2000). Under § 2254(d)(1)'s "unreasonable
application" language, a writ may issue "if
the state court identifies the correct
governing legal principle from [the] Court's
decisions but unreasonably applies that
principle to the facts of the prisoner's
case." Williams, 120 S.Ct. at 1523. Factual
findings are presumed to be correct, see 28
U.S.C. § 2254(e)(1), and we will give
deference to the state court's decision unless
it "was based on an unreasonable determination
of the facts in light of the evidence
presented in the State court proceeding."
Id.; § 2254(d)(2).
Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
6
In the alternative, Tucker argues that the AEDPA should not
apply to his petition because he sought counsel in federal court prior
to the enactment of the AEDPA. During Tucker’s previous federal habeas
proceeding, the district court appointed counsel but limited the scope
of counsel’s representation to issues that had been exhausted in state
court. Tucker appealed the district court’s interlocutory order, and
we dismissed the habeas proceeding without prejudice in order to allow
him to exhaust his state remedies. See Tucker, 66 F.3d 1418.
Tucker concedes that this Court has declined to accept a “similar
argument.” In Graham v. Johnson, 168 F.3d 762, 775-88 (5th Cir. 1999),
we rejected the petitioner’s contention that the AEDPA did not apply to
his petition because it was a “continuation” of the previous petition
that had been dismissed for failure to exhaust state remedies. Tucker
states that he now raises this argument simply to preserve it for review
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B. INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING
Tucker raises a broad claim of ineffective assistance during the
punishment phase. He argues that the district court erred in concluding
that he had not shown prejudice as a result of counsel’s deficient
performance in failing to investigate or present vital mitigating
evidence with respect to the abuse he suffered as a child. In Williams
v. Taylor, the Supreme Court recently reaffirmed the familiar two-
prong test:
First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
120 S.Ct. at 1511 (quoting Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984)). To demonstrate that counsel was
ineffective, a petitioner must establish that counsel’s
representation fell below an objective standard of reasonableness.
See id. To show prejudice, he must show that there is a reasonable
probability that, but for counsel’s error, the result of the
proceeding would have been different. See id. at 1511-12. We will
by this Court en banc or the Supreme Court. As Tucker essentially
admits, our decision in Graham requires us to reject his argument. It
is well settled that one panel of this Circuit may not overrule the
prior decision of another panel. See, e.g., United States v. Taylor,
933 F.2d 307, 313 (5th Cir. 1991).
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assume that counsel’s performance with respect to this claim was
deficient and determine whether Tucker has shown prejudice as a
result.
Tucker asserts that had counsel conducted an adequate
investigation into his personal background they would have
discovered that he suffers from organic brain impairment, was
severely sexually, physically, and emotionally abused as a child,
and ultimately became addicted to cocaine.
The State counters that the evidence Tucker asserts should
have been introduced is both mitigating and aggravating and
therefore does not establish prejudice. In Williams v. Taylor,
however, the Supreme Court recognized that not all of the
additional evidence need be favorable to the petitioner. 120 S.Ct.
at 1514. The Court explained that while the newly proffered
evidence “may not have overcome a finding of future dangerousness,
the graphic description of Williams’ childhood, filled with abuse
and privation, or the reality that he was borderline mentally
retarded, might well have influenced the jury’s appraisal of his
moral culpability.” 120 S.Ct. at 1515 (internal quotation marks
and citation omitted). Further, “[m]itigating evidence unrelated
to dangerousness may alter the jury’s selection of penalty, even if
it does not undermine or rebut the prosecution’s death-eligibility
case.” Id. at 1516. Had counsel presented and explained the
newly proffered mitigating evidence to Williams’ jury, there was a
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reasonable probability that the result of the sentencing hearing
would have been different. See id. Thus, the Supreme Court
concluded that the state court’s rejection of Williams’ claim was
contrary to, or involved an unreasonable application of, clearly
established federal law. See id.
In the case at bar, the district court found that counsel
presented evidence of Tucker’s “neglectful, absent father and the
dysfunctional home life he had with his mother, his isolation and
low self-esteem; his substance abuse problems; his stays in
residential treatment programs at both Buckner and the Wichita
Falls state hospital; and his relatively limited exposure to male
role models.” The court denied relief, concluding that “[t]he
additional evidence Tucker now asserts should have been presented
would have had little mitigating effect, whether considered alone
or in conjunction with the evidence already in the jury’s
possession, and fails to meet the second prong of Strickland.”
Therefore, the court concluded that Tucker had “not demonstrated
that the state court’s rejection of his claim of ineffective
assistance of counsel was unreasonable.”
After reviewing the record, we are convinced that Williams v.
Taylor is distinguishable from Tucker’s case in that there
apparently was no evidence offered by counsel with respect to the
mistreatment, abuse, and neglect of Williams’ “nightmarish”
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childhood.7 In contrast, Tucker’s trial counsel did elicit
mitigating evidence from several family members with respect to his
upbringing.
Essentially, Tucker’s argument is that counsel should have put
on a stronger case in mitigation of the death penalty. We do not
profess to be unmoved by the dreadful circumstances of Tucker’s
childhood, and we understand the relevance of such evidence to the
jury’s determination of Tucker’s moral culpability at the time he
committed the murder. Nevertheless, we are persuaded that,
although counsel could have presented additional mitigating
evidence, the evidence before the jury illustrated the bleakness of
Tucker’s home life. Indeed, a reading of the cold trial record
demonstrates Tucker was raised in an environment of rejection and
neglect.
Notwithstanding Tucker’s assertions to the contrary, defense
counsel did present a sympathetic picture of Tucker’s life to the
jury. As the district court stated, the evidence revealed to the
jury that Tucker was emotionally abused and neglected as a child
and that he had a problem with illegal drugs.
At the punishment phase, Tucker’s aunt testified that her
7
The evidence at Williams’ sentencing consisted of testimony from
his mother and two neighbors and a taped excerpt from a statement by a
psychiatrist. See Williams, 120 S.Ct. at 1500. The lay witnesses
testified that he was a “nice boy,” not a violent person. The
psychiatrist’s testimony “did little more than relate Williams’
statement during an examination that in the course of one of his earlier
robberies, he had removed the bullets from a gun so as not to injure
anyone.” Id.
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sister, Cecelia, did not want to give birth to Tucker and that
Tucker’s maternal grandfather “forced” Tucker’s father to marry
Cecelia, who was only sixteen years old at the time. His aunt
further testified that Tucker’s mother admitted that “she didn’t
love him, never wanted him.”
Tucker’s parents divorced and remarried and then divorced
again approximately a year after Tucker’s brother was born. The
testimony indicated that Tucker’s home environment was very
dysfunctional. His mother had problems with respect to her sexual
orientation, and relatives testified that she would dress Tucker in
girl’s clothing.
Tucker’s relatives described him as insecure, “love-starved,”
and “very sick” with “deep-seated problems.” Several witnesses
related that Tucker’s father was “never around” during his
childhood and was “not supportive.”
The jury was made aware that his mother sent him to a “state
home” in Wichita Falls, and on another occasion, Tucker was
admitted to the residential program at Buckner’s Children’s Home.
Most disturbing, Tucker, as an adolescent, contacted the state
authorities and successfully requested that he be removed (at least
temporarily) from the custody of his mother.
Tucker asserts the jury should have been informed that at one
point during his childhood his behavior had improved due to certain
medication that had been prescribed. Despite this improvement, his
mother failed to refill the prescription. Such evidence, he
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argues, would have demonstrated that he was “treatable” but his
family did not care enough to follow through with the treatment.8
Notwithstanding Tucker’s assertion otherwise, his mother did
testify that at one time she perceived a particular treatment was
helping Tucker, but the treatment was discontinued because she
could not afford it. As such, the jury did have before it some
indication that Tucker was “treatable.”
Although Tucker now presents additional mitigating evidence,
including evidence of physical and sexual abuse, we believe the
evidence at trial-–especially the testimony that Tucker was able to
have himself removed from the custody of his mother--spoke volumes
to the jury with respect to how intolerable his home environment
was both subjectively (to Tucker) and objectively (to the
authorities). Further, some of the newly proffered evidence
arguably would have been aggravating as opposed to mitigating. For
instance, a psychologist who examined Tucker wrote that there was
a “psychological time bomb” in Tucker that “detonated” at the time
of the murder.
We are mindful that we must give proper consideration to the
8
Tucker asserts that the omission of this evidence was
particularly damaging because the State portrayed him as having
willfully turned his back on an otherwise supportive family. We note
that although the State did attempt to characterize the evidence the way
he describes, this characterization was not left unchallenged. During
the cross-examination of one of Tucker’s aunts, Stella Tucker, the State
attempted to elicit testimony that the family had always tried to help
Tucker. Stella Tucker responded that although the family had tried to
help Tucker the last time he was released from prison, the family had
not helped him prior to that time.
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“quality and volume of the additional mitigating evidence.” Neal
v. Puckett, __ F.3d __, 2001 WL 43274, *11 (5th Cir. Jan. 18, 2001).
Further, as we previously have recognized, this inquiry is very
difficult. Id. Nevertheless, we remain unconvinced that the state
court’s conclusion (Tucker was unable to show that, if the newly
proffered evidence had been presented and explained by counsel,
there is a reasonable probability that the result of the sentencing
phase would have been different) was erroneous.
Even assuming arguendo that the state court’s conclusion was
erroneous, applying the previously set forth deferential AEDPA
standard, we believe we are constrained to hold that the state
court’s conclusion was not contrary to, or an unreasonable
application of, established federal law. See id. at *12-14
(holding that although the state court’s decision was erroneous,
because it did not involve an unreasonable application of
Strickland, the AEDPA requires that the habeas petition must be
denied). We must therefore deny relief on this claim.
C. INEFFECTIVE ASSISTANCE CLAIM WITH RESPECT TO EVIDENCE
OF PRIOR ASSAULT
During the punishment phase, the State introduced evidence of
Tucker’s prior conviction for the aggravated assault of his cellmate,
Louis Savant. Tucker asserts that the district court neglected to
address his claim that counsel rendered ineffective assistance by
failing to develop and present available evidence to rebut (or at least
mitigate against) the State’s characterization of this assault. After
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reviewing the record, we question whether Tucker adequately apprised
the district court of this particular claim until after the State had
responded to his amended habeas petition.9 Under these circumstances,
we do not believe Tucker has shown that the district court abused its
discretion by essentially denying him the opportunity to add another
ground of ineffective assistance of counsel after the State had replied
to his amended petition. Cf. Briddle v. Scott, 63 F.3d 364, 379 (5th
Cir. 1993) (explaining that decision to grant or deny motion to amend
after an answer is reviewed for abuse of discretion).
Assuming arguendo that Tucker adequately apprised the district
court of this claim, he requests that we remand it for further
proceedings. Relying on King v. McCotter, 759 F.2d 517, 518 (5th Cir.
1986), Tucker asserts that in capital cases, the district court must
make a ruling on each issue presented to allow the appellate court to
conduct a meaningful review. In King, this Court did remand the case
with instructions to provide reasons for the denial of each claim
presented. See id. Unlike the instant case, in King, the district
court had denied relief in a one-sentence order. See id. at 518. Here,
the district court denied relief in a thoughtful, 36-page order. We
decline Tucker’s invitation to remand; instead, we will address the
merits of his claim. See Willie v. Maggio, 737 F.2d 1372, 1376-77 (5th
Cir. 1984) (addressing all petitioner’s claims and denying relief even
9
Tellingly, the State, like the district court, did not discern
the instant claim from Tucker’s amended petition.
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though the district court had ruled on some but not all the petitioner’s
claims).
Tucker argues that counsel rendered ineffective assistance at the
punishment phase because (1) they did not investigate and present
evidence to explain his aggravated assault on his cellmate, Louis
Savant, and (2) a reasonably competent defense attorney would have
developed evidence demonstrating that he acted in “self defense.”10 This
strategy, Tucker asserts, would have rebutted the State’s arguments with
respect to future dangerousness. We will assume solely for purposes of
this appeal that counsel’s performance was deficient with respect to
this claim and focus on whether Tucker has shown prejudice.
Tucker contends counsel should have presented evidence that he
believed the Aryan Brotherhood had a contract on his life and that his
cellmate was the “hitman.” Such evidence would demonstrate that this
was not simply an unprovoked attack on an unarmed man. He therefore was
prejudiced by counsel’s failure to place his assault in proper context.
In other words, this would have been mitigating evidence with respect
to the jury’s determination of his future dangerousness.
During his habeas proceedings, Tucker did submit prison records
10
Under Texas law, “a person is justified in using force against
another when and to the degree he reasonably believes the force is
immediately necessary to protect himself against the other’s use or
attempted use of unlawful force.” See TEX. PENAL Code Ann. § 9.31
(Vernon 1995). Although Tucker employs the term “self defense,” he
apparently is not using it as defined under the Texas Penal Code.
Instead, we understand his argument to be that counsel should have
introduced mitigating evidence at the punishment phase with respect to
future dangerousness.
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demonstrating he had reported to the authorities that he feared for his
life because he knew the identity of certain members of the Aryan
Brotherhood. Prior to the assault, there apparently was no evidence
that his cellmate was in any way connected to the Aryan Brotherhood.
It was only after stabbing Savant that Tucker informed the authorities
Savant had attacked him on behalf of the Aryan Brotherhood.11 The prison
records also reveal that Tucker admitted he had a verbal confrontation
with Savant prior to the stabbing. In a letter to the prison
disciplinary committee, Tucker explained that prior to the verbal
dispute he discovered Savant had reported him to the prison authorities
for having homemade weapons in their cell. In his letter, Tucker wrote
that:
I did what I could do to get along with [Savant]
until I found out that he had told Lt. Jenkins
that I had a shank . . . . The shank was found.
I was then told to go back to my cell. I then
confronted [Savant] about what he had done and he
told me then that he had. We had a verbal [fight]
about it and all was forgotten.
The next part of the letter is partially illegible but it appears
to provide that Tucker was informed that Savant had been hired to kill
him. Tucker maintained that Savant attacked him. Tucker “got [his] two
shanks and proceeded to defend [him]self.” According to Tucker: “I
stab[bed] him [once] in each temple , [once] at the base of the back of
the skull, [twice] at the bottom of the throat. I left one in his
throat and one in his temple. . . .” Additionally, the records indicate
11
It appears that Louis Savant became Tucker’s cellmate only
three days prior to the stabbing.
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that Savant apparently did not have a weapon,12 and the authorities
suspected that Tucker’s superficial wounds were self-inflicted.
Assuming the jury believed that the brutal assault was motivated
by his fear of the Aryan Brotherhood rather than the fact that Savant
had informed the prison authorities regarding his shanks in their cell,
the evidence arguably does have some mitigating value. Nonetheless,
because the newly proffered records contain damaging evidence that
allows a jury to infer the attack was precipitated by Savant’s report
of Tucker’s homemade weapons, and the jury heard overwhelming evidence
that Tucker had committed two, unrelated armed robberies after killing
Humphreys, we are not prepared to conclude that Tucker has shown
prejudice at the punishment stage. As such, the state court’s decision
to reject this claim of ineffective assistance cannot be deemed
unreasonable or contrary to federal law.
D. KNOWING PRESENTATION OF FALSE TESTIMONY
The Supreme Court has held that due process is violated when
the State knowingly offers false testimony to obtain a conviction
and fails to correct such testimony. See Napue v. Illinois, 360
U.S. 264, 79 S.Ct. 1173, 1176-78 (1959). Applying this teaching,
we have recognized that relief is warranted if (1) the statements
in question are shown to be actually false; (2) the prosecution
knew that they were false; and (3) the statements were material.
12
Indeed, Tucker admitted in his letter that, prior to the
assault, Savant had reported Tucker’s possession of homemade weapons to
the authorities. In light of Savant’s complaint regarding weapons in
their cell, it seems unlikely Savant would have had his own weapon.
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See Thompson v. Cain, 161 F.3d 802, 808 (5th Cir. 1998). Further,
we have recognized that the issue of materiality involves a mixed
question of law and fact. See id.
Tucker argues that the district court erred in concluding that
the State did not elicit materially false testimony from Peter
Kindig, a New Mexico state police officer who apprehended Tucker
after a high-speed chase in New Mexico. More specifically, Tucker
claims that Officer Kindig testified falsely at trial because his
official report, which was not disclosed to the defense, provided
that the high speed chase concluded when Tucker pulled over on the
shoulder of the road for “no apparent reason.” This statement,
Tucker argues, contradicts Officer Kindig’s trial testimony that he
aimed his gun at Tucker during the chase, which prompted Tucker to
slowly pull over and stop his vehicle.
The state court found that this was a minor inconsistency and
constituted insufficient proof that Kindig’s testimony was false or
misleading. In reviewing this finding, we must accord it a
presumption of correctness, which can only be rebutted by “clear
and convincing evidence.” Thompson, 161 F.3d at 811; 28 U.S.C. §
2254(e)(1). The district court held that Tucker had not
“established reason to disregard this finding.” We agree.
At trial, Officer Kindig testified as follows with respect to
stopping Tucker during the pursuit:
I rolled down my window . . . and pointed the
weapon directly at the back of Mr. Tucker’s
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head. As doing so, we approached this curve
and this hill. As we approached this curve
and hill, Mr. Tucker while driving just--as he
commonly would, looked back over his shoulder
to see me. As he looked the first time, I
noticed him--he quickly looked back again. He
realized that I was pointing a weapon at him.
He realized that it was almost over.
Just before we got to that point where I knew
I could discharge my weapon, as he--the last
time that he shucked his face back towards me
very quickly, he gently applied the brake. I
saw the brake lights come on. He very slowly
began to move from that fast lane very slowly
over to the slower lane, and all the way to
the shoulder. This took over a half mile,
that he began to slowly stop.
In his offense report, Kindig had stated that “pursuit
continued to milepost 269 where suspect vehicle, for no apparent
reason, stopped on the shoulder of westbound I-40.” (emphasis
added). Tucker points out that the offense report did not provide
that the officer had his weapon aimed at Tucker. He argues that
the statement that Tucker stopped for “no apparent reason”
conflicts with Officer Kindig’s trial testimony that indicated that
Tucker stopped because of the weapon aimed at him.
However, as the State asserts, during a pretrial hearing
Officer Kindig testified that after Tucker observed him aiming his
rifle, Tucker stopped “for no apparent reason.”13 Although it is
13
At the pretrial hearing, Officer Kindig testified as follows:
As I raised my rifle outside the window, I
positioned my vehicle back to the right rear of
Mr. Tucker’s vehicle. He then swerved to the fast
lane near the median. I raised my rifle out, I
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unclear what Officer Kindig meant to convey by the phrase “for no
apparent reason,” under these circumstances, it certainly does not
prove that his testimony was false. Put another way, because the
officer used that particular phrase in the context of testifying
that Tucker stopped his vehicle upon observing the weapon, it does
not logically follow that he used that phrase in his report to
indicate no weapon was exhibited. Accordingly, Tucker has not
rebutted with clear and convincing evidence the state court’s
finding that this was a minor inconsistency and constituted
insufficient proof that the testimony was false or misleading.
Thus, the claim fails on the first prong.
Even assuming Tucker has shown the testimony was actually
false, the state court’s finding that the testimony was not
pointed it directly at Mr. Tucker, the back of his
head. As I began to approach the curve, I do
remember Mr. Tucker immediately looking back and
then looking forward and then very quickly looking
back at me and seeing the position at which I was
in.
* * *
Within just--within seconds, his brake lights
gently came on and he began to just very gently
[steer] from the fast lane across the center lane
to the slow lane to the shoulder. At all times I
maintained sight of Mr. Tucker the best that I
could being that he was on the opposite side of
the vehicle from me.
I radioed to the dispatcher for no apparent reason
under the situation Mr. Tucker was stopping, he
was stopping very slowly and very careful at that
time since I had taken those measures.
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material is not unreasonable. Tucker asserts that Officer Kindig’s
“false” testimony with respect to the high speed chase was material
in regard to the sentencing phase--the jury’s affirmative answer to
the future dangerousness inquiry. According to Tucker’s trial
counsel, Kindig’s description of the high speed chase was a “key
element of the state’s case” that had a “dramatic effect on the
jury.” This argument is not persuasive. Kindig’s testimony did
describe high speed pursuit at gun point, which no doubt involves
some drama. Significantly, the chase ultimately ended with no
injuries to persons or property. Viewing this testimony in the
context of the State’s other evidence (Tucker confessed to killing
Humphreys, committing two other armed robberies after killing
Humphreys, and brutally assaulting his cellmate during a previous
incarceration), we do not believe it is material whether Tucker
surrendered for “no apparent reason” or because Officer Kindig
aimed his weapon at him. In conclusion, Tucker has failed to show
the state court’s decision that the challenged testimony was not
material was contrary to, or involved an unreasonable application
of, established federal law.
E. SHOWING OF CAUSE FOR FAILURE TO OBJECT
During his state habeas proceedings, Tucker argued that
evidence of his prior conviction for the aggravated assault of his
cellmate was inadmissible because it was based on an involuntary
guilty plea and entered without the effective assistance of
counsel. The state court found the claim procedurally barred.
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Tucker now contends that the district court erred in
concluding (without a hearing) that Tucker could not show cause for
counsel’s failure to object to the admission of his prior
conviction for aggravated assault at sentencing. If a state court
has explicitly relied on a procedural bar, a state prisoner may not
obtain federal habeas relief absent a showing of cause for the
default and actual prejudice that is attributable to the default.
See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2565 (1991).
Ineffective assistance of counsel may constitute "cause." Ellis v.
Lynaugh, 883 F.2d 363, 367 (5th Cir. 1989).
Assuming arguendo that counsel’s failure to object to the
admission of the prior conviction at the punishment phase
constituted deficient performance, we do not believe he can
establish that he was prejudiced as a result.14 As such, Tucker has
failed to show the required cause and prejudice to overcome the
procedural default.
During the punishment phase of Tucker’s trial, the State
introduced evidence of the official conviction and also presented
the testimony of Chad Sparkman, a correctional officer who was
first on the scene of the assault and conducted the investigation.
14
This Court has indicated that it is unclear whether Strickland
prejudice constitutes sufficient prejudice in the context of overcoming
a procedural bar in federal habeas corpus. See Felder v. Johnson, 180
F.3d 206, 215 (5th Cir. 1999). Because we conclude Tucker has not shown
Strickland prejudice, it is unnecessary to determine whether a greater
showing of prejudice is required to overcome the procedural bar.
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Sparkman saw Tucker’s injured cellmate immediately after the attack
with two homemade weapons still protruding from the victim’s temple
and throat. While still in the cell with Savant, Tucker stated to
Sparkman that he “killed his cellie.” Even assuming arguendo that
counsel could have successfully excluded evidence of this allegedly
unconstitutional conviction, Tucker has not shown that Sparkman’s
testimony regarding the circumstances of the attack would have been
inadmissible. As a result, Tucker has not established prejudice.
Thus, the district court properly concluded that Tucker failed to
overcome the procedural bar to his claim that his prior conviction
was inadmissible.
F. ADMISSION OF EVIDENCE OF OTHER CRIMES
Tucker’s final claim on appeal is that the district court
erred in finding that the admission of evidence of other crimes at
the guilt phase constituted harmless error. In his taped
confession, Tucker stated that he had stolen two checks from his
brother’s checkbook on the morning of the murder, which were used
to purchase a firearm (the murder weapon) in violation of his
parole. He further confessed to committing two armed robberies--
one in Arlington, Texas, and one in New Mexico--after shooting and
killing Humphreys.
On direct appeal, the Court of Criminal Appeals concluded that
this evidence was irrelevant to the issue of Tucker’s guilt.
However, the Court found the error harmless because the evidence
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was not emphasized by the prosecution, Tucker had confessed both
verbally and in writing to the killing, and there was no evidence
specifying the offense for which he had been serving parole.
Tucker argues that the Court of Criminal Appeals’ finding that
the prosecutor did not mention the evidence during the jury
argument is misleading. He states that the prosecutors repeatedly
directed the jury’s attention to Tucker’s taped confession, which
contained the “other crimes” evidence. Of course, aside from the
evidence of the other crimes on the tapes, the prosecutor had a
very legitimate reason to direct the jury’s attention to the tapes,
i.e., Tucker confessed to shooting Humphreys (albeit
unintentionally) with his pistol. In any event, we found only one
explicit reference to “other crimes” during the prosecutor’s
closing argument. The prosecutor referred to Tucker taking his
brother’s checks and illegally buying a gun.15 The prosecutor
refrained from mentioning the armed robberies Tucker committed
after the murder. Tucker has failed to rebut the state court
finding that the evidence of the crimes was not emphasized.
As set forth above, the Court of Criminal Appeals found that
the admission of evidence of the other crimes was error. The State
argues that the state court’s conclusion that the error was harmless
was not an unreasonable application of federal law. More specifically,
15
During closing argument the prosecutor stated: “And he went
step by step, from taking checks from his brother and forging them and
getting the money to buy the gun, to buying it when he knew he legally
couldn’t have it.”
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the State contends that the evidence of the other crimes did not
have a substantial and injurious effect or influence in determining
the jury’s verdict under Brecht v. Abrahamson, 507 U.S. 619, 113
S.Ct. 1710 (1993). We will assume that the admission of the
evidence of other crimes was error and determine whether such error
was harmless under Brecht. See Corwin v. Johnson, 150 F.3d 467,
476 (5th Cir. 1998) (assuming admission of evidence constituted
error and determining whether the petitioner was entitled to
federal habeas relief pursuant to Brecht). We have articulated
this standard as follows:
Under Brecht, a constitutional trial error is
not so harmful as to entitle a defendant to
habeas relief unless there is more than a mere
reasonable possibility that it contributed to
the verdict. It must have had a substantial
effect or influence in determining the
verdict. We recognize, however, that if our
minds are in virtual equipoise as to the
harmlessness, under the Brecht standard, of
the error, then we must conclude that it was
harmful. Moreover, the Brecht standard does
not require in order for the error to be held
harmful that there be a reasonable probability
that absent the error the result would have
been different.
Id. at 500 (brackets, internal citations and quotation marks
omitted).16
16
We note that there has been some doubt expressed with respect
to whether the standard in Brecht is still viable after the enactment
of the AEDPA. E.g., Anderson v. Cowan, 227 F.3d 893, 898 n.3 (7th Cir.
2000). The parties before us have not briefed this issue, and we have
employed the Brecht analysis in cases decided pursuant to the AEDPA.
E.g., Corwin, 150 F.3d at 476-77. In any event, because we are not
persuaded that Tucker has shown he is entitled to relief under either
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In light of Tucker’s confession, the overwhelming evidence of
guilt, and the fact that the State did not emphasize the other
crimes, we are persuaded that the evidence did not have a
substantial effect or influence in determining the jury’s verdict.
Accordingly, we conclude that the state court’s determination of
harmlessness was not contrary to, or an unreasonable application
of, established federal law.
For the above reasons, the judgment of the district court is
AFFIRMED.
standard, we need not decide the issue of Brecht’s continued vitality.
See Anderson, 227 F.3d at 898-99 n.3 (assuming Brecht standard is more
generous than the AEDPA, the error nonetheless was harmless).
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