IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 5, 2007
No. 06-70027 Charles R. Fulbruge III
Clerk
DAVID LEONARD WOOD
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This case involves an application for a certificate of appealability (“COA”)
filed by Petitioner David Leonard Wood (“Petitioner”) to appeal the district
court’s denial of habeas corpus relief under 28 U.S.C. § 2254. Petitioner seeks
a COA to appeal the denial of his claims that (1) the indictment was defective
because it did not state a capital offense; (2) trial and appellate counsel provided
ineffective assistance of counsel; and (3) the trial court erred in admitting
evidence of an extraneous offense during the guilt phase of the trial. Because we
conclude that Petitioner has failed to make a substantial showing of the denial
of a constitutional right, we deny his application for a COA.
No. 06-70027
I. BACKGROUND
The district court set forth the relevant facts as follows:
This case stems from the disappearances of six women from the El
Paso, Texas area between May 13, 1987 and August 27, 1987.
Between September 4, 1987 and March 14, 1988, the bodies of these
women were found buried in shallow graves in the same desert area
northeast of El Paso. Five of the bodies were located in the same
one by one-half mile area; the sixth was three-quarters of a mile
away. All of the bodies were approximately 30 to 40 yards from one
of the dirt roadways in the desert. Four of the bodies were in
various states of undress, indicating that the killer had sexually
abused them. Five of the victims were seen by witnesses on the day
of their disappearance accepting a ride from a man with either a red
Harley-Davidson motorcycle or a beige pickup truck, matching the
two vehicles owned by Petitioner. Petitioner’s girlfriend testified
that he owned a burnt orange blanket and some shovels, all of which
he kept in the back of his pickup truck. A forensic chemist later
testified at trial that orange fibers found on the clothing of one of
the victims matched orange fibers taken from a vacuum cleaner bag
which Petitioner and his girlfriend had left in their old apartment.
Petitioner’s cell mate, Randy Wells, testified that Petitioner told
him about the murders, describing his victims as topless dancers or
prostitutes. Petitioner told him that he would lure each girl into his
pickup truck with an offer of drugs, drive out to the desert, tie her
to his truck, and dig a grave. Next, he would tie the victim to a tree
and rape her. Another cell mate, James Carl Sweeney, Jr., testified
at Petitioner’s trial that Wood had shown him numerous clippings
about the El Paso, Texas murders and had confessed to him that he
was the one who had committed the murders.
The testimony of Judith Kelly (“Kelly”) regarding an extraneous
criminal offense committed by Petitioner played a crucial role at the
guilt phase of the trial and in the opinion of the Court of Criminal
Appeals. Kelly, a prostitute and heroin addict, testified that in July
1987 she had been walking outside of a convenience store in the
northeast part of El Paso when a man identified as Wood, and
matching his description, asked if she needed a ride. She accepted
his offer but Wood did not take her home as directed. Instead, he
stopped at an apartment complex and went inside. When he
returned, a piece of rope was hanging from one of his pockets.
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No. 06-70027
Petitioner drove northeast of town toward the desert, and after
driving around the area for a period of time, stopped the truck, got
out, and ordered Kelly out as well. She saw him get a “brownish
red” blanket and shovel from the back of his truck. After tying her
to the front of his truck with the rope, Petitioner proceeded to dig a
hole behind some bushes. Ten or fifteen minutes later he returned
with the blanket and began ripping her clothes and forcing her to
the ground. Upon hearing voices, Petitioner ordered Kelly to get
back in the truck. Wood drove to a different location in the desert
where he stopped his truck again, ordered Kelly out, spread the
blanket on the ground, and forced the victim to remove her clothes.
He gagged her, tied her to a bush, and raped her. Immediately
afterwards, Petitioner stated that he heard voices, and hastily threw
his belongings back into the truck and drove away, leaving Kelly
naked in the desert. His final words to her were, “Always
remember, I'm free.”
Wood v. Dretke, 2004 WL 1243169, **1-2 (N.D. Tex. Jun. 2, 2006).
On November 30, 1992, Petitioner was convicted by a jury of capital
murder and was sentenced to death by lethal injection. He appealed his
conviction and sentence to the Texas Court of Criminal Appeals (“TCCA”), which
affirmed his conviction and death sentence in an unpublished opinion. See Wood
v. State, No. 71,594 (Tex. Crim. App. Dec. 13, 1995). He then filed a state
application for writ of habeas corpus on December 19, 1997. The TCCA denied
relief in an unpublished order. See Ex Parte Wood, No. 45,746-01 (Tex. Crim.
App. Sept. 19, 2001). On May 6, 2002, Petitioner filed an initial federal petition
for writ of habeas corpus and an amended petition on October 2, 2002. In his
amended petition, he argued, inter alia, that (1) his indictment was
constitutionally defective, (2) trial and appellate counsel were ineffective by
failing to object to the alleged technical defects in the indictment; and (3) the
trial court erred in admitting evidence of an extraneous offense. The district
court denied each claim on the merits and subsequently denied a COA.
Petitioner filed a notice of appeal and the instant application for a COA.
II. STANDARD OF REVIEW
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No. 06-70027
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a COA may not issue unless “the applicant has made a substantial
showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473,
483 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this
requirement includes a showing that “reasonable 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.’” Id. at 483-84 (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983)). As the Supreme Court explained:
The COA determination under § 2253(c) requires an overview of the
claims in the habeas petition and a general assessment of their
merits. We look to the District Court’s application of AEDPA to
petitioner’s constitutional claims and ask whether that resolution
was debatable amongst jurists of reason. This threshold inquiry
does not require full consideration of the factual or legal bases
adduced in support of the claims. In fact, the statute forbids it.
When a court of appeals side steps this process by first deciding the
merits of an appeal, and then justifying its denial of a COA based
on its adjudication of the actual merits, it is in essence deciding an
appeal without jurisdiction.
Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2002).
In sum, Petitioner need not show that his habeas petition will ultimately
prevail on the merits in order for this court to issue a COA. Id. at 337. In fact,
the Supreme Court has specifically instructed that a court of appeals should not
deny a COA simply because the petitioner has not demonstrated an entitlement
to relief. Id. Instead, “where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. at 338 (citing Slack, 529 U.S. at 484).
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No. 06-70027
For claims that were adjudicated on the merits in state court, deference
to the state court’s decision is required unless the adjudication was “contrary to,
or involved an unreasonable application of, clearly establish Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see
also Ladd v. Cockrell, 311 F.3d 349, 357 (5th Cir. 2002).
III. ANALYSIS
A. Sufficiency of the Indictment Claim
The first issue raised by Petitioner is whether the indictment in this case
is constitutionally defective. This court has held that “[t]he sufficiency of a state
indictment is not a matter of federal habeas relief unless it can be shown that
the state indictment is so defective that it deprives the state court of
jurisdiction.” McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994) (citation omitted);
see also Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993); Alexander v.
McCotter, 775 F.2d 595, 598 (5th Cir.1985). That question is foreclosed to
federal habeas review, however, if “the sufficiency of the [indictment] was
squarely presented to the highest court of the state on appeal, and that court
held that the trial court had jurisdiction over the case.” Millard v. Lynaugh, 810
F.2d 1403, 1407 (5th Cir. 1987) (quoting Liner v. Phelps, 731 F.2d 1201, 1203
(5th Cir. 1984)). Here, the sufficiency of the indictment was squarely presented
to the TCCA, which adopted the state habeas court’s express findings that the
indictment was not fundamentally defective and that even if the indictment
failed to allege a necessary element, it was still an indictment under state law.1
1
The Texas Constitution provides that the “presentment of an indictment or
information to a court invests the court with jurisdiction of the cause.” Texas Constitution,
Art. 5, § 12(b). Based on this provision, Texas courts have held that “failure to include an
essential element of the crime charged, which constitutes a defect of substance, does not
deprive the trial court of jurisdiction.” McKay, 12 F.3d at 69 (citing Studer v. Texas, 799
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No. 06-70027
Because the sufficiency of the indictment was squarely presented to the highest
state court and that court held that the trial court had jurisdiction over this case,
this claim is foreclosed to federal habeas review. Millard, 810 F.2d at 1407
(quoting Liner, 731 F.2d at 1203).
Even if we were to reach this issue on the merits, we would find it beyond
debate that Petitioner has failed to make a substantial showing of the denial of
a constitutional right. Texas law defines murder as “intentionally or knowingly
caus[ing] the death of an individual.” Tex. Penal Code § 19.02(b)(1). A person
commits capital murder if he or she “murders more than one person . . . during
different criminal transactions but the murders are committed pursuant to the
same scheme or course of conduct.” Tex. Penal Code § 19.03(a)(7)(B). The
indictment charges Petitioner with “unlawfully, intentionally and knowingly
caus[ing] the death of more than one person, during different criminal
transactions, pursuant to the same scheme and course of conduct.” It then lists
the six victims and the manner, if known, in which they were killed. We simply
fail to see how the indictment is insufficient in charging Petitioner with capital
murder. See McKay, 12 F.3d at 69 (“An indictment should be found sufficient
unless no reasonable construction of the indictment would charge the offense for
which the defendant has been convicted.”) (citing United States v. Salinas, 956
F.2d 80, 82 (5th Cir.1992)). Accordingly, we conclude that it is beyond debate
that Petitioner has not made a substantial showing of the denial of a
constitutional right with respect to his sufficiency of the indictment claim.
B. Ineffective Assistance of Counsel Claim
The second issue raised by Petitioner is whether trial and appellate
counsel provided ineffective assistance by failing to object to the alleged
technical defect in the indictment. Petitioner frames the issue as follows: “Did
S.W.2d 263 (Tex. Crim. App. 1990)).
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No. 06-70027
Mr. Wood’s trial and appellate counsel provide ineffective assistance within the
meaning of Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005)?” We first
note that “federal habeas corpus relief does not lie for errors of state law.”
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764,
780 (1990)). As the Supreme Court emphasized, “it is not the province of a
federal habeas court to reexamine state-court determinations on state-law
questions.” Id. at 67-68.
Assuming that Petitioner intended to raise a federal claim for ineffective
assistance of counsel, the Supreme Court has set forth a familiar two-prong test
for examining such claims:
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. Unless
a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Sonnier v.
Quarterman, 476 F.3d 349, 356 (5th Cir. 2007).
This court has held, however, that “[f]ailure to raise meritless objections
is not ineffective lawyering; it is the very opposite.” Clark v. Collins, 19 F.3d
959, 966 (5th Cir. 1994); see also Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.
1990) (“This Court has made clear that counsel is not required to make futile
motions or objections.”). Because we find that Petitioner’s sufficiency of the
indictment claim plainly lacks merit, the performance of his trial and appellate
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No. 06-70027
counsel cannot be considered constitutionally deficient for failing to raise the
same claim at trial and on appeal.2
C. Due Process Claim
The third and final issue raised by Petitioner is whether the trial court
erred in admitting evidence of an extraneous offense during the guilt phase of
the trial. Although Petitioner alludes to a due process violation, his central
argument is that the admission of Judith Kelly’s testimony violated Texas law.
“Such an inquiry, however, is no part of a federal court’s habeas review of a state
conviction.” McGuire, 502 U.S. at 67; see also Derden v. McNeel, 978 F.2d 1453,
1458 (5th Cir. 1992) (“Errors of state law, including evidentiary errors, are not
cognizable in habeas corpus.”); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983)
(“We have repeatedly admonished that we do not sit as a super state supreme
court on a habeas corpus proceeding to review error under state law.”) (quoting
Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir.1981)). Instead, the only relevant
inquiry is whether the admission of this testimony violated Petitioner’s federal
constitutional rights. Id. Moreover, the TCCA has already held that the
admission of this testimony was not erroneous under Texas law. The Supreme
Court has “repeatedly held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (citing McGuire, 502 U.S. at 67-68; Mullaney v. Wilbur, 421 U.S. 684, 691
(1975)). Thus, the issue of whether the admission of Kelly’s testimony violated
Texas law is simply not before us and has already been answered by the TCCA.
2
We also note that trial counsel filed two motions to quash the indictment on the bases
that it did not allege the cause of death of five of the victims and did not allege what different
criminal transactions occurred or what acts constituted the same scheme or course of conduct.
Trial counsel also filed a motion to dismiss the indictment on the basis that it did not define
“criminal transactions” or “same scheme or course of conduct.” Thus, we agree that trial
counsel provided reasonably effective assistance of counsel by attacking the validity of the
indictment on several grounds.
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No. 06-70027
According to the Supreme Court, the admission of evidence may violate the
Due Process Clause of the Fourteenth Amendment if the evidence is “so unduly
prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee,
501 U.S. 808, 825 (1991) (citing Darden v. Wainwright, 477 U.S. 168, 179-83
(1986)); see also Porter, 709 F.2d at 957 (quoting Mendiola, 635 F.2d at 491).
This court has stated that “[a]n extraneous offense may be admitted into
evidence without violating the due process clause if the government makes a
‘strong showing that the defendant committed the offense’ and if the extraneous
offense is ‘rationally connected with the offense charged.’” Story v. Collins, 920
F.2d 1247, 1254 (5th Cir. 1991) (quoting Enriquez v. Procunier, 752 F.2d 111,
115 (5th Cir. 1984)). Still, “the erroneous admission of prejudicial evidence will
justify habeas relief only if the admission was a crucial, highly significant factor
in the defendant’s conviction.” Neal v. Cain, 141 F.3d 207, 214 (5th Cir. 1998).
Finally, “[a]ssuming arguendo that the admission of [this evidence] was
constitutional error, [the] claim still fails [if the petitioner] has not shown that
the testimony had a ‘substantial and injurious effect or influence in determining
the jury’s [] verdict.’” Janecka v. Cockrell, 301 F.3d 316, 328-29 (5th Cir. 2002)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
As previously noted, Judith Kelly, a prostitute and heroin addict, testified
that she accepted a ride from Petitioner, but that he instead took her to the
desert, tied her to his truck, and proceeded to dig a hole. She further testified
that after hearing voices, Petitioner moved her to another location, gagged her,
tied her to a bush, and raped her. In addressing the admissibility of this
evidence, the TCCA found that Kelly’s testimony tended to demonstrate that
Petitioner had a unique system of committing criminal acts. The TCCA
emphasized the striking similarities between the Kelly rape and the six
murders, including the proximity of the found bodies to the area where Kelly
was raped, the use of a beige truck to transport the victim, the evidence of sexual
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No. 06-70027
abuse of the several victims, the use of a blanket and rope, and the fact that
Petitioner dug a hole prior to raping Kelly. The TCCA also noted the similarities
between the Kelly rape and testimony given by one of Petitioner’s cell mates that
Petitioner described all of his victims as topless dancers and prostitutes, that he
would tie the women to his truck while he dug a grave and then tie them to a
tree and rape them, and that he was worried about his tattoos because one girl
had escaped. Finally, the TCCA held that any prejudicial effect of admitting the
testimony did not substantially outweigh its probative value because identity
was a hotly contested issue, the evidence that Petitioner raped Kelly was
“unassailable,” the evidence of rape was much less severe than the murders, the
amount of time presenting the evidence was minimal in relation to the entire
length of the trial, and the evidence was extremely important to the state’s case.
Because the state has made a strong showing that Petitioner committed
the extraneous offense -- Petitioner does not deny raping Kelly -- and because
the extraneous offense is rationally connected to the offense charged, the
admission of Kelly’s testimony did not violate Petitioner’s due process rights.
Story, 920 F.2d at 1254 (quoting Enriquez, 752 F.2d at 115). Thus, we conclude
that it is beyond debate that Petitioner has not made a substantial showing of
the denial of a constitutional right with respect to his due process claim.
IV. CONCLUSION
For the foregoing reasons, the application for a COA is denied.
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