CA5 — memorandum disposition

Shelton v. Quarterman, No. 06-10448 — This is a murder case.  The petitioner was convicted of shooting his business partner and his partner’s wife outside their home.  The partner died; the wife survived.  The partner’s wife claimed that the petitioner’s wife participated in the chooting; the petitioner’s wife was never charged.  The partner’s wife sued the petitioner’s wife for wrongful death.  During discovery, additional facts related to the murder emerged that were not presented at the petitioner’s trial.  Eventually the wrongful death lawsuit was dismissed, and the petitioner’s wife won a libel judgment for public allegations that she was involved in the shooting.

The lawyer who represented the petitioner’s wife at trial wrote a letter to the petitioner, explaining the additional evidence that had emerged during discovery and describing his belief that the prosecution had wrongfully withheld the evidence at the trial.  The petitioner then sought state habeas relief, which both the trial court and the Texas Court of Criminal Appeals denied.

The petitioner then filed a § 2254 petition, and also asked for discovery and to expand the record in federal court.  The district court denied both the requests for evidentiary development as well as the petition on the merits.  The Fifth Circuit certified the issues for appeal.

As for the petitioner’s request for additional discovery, it was grounded in an allegation that the prosecution had presented false testimony from the partner’s at the criminal trial.  But the petitioner failed to allege what was false about the testimony, such that further discovery would have allowed him to flesh that out.  Moreover, the trial court in the wrongful death lawsuit never ruled that the partner’s wife had lied on the stand.  Records from the company that maintained a portable toilet in which evidence of the shooting was found were not material under Brady.  Phone records the prosecution allegedly withheld were not exculpatory.  Because these allegations were insufficient to establish “just cause” for discovery, Bracy v. Gramley, 520 U.S. 899 (1997), the district court did not abuse its discretion to deny discovery.

As for the petitioner’s request to expand the record, the court began by noting that the provisions of § 2254(e)(2) apply to requests to expand the record as well as for evidentiary hearings.  Because the petitioner did not apprise the state habeas courts of the evidence by which he sought to expand the record, he had “failed to develop the factual basis of the claims” in state-court proceedings.  The facts were not sufficient to establish by clear and convincing evidence that no reasonable factfinder would have convicted him, so the district court properly denied the request to expand the record, and for an evidentiary hearing as well.

Finally, trial counsel was not ineffective for failing to investigate the records maintained by the portable toilet company regarding the maintenance of the particular toilet where inculpatory evidence was found.  The records were not “facially exculpatory,” and they did not indicate that the jury would have believed his alibi explanation that he placed the evidence in the portable toilet on a different day.  In light of the strength of the other evidence against the petitioner, the court concluded that the state courts’ conclusion on Strickland prejudice was not unreasonable.