Farley v. Bissonnette (CA1)

Farley v. Bissonnette, No. 08-1094 — The petitioner was charged with murdering her friend, and ultimately convicted.  She challenged an instruction given to the jury at trial, which told the jury that the prosecution did not have to prove that no one else may have committed the murder.  This instruction responded to the petitioner’s theory of the crime, that one of two other people may have committed the murder.  Both of those people testified at trial that they were not at the victim’s home on the night of the murder.  The judge did instruct the jury that the petitioner was presumed innocent and that the Commonwealth bore the burden of proving her guilt beyond a reasonable doubt.  The court rejected the claim, pointing out that “where the defense attempts to cast blame on someone other than the defendant, it is not unusual for the court to remind the jury that the government’s burden is to show that the defendant is guilty — not that the other person whom the defendant seeks to blame is innocent.”  After all, the defendant may have aided or abetted the murder.  In the context of the trial, the instructions as a whole did not allow the jury to convict on something less than proof beyond a reasonable doubt.  See Victor v. Nebraska, 511 U.S. 1 (1994).

The trial court’s restriction on the scope of the petitioner’s cross-examination of one of those prosecution witnesses was harmless beyond a reasonable doubt.  The defense sought to have the witness testify regarding drug-running activity in which he and the victim were involved, but the witness invoked his Fifth Amendment privilege against self-incrimination.  The Supreme Judicial Court of Massachusetts ruled that allowing the witness to invoke the privilege was error, but also had found the error harmless beyond a reasonable doubt.  The First Circuit held that this error did not have a substantial and injurious effect on the verdict.

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.

CA5 — memorandum disposition

Kyles v. Quarterman, No. 06-20495 — The court affirmed the denial of a 2254 petition challenging changes in Texas’s parole procedures for life prisoners.  There was no evidence to support the contention that the members of the Texas parole board who favored granting him parole would eventually be involved in the actual parole decision.  Accordingly, the state courts’ rejection of the claim was not unreasonable.

CA5 — memorandum disposition

Whitlock v. Quarterman, No. 06-11066 (CA5) — The petitioner had been convicted of aggravated robbery and aggravated assault in separate proceedings.  He had already challenged the robbery conviction in prior habeas proceedings, and so the Fifth Circuit rejected that this petition, which challenged the assault conviction, was second or successive.  Nevertheless, the petition was untimely.  He was not entitled to statutory tolling because his petition was not “properly filed” under Texas law.  There was no state-created impediment to filing, and the petitioner was not entitled to equitable tolling.

Pondexter v. Quarterman (CA5)

Pondexter v. Quarterman, No. 06-70048 (CA5, capital case) — The Fifth Circuit upheld the district court’s denial (on remand from a prior appeal) of the petitioner’s IAC claim.  Pondexter told a fellow inmate in the county jail that he knew the victim was already dead when he shot her.  The inmate told a state investigator.  Pondexter’s codefendant was tried first, and the state proved that the codefendant shot and killed the victim before Pondexter shot the victim.  At Pondexter’s trial, defense counsel did not call a pathologist to testify to this fact.  The state’s pathologist testified that the victim was still alive at the time of both shootings, and either gunshot alone could have been fatal.  Pondexter was convicted and sentenced to death.

The Texas Court of Criminal Appeals affirmed the conviction and sentence.  In state habeas proceedings, Pondexter argued that trial counsel was ineffective for failing to consult and call a pathologist to testify.  The state habeas court held a one-day evidentiary hearing, at which a defense pathologist testified that the shot Pondexter fired was only “potentially” fatal.  There was no evidence before the state habeas court regarding trial counsel’s strategic decision, if any, not to call a pathologist.  The state habeas court recommended denying Pondexter’s state habeas petition, and the Texas Court of Criminal Appeals adopted the recommendation.

The federal district court initially granted relief on the IAC claim relating to the pathologist, but the Fifth Circuit reversed in a prior decision.  On remand, the district court denied relief on other IAC claims, and certified three of them for appeal.

The Fifth Circuit began by faulting Pondexter for failing to present evidence to the state habeas court about whether trial counsel consulted a pathologist, and then faulting the state for failing to bring that “important point” to the court’s attention.  Even so, the Fifth Circuit assumed that trial counsel did not consult a pathologist, and evaluated Strickland prejudice on this assumption.  (The court did not reach the prejudice prong of Strickland in the prior appeal; nevertheless, the court felt that this was the stronger basis for denying Pondexter’s claim.)

Although the district court and the prior panel of the Fifth Circuit had found the state courts’ finding on prejudice to be not unreasonable, Rompilla v. Beard, 545 U.S. 374 (2005), required a different standard of review.  The state courts never ruled on prejudice.  They ruled on deficient performance alone, rejecting Pondexter’s IAC claim on that basis.  Under Rompilla, a federal habeas court was permitted to evaluate this prong de novo.  The Fifth Circuit did so, even though the prior panel had ruled that it had to determine whether a no-prejudice finding, even an implicit one, was an unreasonable application of Strickland.

In light of the overwhelming evidence of guilt presented at Pondexter’s trial, the Fifth Circuit ruled that, under de novo review, he did not show prejudice stemming from any failure to consult with or call a pathologist to testify at trial.

The court rejected other claims the district court had certified for appeal.