Elliott vs. Cockrell, (5th Cir. 2002)
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* Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-50961 consolidated with No. 02-50407 JOHN WILLIAM ELLIOTT, Petitioner-Appellant, versus JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.
Appeal from the United States District Court for the Western District of Texas (1:99-CV-606) July 25, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM: * John William Elliott, who received the death penalty in Texas state court, after being convicted of murder in the course of committing aggravated sexual assault, seeks a certificat e of appealability (COA) to appeal the denial of federal habeas relief, raising over 20 claims, inter alia : for the federal proceedings, denial of an evident iary hearing; and for the state proceedings, prosecutorial misconduct, failure to disclose exculpatory evidence, e vidence insufficiency, inadequate jury instruction for the ter m “beyond a reasonable doubt”, and ineffective assistance of counsel.
In addition, Elliott appeals the denial of expert and investigatory assistance (funding) during the federal proceedings. COA DENIED ; FUNDING-DENIAL AFFIRMED .
I. On 13 June 1986, Hanso n invited eighteen-year-old Joyce Munguia to join a group of men in front of ElizondoÂ’s home. Also present were Elliott, Elizondo, and Ramirez. Over the next few hours, Munguia consumed beer, Everclear (grai n alcohol) , and cocaine. She became intoxicated and, later that evening, engaged in apparently conse nsual sexual relations with Elizondo in his house. Shortly thereafter, a ccordi ng to Hanson : Munguia was crying; her words were slurred; and her walking was impaired.
Munguia asked Hanson to walk her home.
Also according to Hanson: as he began walking Munguia home, Elliott joined them and offered to help; Hanson told Elliott to leave; Elliott refused, claiming Hanson “just wanted her [Munguia] to himself”; after Munguia started to fall, Elliott picked her up and, over Hanson’s protests, carried her into a dark, wooded area under a bridge; Elliott pulled down Munguia’s shorts and Hanson asked him to let Munguia go; Elliott threatened Hanson, but began pulling Munguia’s shorts up; Hanson started to wa lk off with Munguia when Elizondo and Ramirez arrived; Elliott then p ulled Munguia a way from Hanson and raped her; Hanson left to call the police, but then returned to help Munguia, only to find Ramirez raping her; next, Elizondo raped her; the entire time, Munguia was crying and pleading for Hanson’s help and said she was “going straight to the police when y’all get through”.
Hanson further testified: after the rapes, Elliott told Elizondo, “We’re going to have to get rid of her [Munguia]”, then Elliott ran toward Elizondo’s house; Hanson began helping Munguia with her clothes, but Elizondo took them from Hanson and said, “You too, Danny [Hanson]”; Hanson fled to call his sister to pick him up and had her call the police; Hanson returned to the scene later that night, saw Munguia’s bloodied and still body, and left to call the police again.
According to E lizondo : Hanson and Ramirez left together to walk Munguia home; after Elizondo told Elliott he had just had sex with Munguia, Elliott left to join Hanson and Ramirez; shortly thereafter, Elizondo left to join them, arriving under the bridge to find Ramirez having sex with Munguia; Elliott had sex with Munguia after Ramirez, and Elizon do after Elliott; Munguia then asked for her clothes; no one responded; and Munguia threatened to call the police.
Also according to Elizondo: Elliott told him “he [Elliott] had to kill Joyce [Munguia] and Danny [Hanson]”, that he was going to find a gun, and that Elizondo should stay to ensure they did not get away; Elliott returned with a motorcycle chain belt wrapped around his fist and found Munguia searching for her clothes; Elliott struck Munguia with the chain; Munguia fell to the ground; and Elizondo ran away, turning to see Elliott strike Munguia three more times with the chain.
Police officer s responded to HansonÂ’s calls and located MunguiaÂ’s body. They arrived at ElliottÂ’s house between 1:00 a.m. and 1:30 a.m. on 14 June. The shorts he was wearing were splattered with blood, as were his shoes.
The blood on ElliottÂ’s shorts matched the victimÂ’s blood type.
The blood on his shoes could not be typed, but the patterns on the soles were consistent with those found at the murder scene. Sperm collected from the victimÂ’s body had the same blood type as Elliott , Ramirez, and Hanson. During the autopsy, several metal fragmen ts were recovered from the victimÂ’s head. At trial, a forensic chemist testified that one of the fragments matched the motorcycle chain belt in such detail that, in his opinion, it had once been part of it. Elliott was convicted in January 1987 of murder in the course of committing aggravated sexual assault. At the punishment phase, the j ury returned affirmative answers to the special issues; Elliott was sentenced to death.
The conviction and sentence were affirmed on direct appeal.
Elliott v. State , 858 S.W.2d 478 (Te x. Crim.
App. 1993). The Supreme Court of the United States denied certiorari . Elliott v. Texas ,
The habeas court (Elliott’s trial court) did not hold an evidentiary hea ring. Instead, it ordered the submission of affidavits fr om: the prosecutors, regarding the prosecutorial misconduct and excul patory evidence claims; and Elliott’s trial counsel, regarding the ineffective assistance at trial claims. The court also authorized Elliott to “submit affidavits from any person with respect to [those] claims or any other c laims that he deems necessary”. In August 1998, that court entered findings and conclusions, recommending denial. In September 1999, the Court of Criminal Appeals adopted those findings and conclusions and denied relief.
Ex Parte Elliott , No. 42,654-01 (Tex.
Crim.
App. 1999).
Elli ott filed for federal habeas relief in February 2000. (The State expressly waived the one-year limitations period for state prisoner federal habeas petitions, 28 U.S.C. § 2244(d).) The federal petition raised many of the claims asserted in the state petition. The case was referred to a magistrate judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and F ED . R. C IV . P. 72.
The State m oved for summary judgment that July. That September, the magistrate judge granted ElliottÂ’s request for DNA testing. A stipulation submitted with the testing results indicated: Elliott could not be excluded as the donor of the sperm taken from the victim, when 99.99% of the population would be expected to be excluded; and the DNA profiles obtained from three bloodstains from ElliottÂ’s shorts were consistent with the profile g enerated from the victim. The magistrate judge ordered Elliott and the State to brief whether, in the light of the DNA tests or any other evidence, an evidentiary hearing was warranted.
Ell iott filed briefs in support of an evidentiary hearing, although the precise issues for which that hearing was requested were not clear. “[E]rr[ing] on the side o f inclusion”, the magistrate judge scoured Elliott’s briefs to identify the precise iss ues for which the hearing was sought. In a comprehensive 1 March 200 1 order, the magistrate judge addressed each issue and concluded a hearing was not warranted.
The case was delayed beca use certain records from ElliottÂ’s state habeas proceedings had not been made part of the record on file with the district court. After receiving those records, as well as briefs on whether anything contained in them impacted his prior rulings, the magistrate judge denied ElliottÂ’s motion for further discovery.
That August (2001), in an extremely thorough, 53-page report and recommendation, the magistrate judge recommended granting the State summary judgment and denying habeas relief. That September, following review of ElliottÂ’s objections and a de novo review, the district judge accepted the report and recommendation and denied habeas relief. It later denied a COA. II.
Because Elliott filed his federal petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 100 Stat. 1214, it applies. M artinez v. Johnson , 255 F.3d 229, 237 (5th Cir. 2001), cert. denied , 122 S. Ct. 1175 (2002). § 2253(c)(1)(A).
Appeals concerning 21 U.S.C. § 848(q)(4)(B), howe ver, which provides for, inter alia , § 2253(c)(2). This standard includes 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”. Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted).
The ruling on whether a COA should issue § 2254(d)§ 2254(d)(1) & (2). A state court decision is § 2254(e)(1).
A. Elliott presents two groups of claims: certain rulings during the federal proceedings ( e.g. , denial of funding for certain expert and investigatory assistance and of an evidentiary hearing); and the state trial proceedings. Over 20 issues are raised.
For Elliott’s 37-page brie f, 14 concern one issue — the district court’s denial of an evidentiary hearing. The brief lacks a statement of facts, is essentially devoid of record c itation, consists largely of conclusional allegations and inference, and, for the most part, simply attempts to “incorporate[] by reference” papers from earlier proceedings in this case. For example, regarding the u nderlying basis for a number of Elliott’s claims, alleged prosecutor ial misconduct, Elliott states: “The issue of prosecutorial misconduct has been briefed extensively and will not be briefed; however, the previous briefing is incorporated by reference.” A number of his issues have absolutely no briefing.
In short, regarding those issues that require a COA, and other than to repeat the Slack st andard, Elliott has made no effort to show that the issues are debatable among jurists of reason.
In its response, the State notes the inadequacy of ElliottÂ’s briefing and asserts that, as a result, his claims are abandoned.
Elliott did not file a reply brief or otherwise attempt to correct any of the noted deficiencies. (In the alternative, the State addresses the claims.) It goes without saying that issues not properly briefed will not be considered. S ee , e.g. , Martin v. Cain , 206 F .3d 450, 455 n.1 (5th Cir.), vacated on other grounds ,
But, even r egarding this issue, there is significant uncertainty in the relief sought. To obtain an evidentiary hearing, “[a] habeas petitioner must make specific allega tions; ‘ conclusory allegations unsupported by specifics[]’ ... will not entitle one to ... a hearing”. P erillo v. Joh nson , 79 F.3d 441, 444 (5th Cir. 1996) (quoting Blackledge v. Allison , 431 U.S. 63, 74 (1977)). This notwithstanding, the district court was “forced to scour [Elliott’s] briefs and make its bes t guess as to the identity of the matters on which [Elliott] seeks the right to present evidence on his petition”, because Elliott had failed to present “a clear statement of the claims on which [he] proposes to present evidence” or “a brief summary of the anticipated evidence”. After an extremely liberal consideration of Elliott’s briefing, the m agistrate judge concluded that Elliott “ appear[ed] to b e requesting an evidentiary hearing” on seven issu e s, including “[w]hether the prosecution engag e d in misconduct in eliciting allegedly false testimony [or] suppressin g the testimony of ...
Ramirez”. (Emphasis added.) In his briefing here, Elliott fails to rectify these deficiencies. It is not clear what evidence he seeks to produce, which claims the evidence will support, or how the evidence will support them. Rather, Elliott complains that “the trial court judge was never able to hear from the witnesses who mattered most, ...
Ramirez and his sisters”.
We conclude that Elliott has appealed the denial of an evidentiary hearing only to the extent he sought a hearing to produce testimony from Ramirez and his sisters in support of his claims that “the prosecution engaged in misconduct in eliciting a llegedly false testimony [or] suppressing the testimony of ...
Ramirez”. Elliott contends “there were many unresolved factual issues that he had not been able to develop at state court and therefore an eviden tiary hearing was required”; but, he fails to adequately brief any other factual issue or claim with respect to which he believes the district court erred by not holding an evidentiary hearing.
B. § 2254(e)(2)§ 2254(e)(2) (emphasis added).
Even where the basis for a claim remains undeveloped through no fault of the petitioner , or where the petitioner§ 2254(e)(2) exceptions, the petitioner is not n ecessarily e ntitled to a hearing. S ee Clark , 202 F.3d at 765 (§ 2254(e)(2) does not guarantee an evidentiary hearing[;] it only opens the door for one§ 2254(e)(2), that does not mean he is entitled to an evidentiary hearing § 2254 Cases, the district court retains discretion over the decision to grant an evidentiary hearing once a petitioner overcomes the barriers presented by § 2254(e)(2)”. C lark , 202 F.3d at 765.
To show abuses of discretion in an evidentiary hearing denial, a petitioner must establish, inter alia , that “if proven true, his allegations would entitle him to relief”. M urphy , 205 F.3d at 816 (emphasis added); Clark , 202 F.3d at 766 (emphasis added). As noted, the petitioner’s claim must be based on specific — not conclusory — allegations of fact. He is not authorized a fishing expedition, see Ward v. Whitley , 21 F.3d 1355, 1367 (5th Cir. 1994), cert . denied ,
Garcia wanted [Ramirez] to testify that he was present when the murder was committed”; “he refused the deal because he did not want to perjure himself”; “his refusal to testify against [Elliott] was because he ‘did not want to get mixed up in the case’ when he ‘knew that the other guys were changing their stories’”; and “he did not take their plea [offer], so that he could stay out of the case”. The investigator concluded: “The i mplication that the other guys [presumably Hanson and Elizondo] were lying was evident in the fact that [Ramirez] then stated that he was not willing to ‘budge’ from what he ‘knew to be the truth’”. (Emphasis added.) The State submitted affidavits from the two former prosecutors. The first provides: I did not solicit false testimony of ...
Ramirez, who participated in and was convicted for the sexual assault of Joyce Munguia, nor am I aware of any agent for the State of Texas who did solicit his false testimony. I negotiated a plea bargain agreement with ...
RamirezÂ’s attorney. The terms of the plea bargain agreement required ... Ramirez to provide the State with a complete and truthful confession regarding the sexual assault and m urder of Joyce Munguia and that he pass a polygraph examination. If ...
Ramirez met the conditions of the plea agreement, i[t] was ou[r] intention to call [him] to t estify in the trial of John William Elliott....
Ramirez failed the polygraph examination.
Consequently, I did not enter i n to a plea bargain agreement with his attorney and did not call ... Ramirez to testify in th e trial of John William Elliott. ....
The State did not conceal any solicitation of false testimony of ...
Ramirez. The second affidavit is substantially similar.
As is apparent, th e record concerning Elliott’s claims was well dev eloped when the state habeas court ruled that “the controverted, previously unresolved factual issues material to the legality of [Elliott’s] confinement c[ould] be resol ved on the basis of the affidavits filed and personal recollecti on by this court and without a[ live] evidentiary hearing”. It was in this light that the court made the following findings: “[t]he prosecutor ... negotiated for the testimony of [Elliott’s] codefendant, ...
Ramirez, with the condition that Ramirez pass a polygraph examination regarding the truthfulness of his statements”; “Ramirez failed the polygraph examination; therefore, t he negotiations ceased”; “[Elliott] has made no showing and has not filed or caused to be filed any affidavits of ... any ... witness with respect to his allegations of the solicitation of perjury or suppression of testimony by the state”; and “the prosecutors did not suppress such solicitation or suppress ion”.
The district court had this record before it when it denied an evidentiary hearing. Moreover, in accordance with our admonition that, “[i]n determining whether an evidentiary hearing is proper, the district court may expand the record and consider affidavits, exhibits, or other materials that cast light on the merits of the petition”, McDonald , 139 F.3d at 1060, the district court also considered a new affidavit from the same investigator who had spoken with Ramirez in 1997. It provides, in part: “When I spoke with [Ramirez’s sisters w ho had signed the 1987 letter], they indicated that they did not remember anything about the letter that they had written regarding allegations that the State wante d ...
Ramirez to testify to untruths at ...
Elliott’s trial.” T hat affidavit, coupled with the affidavits and lette r that had been considered in the earlier state proceeding, comp rised a well developed record on Elliott’s claims. “The district court had sufficient facts before it to make an informed decision on the merits of [those] claim[s]”, id . at 1060; consequently, it did not abuse its discretion in denying an evidentiary hearing. 2. Elliott appears to insist, however, that the factual basis for his claims was n ot well developed, through no fault of his own. Specifically, he asserts that, without a live evidentiary hearing, “the trial judge was never able to hear from the witnesses who mattered most, ...
Ramirez and his sisters§ 2254(e)(2) because any failure to develop the factual basis of his claims is attributable solely to the state court§ 2254(e)(2)(A) & (B), and makes no such attempt to carry that stringent burden”.) Even assuming that the factual basis for ElliottÂ’s claims remains undeveloped, with the fault not being ElliottÂ’s, the district court still did not abuse its discretion in denying an evidentiary hearing. As noted, to show abuse of discretion, Elliott must assert “specific allegations of fact”, Ward , 21 F.3d at 1367, that, “if proven true,... would entitle him to relief”, Murphy , 205 F.3d at 816 (emphasis ad ded); Clark , 202 F.3d at 765 (emphasis added).
Concerning Elliott’s claim that the prosecution entered into an agreement with Ramirez or intimidated him to keep him silent, the district court concluded: “[N]one of the hearsay statements in t he [Ramirez family] letter or [investigator’s] affidavit are inconsistent with the prosecutor’s statement that the plea agreement with Ramirez required that he provide a full statement and pass a polygraph test, and that when he failed the test she declined to call him at trial”; and “[n]othing in the evidence already gathered supports the claim that pros ecutors had an agreement with Ramirez to keep him silent — even Ramirez’s statements do not support that claim”.
Elliott does not address these points. Nor does he even attempt to suggest what Ramirez’s testimony might be if called as a witness. As the district court concluded: “Clearly, Elliott has no idea what Ramirez will state under oath”. Elliott’s claim that the prosecution attempted to suppress Ramirez’s testimony appears to be speculation; “[h]is request [for a hearing] in this regard is tantamount to an impermissible fishing expedition”. S ee Murphy , 205 F.3d at 816. The district court did not abuse its discretion i n denying an evidentiary hearing to determine whether the prosecution attempted to silence Ramirez. Regarding Elliott’s claim that calling Ra mirez (or his sisters) to testify in an evidentiary hearing would enable him to prove the prosecution knowingly presented perjured testimony (presumably from Hanson and Elizondo), the district court likewise did not abuse its discretion. “‘To establish a due process violation based on the State’s knowing use of false or misleading evidence, [a habeas petitioner] must show (1) the evidence was false, (2) the evidence was material, and (3) the prosecution knew that the evidence was false.’” B arrientes , 221 F.3d at 753 (alteration in original; quoting Nobles v. Johnson , 127 F.3d 409, 415 (5th Cir. 1997)). Elliott does not even identify evidence presented by the State, muc h less make specific allegations that it was false, material, or known to be false. As the district court noted, “the only evidence that could conceivably support the speculation that the prosecutor elicited false t estimony is an ‘implication’ that the investigator found to be ‘evident’ from what Ramirez told the investigator”.
C. In the alternative, notwithstanding the wholly inadequate briefing by Elliott for the other COA requests, and pursuant to our review, there was no substantial denial of a constitutional right.
Therefore, Elliott is not entitled to a COA for any of those issues. Likewise, there was no reversible error concerning the district courtÂ’s denial of expert and investigatory assistance.
III. For the foregoing reasons, ElliottÂ’s request for a COA is DENIED , and the denial of funding for expert and investigatory assistance is AFFIRMED .
COA DENIED; FUNDING-DENIAL AFFIRMED
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Jonathan Wayne Nobles, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 127 F.3d 409 (5th Cir. 1997)
- U.S. Court of Appeals for the Fifth Circuit - Pamela Lynn Perillo, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 79 F.3d 441 (5th Cir. 1996)
- U.S. Court of Appeals for the Fifth Circuit - Johnny Joe Martinez, Petitioner - Appellant v. Gary L Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent - Appellee, 255 F.3d 229 (5th Cir. 2001)
- U.S. Court of Appeals for the Fifth Circuit - Peel & Company, Inc., Plaintiff-Appellant-Cross-Appellee, v. the Rug Market, Defendant-Appellee-Cross-Appellant., 238 F.3d 391 (5th Cir. 2001)
- US Code - Title 21: Food and Drugs - 21 USC 848 - Sec. 848. Continuing criminal enterprise
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