Carter v. Johnson

Citation110 F.3d 1098
Decision Date09 April 1997
Docket NumberNo. 96-20334,96-20334
PartiesRobert Anthony CARTER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

James Peter Mercurio, Randall J. Boe, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, Richard M. Frankel, Bristow, Hackerman, Wilson & Peterson, Houston, TX, for Petitioner-Appellant.

Meredith Anne Martinez, Assistant Attorney General, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert Carter appeals the denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 (1996). We affirm the judgment and vacate the stay of execution.

I.

Carter was convicted of capital murder and sentenced to death in March 1982. His case, which has languished in the Texas courts for over a decade, now approaches its conclusion.

A.

Carter was arrested in 1981 and charged with the murder of Sylvia Reyes, who was fatally wounded during the robbery of a service station. 1 On June 27, 1981, Carter confessed in great detail to the murder but stated that the shooting had been accidental and denied any intent to kill Reyes. Pursuant to this confession, the police obtained the murder weapon identified by Carter, and ballistics experts confirmed that the revolver had been used in the murder.

B.

At trial, a witness identified as "David Josa" testified that he was entering the station on June 24, 1981, when he heard gunshots inside the station and observed two individuals leave it immediately thereafter. The first fled from the station but returned when the police arrived. The second, a young black man fitting Carter's description, emerged from the store with "a wad of money" in his left hand and fled. Josa observed this person for only a few seconds but did not see a gun, nor was he able subsequently to identify Carter as the second man.

Another witness, Arthur Mallard, corroborated Josa's testimony. Mallard identified himself as the first person out of the station and testified that he had observed a man fitting Carter's description reach across the counter to take money from the cash register. When the station attendant resisted, Mallard heard a gunshot and fled the store. He was unable to identify Carter as the man he had seen.

The defense offered no evidence to rebut the state, and the jury returned a verdict of guilty to capital murder. At the penalty stage, the state called witnesses to establish that Carter had committed another murder six days prior to the charged offense. Although none of the witnesses directly observed the second murder, one identified Carter as the man she observed fleeing the scene. Finally, the state introduced Carter's confession, in which he confessed to the second murder, once again.

In rebuttal, defense counsel offered the testimony of three witnesses--Carter, his mother, and a family friend--to establish Carter's good character. Carter testified that he had not intentionally killed the two victims and pledged to rehabilitate himself if sentenced to life imprisonment rather than death. Finally, in response to the character evidence, detective L.B. Smith testified that Carter's reputation as a peaceful and law-abiding citizen was "bad." After brief deliberation, the jury affirmatively answered the three special issues submitted pursuant to TEX.CODE CRIM. PROC. ANN. art. 37.071 (Vernon 1981), and the trial court imposed the death sentence.

C.

The instant appeal is before this court on Carter's first application for a federal writ of habeas corpus, following several fruitless attempts to obtain relief in the state courts. In March 1990, Carter filed his first application for a state writ of habeas corpus. In August 1995, the state trial court recommended that state habeas relief be denied, and the Texas Court of Criminal Appeals denied this first habeas petition in December 1995.

In August 1995, while the original state habeas petition was pending, Carter filed his second state habeas application, alleging that the length of time between his sentencing and his scheduled execution rendered his death sentence cruel and unusual punishment in violation of the Eighth Amendment. The state trial court recommended that habeas relief be denied, and the Court of Criminal Appeals denied this second application in January 1996.

Having finally exhausted his state remedies, Carter filed the instant federal habeas petition in January 1996, followed soon thereafter by a motion for discovery, a motion for an evidentiary hearing, and an application for stay of execution. On March 20, 1996, the court entered final judgment, denying habeas relief. Carter appealed, and the district court issued a certificate of probable cause ("CPC") on April 19, 1996.

II.

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), significantly altered the landscape of federal habeas corpus jurisprudence. First, the AEDPA imposed a jurisdictional prerequisite upon appeal from a final order in a habeas corpus proceeding in federal court, prohibiting the appeal unless a circuit justice or judge issues a "certificate of appealability." See AEDPA § 102 (to be codified at 28 U.S.C. § 2253(c)(1)). Second, the AEDPA amended the procedures governing collateral review of state convictions in federal court. See AEDPA §§ 101-106 (to be codified at 28 U.S.C. §§ 2241-2255). And finally, the AEDPA provided for expedited procedures governing federal habeas petitions in capital cases. See AEDPA § 107 (to be codified at 28 U.S.C. §§ 2261-2266).

Before reaching the merits of the instant case, consequently, we must consider the provisions of the AEDPA governing this appeal. First, it is incumbent upon this court to determine whether we have jurisdiction to entertain the appeal. Although neither party has challenged our jurisdiction, we are obliged to raise the issue of appellate jurisdiction sua sponte. 2

The AEDPA became effective April 24, 1996, five days after the CPC was issued. Under similar circumstances, we recently held that the COA requirement of the AEDPA does not apply to habeas applicants who obtained CPC's prior to the statute's effective date. See Brown v. Cain, 104 F.3d 744, 749 (5th Cir.1997). Accordingly, we have jurisdiction. 3

III.
A.

The amended standards of review established in the AEDPA governing federal habeas petitions are procedural in nature and therefore apply immediately to all habeas petitions pending on the effective date of the AEDPA. See Drinkard v. Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). Section 104(3) of the AEDPA, which amended the standard of review governing collateral federal review of state court convictions, provides 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

AEDPA § 104(3) (to be codified at 28 U.S.C. § 2254(d)).

Whereas the second subsection specifies the standard of review governing questions of fact, the first specifies distinct standards of review governing questions of law and mixed questions of law and fact. Drinkard, 97 F.3d at 767-68. When reviewing a pure question of law, a federal court may grant habeas relief only if the state court decision was "contrary to" clearly established federal law, as determined by the Supreme Court. In contrast, when reviewing mixed questions of law and fact, a federal court may grant habeas relief only if the state court decision "involved an unreasonable application of" clearly established federal law, as announced by the Supreme Court. Id. 4

B.

Although we have held that the amended standard procedures of the AEDPA apply immediately to all pending habeas petitions, we have also previously determined that the State of Texas has not yet qualified for the expedited procedures governing habeas corpus petitions in capital cases. See Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir.1996), vacated in part on other grounds, 105 F.3d 209 (5th Cir.1997). 5 Accordingly, we need not consider those procedures here.

IV.

Carter alleges that the state introduced the fraudulent testimony of an "imposter witness" at trial, thereby incriminating him and undermining the integrity of the verdict. To succeed on such a claim, Carter must establish three elements: first, that false testimony was presented at trial; second, that the prosecution had actual knowledge that the testimony was false; and third, that the testimony was material. May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied, 504 U.S. 901, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992). Carter cannot satisfy this standard.

A.

The sole evidence Carter offers to establish the first element is the affidavit of David Josza. Josza, who was identified as an eyewitness during the murder investigation, avers that he did not testify at Carter's trial. Nevertheless, the trial transcript indicates that an individual identified as "David Josa" testified for the prosecution, offering substantially the same testimony as the statement given by Josza during the investigation. Therefore, Carter concludes that the witness who testified at trial must have been an imposter. Even if we assume, arguendo, that the...

To continue reading

Request your trial
38 cases
  • Hughes v. Johnson
    • United States
    • U.S. District Court — Southern District of Texas
    • January 15, 1998
    ...relief may be granted when a state-court decision involves an unreasonable application of clearly established law); Carter v. Johnson, 110 F.3d 1098, 1106-08 (5th Cir.)("With a mixed question of law and fact, the facts are presumed correct and then the law is reviewed for reasonableness, no......
  • Rupert v. Johnson
    • United States
    • U.S. District Court — Western District of Texas
    • July 8, 1999
    ...U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). 26. 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). 27. See Carter v. Johnson, 110 F.3d 1098, 1103 (5th Cir.1997), vacated 522 U.S. 964, 118 S.Ct. 409, 139 L.Ed.2d 313 (1997); Hernandez v. Johnson, 108 F.3d at 557-58; Brown v. Cain, 1......
  • Lucas v. Johnson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 9, 1998
    ...in" under the AEDPA, the amendments to the federal habeas statutes do not govern this appeal. 28 U.S.C. § 2261(b); Carter v. Johnson, 110 F.3d 1098, 1104 (5th Cir.1997) (noting Texas fails to qualify to opt in under AEDPA); Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir.1996), vac'd in part o......
  • Carter v. Johnson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 12, 1997
    ...the district court issued a certificate of probable cause ("CPC") on April 19, 1996. We affirmed on April 9, 1997. See Carter v. Johnson, 110 F.3d 1098 (5th Cir.1997). On June 23, 1997, the Supreme Court decided Lindh v. Murphy, 521 U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Carter ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT