131 F.3d 452 (5th Cir. 1997), 96-20334, Carter v. Johnson

Docket Nº:96-20334.
Citation:131 F.3d 452
Party Name:Robert Anthony CARTER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:December 12, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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131 F.3d 452 (5th Cir. 1997)

Robert Anthony CARTER, Petitioner-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 96-20334.

United States Court of Appeals, Fifth Circuit

December 12, 1997

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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, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

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

On Remand from the Supreme Court of the United States

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.


Carter was convicted of capital murder and sentenced to death in March 1982. His case,

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which languished in the Texas courts for over a decade and recently reached the Supreme Court, has now been remanded to this court for further action.


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 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 ballistic experts confirmed that the revolver had been used in the murder.


At trial, a witness identified as "David Josa" testified that he was entering the service station when he heard gunshots inside and observed two individuals leave it immediately thereafter. The first fled 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.


In 1990, Carter filed his first state habeas petition. 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 federal district court entered final judgment, denying habeas relief. Carter appealed, and

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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 then petitioned for writ of certiorari, raising, as his sole issue, whether the Supreme Court, "under its customary 'GVR' practice, 2 should remand this case for further proceedings in light of Lindh v. Murphy...." (Citation omitted.) The Court in fact did so, vacating and remanding "for further proceedings in light of Lindh...." (Citation omitted.) See Carter v. Johnson, --- U.S. ----, 118 S.Ct. 409, 139 L.Ed.2d 313 (1997).



Our initial opinion, 110 F.3d at 1103, involved an interpretation of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), 3 that has since been rejected by the Supreme Court. In Lindh, the Court rejected the argument that the procedural rules established in chapter 153 of the AEDPA, 28 U.S.C.A. § 2254(d) (1997), could be applied to cases initiated before the AEDPA's effective date. See Lindh, 521 U.S. at ----, 117 S.Ct. at 2068.

In our initial opinion, we held that the AEDPA's procedural provisions could be applied to Carter's habeas petition despite the fact that his case was initiated before the effective date. Carter, 110 F.3d at 1103. On the basis of this holding, we applied a highly deferential standard of review to the state and district habeas courts' conclusions regarding questions of law and mixed questions of law and fact. We assume that the Supreme Court remanded so that we may apply the correct standard of review to Carter's appeal.


Before reaching the merits, we must decide whether we have jurisdiction to entertain the appeal. Although neither party has challenged our jurisdiction, we are obliged to raise the issue sua sponte. 4

The AEDPA became effective April 24, 1996, five days after Carter's CPC was issued. Under similar circumstances, we recently held that the AEDPA's requirement of a COA 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.


When we initially decided this case, we followed 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), and held that the amended standards of review established in § 104(3) the AEDPA (codified at 28 U.S.C. § 2254(d) (1997)) are procedural in nature and therefore apply immediately to all habeas petitions pending on the effective date of the AEDPA. See Carter, 110 F.3d at 1103. Under Lindh, however, this was error, and § 104(3) of the AEDPA does not apply to this case. Accordingly, we must take a fresh look at Carter's appeal, applying traditional standards of review to

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the district court's conclusions of law and applications of law to fact. 5


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.1992). Carter cannot satisfy this standard.


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 testimony was fraudulent, the introduction of fraudulent testimony is insufficient by itself to entitle Carter to habeas relief. 6


The Fourteenth Amendment is implicated by the introduction of fraudulent or perjured testimony only if the prosecution has actual knowledge of the perjury. 7 We have consistently stated that this requirement imposes a strict burden of proof on a federal habeas petitioner. See, e.g., May, 955 F.2d at 315; Koch v. Puckett, 907 F.2d 524, 531 (5th Cir.1990). Carter cannot satisfy this burden.

Carter relies exclusively on circumstance and inference, arguing that an "imposter witness" could not possibly testify at trial without the substantial complicity of the prosecution. To rebut this inference, the state introduced the affidavit of then-prosecutor Brian Rains, which the state court found to be credible, averring that he would not knowingly or intentionally present an imposter witness at trial. After...

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