132 F.3d 162 (5th Cir. 1997), 95-20134, Goodwin v. Johnson

Docket Nº:95-20134.
Citation:132 F.3d 162
Party Name:Alvin Urial GOODWIN, III, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:December 23, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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132 F.3d 162 (5th Cir. 1997)

Alvin Urial GOODWIN, III, Petitioner-Appellant,

v.

Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 95-20134.

United States Court of Appeals, Fifth Circuit

December 23, 1997

As Amended Jan. 15, 1998.

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Lynn Bernard Lamberty, Kansas City, MO, Gregory William Wiercioch, Houston, TX, for Petitioner-Appellant.

William Charles Zapalac, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for Respondent-Appellee.

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

Before KING, JOLLY and DeMOSS, Circuit Judges.

KING, Circuit Judge:

The opinion entered in this cause on December 23, 1997, is withdrawn, and the following opinion is substituted therefor.

Alvin Urial Goodwin, a Texas death row inmate convicted of capital murder, challenges the district court's denial of his petition for a writ of habeas corpus. Goodwin has alleged, among other things, that his appellate counsel provided constitutionally ineffective assistance because he failed to raise a state law issue that would have required reversal on direct appeal. We affirm the district court's denial of habeas relief on this claim because the trial court's error that formed the basis of this omitted issue on appeal did not render Goodwin's trial fundamentally unfair or its result unreliable. We also affirm the judgment of the district court denying relief in all other respects, except that we vacate that portion of the district court's judgment denying Goodwin habeas relief on his Fifth Amendment claim and remand for an evidentiary hearing to resolve the fact issue underlying that claim.

I. FACTUAL BACKGROUND

On December 1, 1986, Montgomery County Sheriff's deputies received a report of a theft at the trailer house of James Douglas Tillerson. Further investigation revealed that Tillerson's trailer house had been ransacked and that a VCR, some video cassettes, phonograph records, and a bayonet were missing from the house. Tillerson had not reported for work that morning and had not been seen since the previous Sunday. On January 17, 1987, trail riders discovered Tillerson's body approximately two and one-half miles from his trailer at the edge of the woods near Fawnmist Road in Montgomery County. An examination of Tillerson's body disclosed that he had been dead for approximately one month and had died from a gun-shot wound to the head. A second gun-shot wound had been made by a bullet entering Tillerson's right arm and exiting at the forearm. A bullet was recovered from the body's clothing and fragments of a bullet were later discovered in the immediate area where the body had been found.

Friends of Tillerson informed police that Tina Atkins, also a friend of the victim, had told them that a VCR, bayonet, and several video tapes from Tillerson's trailer were now at the house where she lived with her father, Billy Dan Atkins, Sr. Tina Atkins was able to name the titles of the video tapes, which corresponded with the titles of the tapes missing from Tillerson's trailer. Based on the information that she provided, a search warrant was issued for the residence of Billy Dan Atkins, Sr., who informed police that he had retrieved the items from the car of his son, Billy Dan Atkins, Jr. (Atkins).

Further investigation revealed that Atkins, Goodwin, Glenn Dierr, and Fred Meadows had been arrested for unlawful possession of a firearm by a felon on December 4, 1986, in The Woodlands, Texas. Following the arrest, Dierr stated during a police interview that he had been walking in the woods near Huntsville, Texas with Goodwin on December 5 when Goodwin showed him a fence post into which Goodwin claimed he had fired several rounds of a .357 magnum pistol. Goodwin also told Dierr that he had "blown someone away" with the weapon five weeks earlier and that the body was still in the woods. Ballistics testing revealed that all of the projectiles and hulls recovered on or near Tillerson's body were fired from a Smith & Wesson .357 magnum that had been found with Atkins, Goodwin, Dierr, and Meadows at the time of their arrest in The Woodlands.

On January 20, 1987, Texas law enforcement officials were notified that Goodwin and Atkins had been arrested and were in custody in Burlington, Iowa. During an interview in Iowa on January 21, the Texas officers

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told Goodwin that they had found the weapon used to kill Tillerson and that it was the same weapon taken from Atkins's car on December 4, 1986. Goodwin then admitted to having shot Tillerson and gave a videotaped confession to that effect. Goodwin waived extradition and was flown back to Montgomery County that evening.

The next morning, Texas law enforcement officials interviewed Goodwin in Montgomery County, and he later gave a written confession. According to Goodwin's written confession, on the night of the murder, he and Atkins drove by Tillerson's trailer between 8:00 and 10:00 p.m. Atkins and Goodwin had discussed the possibility of either obtaining a loan from Tillerson or robbing him. When Tillerson answered the door of his trailer home, Atkins and Goodwin entered and drew handguns. Atkins ordered Tillerson to sit down in a chair and demanded money. When Tillerson claimed that he had no money, Atkins ransacked the trailer. Unable to find more than some change, Atkins collected other items from the trailer. Atkins then ordered Tillerson to get dressed. Goodwin held his gun on Tillerson while Atkins loaded the items into his car. Atkins, Goodwin, and Tillerson left in Atkins's car, with Atkins driving, Tillerson in the back seat, and Goodwin in the front seat, pointing his gun at Tillerson. Atkins eventually stopped near a wooded area where he ordered Tillerson to get out of the car and walk ahead of Atkins and Goodwin into the woods. Atkins raised his gun, aimed at Tillerson and pulled the trigger two or three times, but the weapon did not discharge. Goodwin raised his gun, turned his head, and fired at Tillerson. Tillerson fell to the ground screaming. Thinking that he had only grazed the victim, Goodwin quickly raised his weapon and fired a second shot. When Goodwin saw blood coming out of Tillerson's head, he ran back to Atkins's car.

II. PROCEDURAL POSTURE

A Texas jury found Goodwin guilty of the murder of James Douglas Tillerson and sentenced Goodwin to death. The Texas Court of Criminal Appeals affirmed Goodwin's conviction, see Goodwin v. State, 799 S.W.2d 719 (Tex.Crim.App.1990), and the United States Supreme Court denied certiorari, see Goodwin v. Texas, 501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991).

Goodwin filed two petitions for writ of habeas corpus in state district court. The state district court declined to conduct an evidentiary hearing on either petition and recommended that both applications be denied. The state district court's orders recommending the denial of the petitions contain no findings of fact or conclusions of law; they merely state that "the Court ... finds that there are no controverted, previously unresolved facts material to the lawfulness of the confinement of applicant." The Court of Criminal Appeals accepted the recommendation of the state district court as to both petitions and summarily denied relief without findings of fact or conclusions of law.

On February 17, 1995, Goodwin filed a motion to proceed in forma pauperis (IFP), a motion for appointment of counsel in federal district court, a motion for stay of execution pending the completion of discovery and the submission of a formal habeas petition, and a formal motion for discovery. Goodwin's execution was scheduled for March 7, 1995. The district court granted the motions to proceed IFP and for appointment of counsel and denied the motions for stay and discovery.

Soon thereafter, Goodwin filed his federal petition for habeas relief and again filed motions for discovery, for a stay of execution pending the disposition of his habeas petition, and for an evidentiary hearing. The district court denied these motions. Goodwin appealed the denial of his second motion for a stay of execution, and we reversed the district court's order denying the stay and ordered the district court to enter an order staying Goodwin's execution pending determination of the merits of the claims presented in his federal habeas petition. The district court accordingly granted a stay.

Four days before Goodwin's scheduled execution date, the state answered and filed a motion for summary judgment on all of Goodwin's claims. Goodwin filed a cross-motion for partial summary judgment limited

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to his claim that his legal representation on direct appeal was unconstitutionally ineffective because his counsel failed to raise a meritorious claim that was properly preserved at trial.

The district court denied Goodwin's habeas petition, explaining its decision in a memorandum opinion. The district court also denied Goodwin's request for a certificate of probable cause to appeal (CPC) and lifted the stay of execution that it had previously imposed. Goodwin requested a CPC from this court to appeal the district court's denial of his petition for habeas relief. We granted a stay of execution, carried the request for CPC with the case, directed the parties to fully brief the appeal as on the merits, and heard full oral argument. Having concluded that a portion of the issues that Goodwin raises on appeal "are debatable among jurists of reason," we now grant the CPC and rule on the merits of the appeal. See Barefoot v. Estelle, 463...

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