210 F.3d 481 (5th Cir. 2000), 99-10801, Hill v Johnson

Docket Nº:99-10801
Citation:210 F.3d 481
Case Date:April 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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210 F.3d 481 (5th Cir. 2000)

MACK ORAN HILL Petitioner - Appellant



No. 99-10801


April 20, 2000

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Appeal from the United States District Court for the Northern District of Texas

Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.

KING, Chief Judge:

As is required under 28 U.S.C. § 2253(c), Texas death row inmate Mack Oran Hill requests that we grant a certificate of appealability to enable him to obtain review of the district court's denial of habeas relief. For the reasons that follow, we deny his request.


Following a jury trial, Mack Oran Hill ("Hill") was convicted of capital murder on July 7, 1989, and was sentenced to death on August 3, 1989. The Texas Court of Criminal Appeals affirmed his conviction and sentence on May 5, 1993. Hill's writ of certiorari was denied on June 13, 1994. See Hill v. Texas, 512 U.S. 1213 (1994).

Hill was appointed counsel to represent him in state habeas proceedings on March 24, 1997. With the permission of the Court of Criminal Appeals, Hill's counsel filed in state court on April 11, 1997 a skeletal petition for habeas relief, and filed a complete petition on December 17, 1997. In the latter petition, Hill asserted eight grounds for relief. On August 5, 1998, the state habeas court, which was also Hill's trial court, held an evidentiary hearing on Hill's claim that the district attorney improperly withheld information as to the existence of a deal for leniency with several witnesses who testified at Hill's trial. Shortly after the conclusion of that hearing, the state court recommended that relief be denied, and on November 12, 1998 issued its findings of fact and conclusions of law. The Texas Court of Criminal Appeals denied relief with written order on February 24, 1999.

Hill's counsel almost immediately filed a motion for equitable tolling of the statute of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, arguing that the significant delay in appointing counsel for purposes of Hill's

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state habeas proceedings warranted tolling. The filing of the skeletal petition had stayed the statute of limitations, see 28 U.S.C. § 2244(d)(2), but left only 13 days remaining in Hill's one-year grace period. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998) (applying rule announced in United States v. Flores, 135 F.3d 1000 (5th Cir. 1998), to petitions filed under 28 U.S.C. § 2254 and thus allowing prisoners whose convictions were final before AEDPA's effective date until April 24, 1997 to file petitions in federal court). The court denied the benefits of equitable tolling, but construed Hill's motion as one for an extension under 28 U.S.C. § 2263. The court granted an extension until March 31, 1999.

Hill filed his petition seeking federal habeas relief on March 30, 1999. He filed motions under 21 U.S.C. § 848(q)(4)(B) seeking the assistance of a forensic expert (on June 7, 1999), and of an investigator for discovery purposes (on June 11, 1999), and under Rule 6 of the Rules Governing Section 2254 Cases seeking additional discovery (on June 11, 1999). Each of these motions was denied the same day it was filed. The district court held on June 11 a hearing regarding Respondent Gary L. Johnson's ("Respondent") June 10 motion for summary judgment, and on July 1, issued its findings of fact and conclusions of law, granted Respondent's motion, and entered a judgment dismissing Hill's petition with prejudice.

Hill filed a timely notice of appeal. He sought a certificate of appealability ("COA") from the district court on June 30, 1999. The district court declined to grant a COA on any of the issues he raises before us.


Hill seeks a COA from this court on four issues relating to his state trial. Hill alleges that the district attorney failed to reveal implied understandings for leniency between himself and several witnesses, failed to correct false and misleading testimony, and failed to disclose impeachment evidence. He also asserts that his due process and equal protection rights were violated when the Texas Court of Criminal Appeals failed to utilize the "reasonable alternative hypothesis" construct for review of the sufficiency of circumstantial evidence entered against him, in direct contravention of its own decision to apply that construct to cases such as his. In addition, Hill challenges the district court's denial of his motions requesting additional discovery, and the assistance of a forensic expert and of an investigator, and its granting of Respondent's motion for summary judgment.

Hill's petition for federal habeas relief was filed on March 30, 1999, and therefore his case is governed by the provisions of the AEDPA. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). Under 28 U.S.C. § 2253(c)(1)(A), Hill must first obtain a COA before he may obtain appellate review of the district court's denial of habeas relief. A COA can issue only if Hill makes a "substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). Such a showing "requires the applicant to 'demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.'" Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997). We resolve doubts about whether to grant a COA in Hill's favor, and we may consider the severity of his penalty in determining whether he has met his "substantial showing" burden. See Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert. denied, 522 U.S. 963 (1997).

In assessing whether Hill is entitled to a COA, we must keep in mind the

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deference scheme laid out in 28 U.S.C. § 2254(d). See Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.), cert. denied, 120 S.Ct. 22 (1999). Under that scheme, we review pure questions of law and mixed questions of law and fact under § 2254(d)(1), and review questions of fact under § 2254(d)(2), provided that the state court adjudicated the claim on the merits. See 28 U.S.C. § 2254(d). The Texas Court of Criminal Appeals explicitly adopted the findings of fact and conclusions of law of the trial court, and denied relief. This qualifies as an "adjudication on the merits." See Trevino, 168 F.3d at 181; Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).

As a result, we must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, __ U.S. __ , 120 S.Ct. 1495, 2000 WL 385369, at *28 (2000). Under § 2254(d)(1)'s "unreasonable application" language, a writ may issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 120 S.Ct. at ___, 2000 WL 385369, at *28. Factual findings are presumed to be correct, see 28 U.S.C. § 2254(e)(1), andwe will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2).


In his first challenge, Hill contends that the State violated the commands of Giglio v. United States, 405 U.S. 150 (1972), in failing to reveal implied understandings for leniency between the district attorney and two witnesses, Danny and Allen Crawford. The Crawfords testified at Hill's trial regarding the removal of property from the shop of the individual Hill was accused of murdering. That an accused's constitutional rights are violated when the State withholds material evidence affecting the credibility of witnesses is well-established. See, e.g., Pyles v. Johnson, 136 F.3d 986, 998 (5th Cir.), cert. denied, 524 U.S. 933 (1998). In general, a petitioner seeking habeas relief who asserts that the State violated its duty to disclose material evidence must demonstrate that (1) the prosecution withheld evidence, (2) the evidence was favorable to the petitioner, and (3) the evidence was material. See Pyles, 136 F.3d at 998; Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996). "[E]vidence ismaterial only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). As the Supreme Court has noted, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995).

The state habeas court conducted an evidentiary hearing regarding Hill's contention that the State withheld evidence of deals for leniency, and reviewed an audio tape that the district attorney had made of a telephone conversation between himself and David Schulman, the attorney for Allen Crawford. The court subsequently

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denied relief, finding that there were ...

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