Conner v. Quarterman

• Decision Date: 29 January 2007
• Docket Number: No. 05-70021.,05-70021.
• Parties: Johnny Ray CONNER, Petitioner-Appellee, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.3d 287

Johnny Ray CONNER, Petitioner-Appellee, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 05-70021.

United States Court of Appeals, Fifth Circuit.

January 29, 2007.

Kenneth A. Williams (argued), University of Miami School of Law, Coral Gables, FL, Robert M. Rosenberg, Wilton Manors, FL, for Conner.

Woodson Erich Dryden, Asst. Atty. Gen. (argued), Austin, TX, for Quarterman.

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

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The district court granted Johnny Ray Conner's petition for habeas relief from the imposition of the death penalty for his conviction for capital murder in the course of a robbery. Nathaniel Quarterman, the Director of the Correctional Institutions Division of the Texas Department of Criminal Justice ("the Director"), appeals the grant of habeas corpus. The district court granted relief on Conner's ineffective assistance of counsel claim, premised on the argument that Conner's trial counsel failed to adequately investigate a leg injury that caused Conner to limp. We reverse the district court's grant of habeas corpus.

I. FACTUAL AND PROCEDURAL HISTORY

In May 1998, Kathyanna Nguyen, the victim, lived with Tony Tostado behind her grocery store in north Houston. Tostado owned a restaurant next door to the grocery store. On the afternoon of May 17, 1998, Tostado ate lunch with Nguyen and then went to his restaurant to clean up. Shortly thereafter, Julian Gutierrez stopped by the grocery store to get some gas. After pumping the gas, Gutierrez entered the store to pay and heard someone say, "Give me all your money." Gutierrez looked up from counting his own money to see a man pointing a gun at Nguyen's chest. When the robber saw Gutierrez, he turned and pointed the gun at him. Gutierrez dropped the money he was holding and ran from the store. As Gutierrez ran, the robber fired the gun at him, hitting him in the shoulder. Hearing several more gunshots, Gutierrez turned to see the robber shooting at Nguyen. He testified that the robber was wearing white tennis shoes, brown shorts, a white T-shirt, and a red cap. Gutierrez ran back to his car, where he began to feel faint, and he noted that the robber was running away from the store. Gutierrez later identified Conner as the robber.

Hearing gunshots, Tostado locked the doors to his restaurant and hurried over to the store. Upon entering the store, Tostado saw a man with a gun. Although Tostado attempted to grab the assailant, the man was able to get out of the store and run away. Tostado then saw Nguyen on the floor behind the counter bleeding profusely. He immediately called 911 on the pay phone outside the grocery store. While he was on the phone, Tostado saw the fleeing suspect and said that he was not wearing a hat. Tostado was unable to identify later the man he saw running.

Other individuals who were outside nearby businesses saw the assailant as he fled the grocery store, and several noted that the man was running with his hand underneath his shirt. Agnes Hernandez, who was stopped at a nearby intersection in her vehicle, decided to follow the robber to see where he went. She described the assailant as a black male wearing a white shirt and dark shorts. He was running with his hands under his shirt and was not wearing a hat. Hernandez never saw the suspect's face but stated that the suspect ran fast for more than a block.

Christine Flores was also driving in the area when she saw a man running down the street and had to slow down in order to avoid hitting him. The man looked directly at Flores as he ran. Flores later identified the man as Conner. She testified that the suspect was wearing blue jeans and no hat. She also stated that the man did not have a tattoo.¹

Michael Hamilton was driving with his wife, Martha Meyers, near the scene when they saw a man running from the grocery store. As the man crossed the road in front of them, he turned to look back at the grocery store, at which time Meyers was able to see his face. Meyers testified that the suspect was between five feet, ten inches, and six feet, one inch, tall, and wore blue shorts, a light gray T-shirt, a white Nike cap, and long pants. She also stated that the suspect had no tattoo on his face. Hamilton and Meyers followed Hernandez as she followed the fleeing suspect. The assailant ran for some distance before he reached a vehicle, got inside, and drove away. Meyers identified Conner as the man she saw, but Hamilton was never able to identify the suspect.

Hernandez continued to follow the assailant, seeing him almost run over a man and child as he sped away. Eventually, the suspect made his way to a freeway feeder road where he drove over the grass median to enter the freeway. Hernandez did not follow the vehicle onto the freeway but returned to the scene and told Tostado the direction in which the vehicle fled.

Melecio Sanchez was sitting in a nearby bar. He heard two shots and saw a black man come running out of the store. Sanchez testified that the suspect was wearing a blue cap, white shirt, and dark shorts.

At the scene, Tostado and several others entered the store to help Nguyen. Several witnesses noted that there was money scattered and a great deal of blood on the floor around Nguyen's body. The cash register was open, and there was blood inside the drawer. The police also discovered a juice bottle on the floor near the counter from which they recovered Conner's fingerprint. Another fingerprint was also on the container, but the second fingerprint was never identified.

When the investigation of the crime narrowed to focus on Conner, Conner's photograph was included in a photo spread of suspects shown to witnesses. Three separate witnesses, Gutierrez, Flores, and Meyers, identified Conner from the photo spread. Conner turned himself in to the Harris County Jail on June 17, 1998. Prosecution witnesses presented all of the above evidence at trial; the defense called no witnesses in the guilt/innocence phase of the trial.

Conner was convicted of capital murder for intentionally killing Nguyen by shooting her with a deadly weapon during the commission or attempted commission of a robbery. At the punishment phase of the trial, the State offered evidence of Conner's prior offenses, while the defense offered evidence from family members about Conner's troubled upbringing. The jury returned a death sentence, and the trial court sentenced Conner to death. The Texas Court of Criminal Appeals affirmed Conner's conviction and sentence on September 21, 2001. Conner v. State, 67 S.W.3d 192 (Tex.Crim.App.2001).

Conner filed a state habeas petition, alleging, among other things, ineffective assistance of counsel. Conner argued that, while several witnesses noted that the suspect ran very quickly for some distance from the scene of the crime, he could not run easily because of a leg injury in 1996 that caused him to limp on his right side. He also urged that he could not have committed the crime because none of the witnesses noted that the assailant limped. He contended in state habeas proceedings that his trial counsel were ineffective for failing to discover this exculpatory information. His trial lawyers, Ricardo Rodriguez and Jonathan Munier, submitted affidavits to the court, explaining that while they knew Conner had injured his leg, he never mentioned any continuing problems with it and neither of them noticed that Conner limped. The state court found, without conducting any evidentiary hearings, that Conner's attorneys were credible, that they fulfilled their duty as his counsel, and that trial counsel had a reasonable trial strategy. The Texas Court of Criminal Appeals affirmed the lower court.

On December 10, 2002, Conner filed a timely petition for writ of habeas corpus with the federal district court in the Southern District of Texas under the Antiterrorism and Effective Death Penalty Act (AEDPA). Conner again alleged ineffective assistance of counsel for his lawyers' failure to discover his condition, known as "foot drop." Conner's federal habeas petition included several exhibits that were not attached to his petition for state habeas relief, including general information about foot drop and medical records. The medical records included notes from a physician's assistant (PA) who conducted Conner's initial physical after he was convicted. The PA noted that Conner was still afflicted by foot drop at the time of his incarceration, although Conner had to bring the condition to the PA's attention for him to notice it. In addition to the medical records, Conner attached an affidavit, which was introduced during state habeas proceedings as well, from a registered nurse named Fran St. Peter who testified that she did not believe that Conner could have run three blocks at the time of his injury without limping. The affidavits of his trial attorneys that were introduced at the state habeas proceedings were also attached. The Director moved for summary judgment. The district court ordered an evidentiary hearing on Conner's ineffective assistance of counsel claim based on his leg injury and his lawyers' alleged failure to investigate. The Director objected that the standard of 28 U.S.C. § 2254(e) had not been met, but the district court overruled this objection.

At the evidentiary hearing, Dr. Jeffery Gaitz, a board-certified neurologist, testified that Conner's medical records indicated that he had on-going nerve damage that still affected his movements in September of 1999. In a video taken specifically for the evidentiary hearing, apparently without Conner's knowledge, Conner appears, in Dr. Gaitz's opinion, to limp on his right leg when he walks. Dr. Gaitz, based on the video, opined that Conner's limp would be more apparent if Conner were walking...