Kyles v. Whitley

• Decision Date: 14 October 1993
• Docket Number: No. 92-3310,92-3310
• Citation: 5 F.3d 806
• Parties: Curtis Lee KYLES, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, etc., et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 806

5 F.3d 806

Curtis Lee KYLES, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, etc.,

et al., Respondents-Appellees.

No. 92-3310.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 1993.

George W. Healy, III (court-appointed), Sheryl Bey, Phelps Dunbar, Gerard A. Rault, Jr., New Orleans, LA, for petitioner-appellant.

Jack C. Peebles, Harry F. Connick, Dist. Attys., New Orleans, LA, for Whitley.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Curtis Lee Kyles, an inmate sentenced to capital punishment, appeals the judgment of the district court, denying him the writ of habeas corpus. In 1984, a Louisiana court convicted Kyles of shooting and killing Mrs. Dolores Dye during a daylight armed robbery before many witnesses. As he did before the jury that convicted and condemned him, Kyles asserts innocence and maintains that he was framed by a now-deceased acquaintance. Although phrasing his claims in constitutional terms, Kyles essentially asks this court to reconsider the defensive theory rejected by the jury nine years ago. We affirm.

Kyles alleged numerous constitutional violations in his petition for writ of habeas corpus. In a thorough, forty-six page opinion and order, the district court rejected all of them. ^* On appeal, Kyles narrowed his focus by briefing only two claims, under Brady and Strickland. ¹ As a habeas court, we do not sit to rehear Kyles' trial. Nonetheless, because both Brady and Strickland analyses inquire into probable effects on trial outcomes, we begin by emphasizing this conclusion: a complete reading of the record demonstrates that Kyles faced overwhelming evidence of guilt. In particular, three eyewitnesses positively identified Kyles among a photographic lineup within 96 hours of the murder. Those three, joined by a fourth eyewitness, testified at trial that Kyles was definitely the gunman, even after comparing him with the man that Kyles contends framed him. None of the evidence offered by Kyles--or that he alleges he was prevented from offering--effectively undermined the powerful weight of this eyewitness testimony.

We also note that the limited focus of a federal habeas court was recently emphasized when the Supreme Court held that "the standard for determining whether habeas relief must be granted is whether the ... error 'had a substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). This standard controls all trial, as distinguished from structural, errors--those whose impact may be quantitatively assessed in the context of other evidence in order to determine their effect on trial outcomes. See Arizona v. Fulminante, 499 U.S. 279, ----, 111 S.Ct. 1246, 1249, 113 L.Ed.2d 302 (1991).

I

On December 7, 1984, a Louisiana jury convicted Curtis Lee Kyles of first degree murder for violation of La.R.S. 14:30 and sentenced Kyles to death. ² The conviction and sentence were affirmed on direct appeal by the Supreme Court of Louisiana in a published opinion. State v. Kyles, 513 So.2d 265 (La.1987), cert. denied, 486 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988). The Supreme Court of the United States denied Kyles' petition for a writ of certiorari on Soon after the state court set an execution date, Kyles commenced this habeas corpus proceeding in federal court pursuant to 28 U.S.C. Sec. 2254. The federal district court reviewed the entire record, including the transcripts and pleadings from the trial court, direct appeal, and state collateral proceedings. Concluding that Kyles was given a fundamentally fair trial with able assistance by counsel, the district court denied Kyles' petition for writ of habeas corpus on March 24, 1992.

direct appeal. On January 2, 1989, Kyles commenced state habeas corpus proceedings by petitioning the state district court for a stay of execution, post-conviction relief, writ of habeas corpus, and a new trial based on newly-discovered evidence. This petition alleges that Kyles' constitutional rights had been violated in twenty ways. Following an evidentiary hearing ordered by the Louisiana Supreme Court, the state district court denied Kyles' motions and rendered judgment. In September 1990, the Louisiana Supreme Court denied Kyles' application for review of the judgment.

Kyles filed a notice of appeal on April 2, 1992. The district court issued a certificate of probable cause. After filing his notice of appeal, Kyles filed a Rule 60(b) motion for post-judgment relief in the district court, claiming newly-discovered evidence. We granted a motion to hold this appeal in abeyance pending the disposition of that motion. The district court denied the Rule 60(b) motion on June 2, 1992. On August 7, 1992, we vacated the district court's June 2, 1992 order and remanded with instructions to deny Rule 60(b) relief on the ground that a petitioner may not use a Rule 60(b) motion to raise constitutional claims that were not included in the original habeas petition. This appeal then proceeded.

II

At approximately 2:20 p.m. on September 20, 1984, Mrs. Dolores Dye, a sixty-year-old woman, was murdered in the parking lot at the Schwegmann Brother's grocery store on Old Gentilly Road in New Orleans. Testimony at trial established that a young black man accosted Mrs. Dye as she placed her groceries in the trunk of her red Ford LTD. One witness testified that the victim threw her purse into the trunk, slammed the lid, and tried to get away. The assailant grabbed her, they began struggling, and he wrestled her to the ground. Finally, the assailant drew a revolver from his waistband and fired it into Mrs. Dye's left temple, killing her instantly. The gunman then took Mrs. Dye's keys from her hand, got into the Ford LTD, and drove from the parking lot. After turning onto the street, a traffic light caused the LTD to stop beside a truck driver, Robert Territo, who had seen the shooting and then viewed the gunman's face at close range. Another witness, Isaac Smallwood, was working at the corner of the parking lot. The LTD drove close by him after it left the parking lot, allowing Smallwood to see the driver's face. Henry Williams was also working outside at the parking lot. He witnessed the struggle and murder and saw the gunman's face as the LTD passed slowly by on the street within twelve feet of him.

Police spoke to Smallwood, Williams, and three other eyewitnesses at the scene. Later, Territo and Darlene Cahill called police to report witnessing the murder. All of these witnesses described a young black man, who wore a dark-colored shirt, blue jeans, and his hair in plaits.

The investigation was aided on Saturday night, September 22, when Joseph "Beanie" Wallace informed officers that a man named "Curtis" had sold him a red Ford LTD. Using the address Beanie provided, police found Curtis Kyles' name and Beanie identified Kyles' photograph. Beanie stated that on Friday, he paid Kyles $400.00 for the LTD and drove it around New Orleans. Only later did he connect the car with the murder and call police. Detective John Miller testified during post-conviction proceedings that Beanie had spoken to him on previous occasions about various, unrelated shootings, although this case was the first time that Detective Miller could use Beanie's information because it was a homicide. Around midnight, Beanie led police to the car that Kyles sold him. Police soon established For security purposes, a police officer was wired to record this conversation. During it, Beanie informed officers that Kyles lived at 2313 Desire, the apartment of Kyles' common-law wife, Martina "Pinky" Burns. ⁴ Beanie claimed that Kyles had removed Schwegmann's grocery sacks from the LTD before turning it over to Beanie. Acting on this information, Detectives Lambert and Saladino went to Desire Street at 1:00 a.m., Monday morning, September 24. They picked up five identical plastic bags of garbage that had been placed outside Kyles' residence. Inside one of those garbage bags, police found the victim's purse, identification, and other personal belongings wrapped in a Schwegmann's paper grocery sack.

that the LTD in Beanie's possession belonged to the victim. ³

A search warrant for the Burns/Kyles residence had been issued at 6:07 p.m. on September 23. At approximately 10:40 a.m. the following day officers arrested Kyles outside the residence and searched the apartment. Behind the stove, they found a .32 caliber revolver that contained five live rounds and one spent cartridge. Ballistics tests later confirmed that this pistol was used to murder Mrs. Dye. In a chifforobe in another part of the residence, officers found a homemade shoulder holster that fit the murder weapon. They also discovered two boxes of ammunition in a bedroom dresser drawer. One box contained .32 caliber rounds of the same brand as those found in the pistol.

Back in the kitchen, pet food was found in Schwegmann's sacks located in a cabinet with pots and pans. No other human or pet food was located in that cabinet. Several cans of cat and dog food were discovered, including Nine Lives brand cat food and Kal-Kan brand dog food. No pets, however, were present in the household. Detective Dillman testified that police found no cat litter nor a litter box, although a photograph of the chifforobe shows a bottle labelled "Hart Flea." The victim's husband, Mr. Robert Dye, testified at trial that his wife usually purchased several brands for their cats and dogs, including Nine Lives and Kal-Kan.

Partial fingerprints were found on the victim's effects, but none was sufficient for an identification. No fingerprints were found on the murder weapon or in...