Horn v. Quarterman

Citation508 F.3d 306
Decision Date15 November 2007
Docket NumberNo. 05-70059.,05-70059.
PartiesPatrick HORN, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Franklin Ray Mickelsen, Jr. (argued), Broden & Mickelsen, Dallas, TX, for Horn.

Thomas M. Jones (argued), Austin, TX, for Quarterman.

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

Before GARWOOD, BARKSDALE and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Patrick Horn (Horn) was convicted of capital murder in Texas state court and sentenced to death. After Horn filed a petition for habeas relief under 28 U.S.C. § 2254 in federal district court, the United States Supreme Court decided Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), declaring unconstitutional the execution of those under eighteen at the time of their crime. The district court stayed Horn's case to allow him to pursue in state court his claim that because he was seventeen years old at the time he committed the murder, his execution would violate the Eighth Amendment's prohibition on cruel and unusual punishment. The Texas Court of Criminal Appeals granted Horn relief and commuted his death sentence to life imprisonment. Ex parte Horn, No. 75,262, 2005 WL 2455187 (Tex.Crim.App. October 5, 2005). The district court then sua sponte lifted the stay and denied Horn's petition for habeas relief, but granted Horn a certificate of appealability on his remaining two claims. Because we find that these claims lack merit under the governing standards, we affirm.

FACTS AND PROCEEDINGS BELOW

On October 13, 1991, eight-year-old Chad Choice (Choice) was reported missing from his home in Tyler, Texas. Choice's older sister told police investigators that her house keys had gone missing the day before; she recalled leaving them by the back door to their residence. Local police interviewed various individuals — including Horn, who was a family friend and who had been at the family's house on October 12th. Finding no evidence of forced entry or struggle, officers initially treated the case as if Choice had run away.

Two days after Choice's disappearance, a ransom note was found at the business of Choice's uncle, Greg Sterling (Sterling), and the investigation immediately shifted to one of kidnapping. The Sterling family was perceived to be wealthy, although in fact Sterling's business was in poor financial shape. While surveillance of the place of exchange indicated in the ransom note failed to produce any leads, several days later Choice's mother received an anonymous phone call stating that Choice's disappearance was related to a family member's drug debt to a man named Paco. Investigators learned that Sterling owed money to three Colombian drug dealers operating in the area: Paco, Junior, and Carlos.

Efforts to locate Choice were unfruitful. America's Most Wanted aired a segment on Choice's disappearance that led to several reports of sightings, but none of these reports led to Choice's discovery. On the first anniversary of Choice's disappearance, a family member found a note under her car's windshield wiper, suggesting that Choice was alive and available for ransom. The note was given to police, but Choice was not located.

On October 10, 1994, FBI agents arrested and incarcerated Horn on unrelated charges that included two federal credit union robberies and a carjacking, in which a victim, James Levassar, was killed. In March 1995, Horn and federal authorities entered into a written plea agreement, signed by Horn and his counsel and the Assistant United States Attorney, in relation to those charges.1 In exchange for Horn's cooperation, federal authorities agreed not to oppose favorable consideration of Horn at sentencing. The agreement expressly stated, however, that federal authorities would not file a motion to reduce Horn's sentence under United States Sentencing Guidelines Manual § 5K1.1.2 Pursuant to the plea agreement Horn was to provide all information known to him regarding any criminal activity and was to submit to interviews by both federal and Smith County investigators. The agreement noted that it was distinct from any agreement with state law enforcement and that it could not bind Smith County whose district attorney intended to prosecute Horn for the murder of Levassar.3

In a separate agreement with Horn also related to the carjacking, the Smith County district attorney's office agreed that, while it would prosecute Horn for the murder of James Levassar — the victim of the carjacking — in exchange for Horn's cooperation, it would not seek the death penalty.

In late 1995 or early 1996, Horn started hinting to federal authorities that he had information about Choice's disappearance.4 On October 16, 1995, Sterling's girlfriend discovered a human skull and a note on the doorstep of the residence that she and Sterling shared. A forensic anthropologist later determined that the teeth in the skull suggested the deceased had been around nine years old at the time of death. Several months later, in April of 1996, while Horn was detained on the carjacking charges at the Smith County jail, Horn received a package that included a child's leg bone and a note. On May 24, 1996, upon Horn's defense attorney's consent, the FBI arranged for Choice's mother to confront Horn in his jail cell. Horn, however, did not admit any involvement at that time.

On May 31, 1996,5 Horn was scheduled to be sentenced in federal court for the credit union robberies and carjacking charges. In an in camera proceeding on that date, the federal district court judge told Horn that he was aware that authorities thought he might know something about Choice's disappearance and advised Horn to consult with his attorney (Scrappy Holmes) about what he might know and whether he might be able to get immunity. Horn, Horn's defense attorney, and the federal prosecutor were present during the in camera proceeding.

Later that day, Horn told the FBI the location of Choice's body. Horn admitted that he had been involved in the drug trade with the three Colombians — Paco, Carlos, and Junior. He stated that he bought drugs from the Colombians and then sold some of those drugs to Sterling. Horn stated that Sterling owed the Colombians a substantial amount of money, and that because of this debt, the Colombians requested that Horn steal the keys to Choice's home. Horn stated that he had done so and had given the keys to Carlos. According to Horn, Paco and Carlos kidnapped Choice in an attempt to collect Sterling's drug debt. Horn claimed that after the Colombians abducted Choice, they picked him up in their car and drove him and Choice to an isolated location in East Texas. There, Horn claimed, Paco shot and killed Choice. Also according to Horn, a few days after Choice's abduction and murder, Paco and Carlos arrived at Horn's home and ordered Horn to bury Choice in his backyard. Horn claimed that he did so because he feared losing his own life. Horn led the FBI to the murder scene and the burial site.

On March 31, 1997, Horn was indicted for the capital murder of Chad Choice in Tyler, Smith County, Texas. Horn pleaded not guilty and his case proceeded to trial in the District Court of Smith County, Texas, 241st Judicial District. Horn moved to suppress the statements he made to federal authorities on or shortly after May 31, 1996. After conducting a pretrial evidentiary suppression hearing, the state trial court denied Horn's motion, finding that Horn's statements were made voluntarily. Horn also objected to the admission of testimony through two-way closed-circuit television by state prosecution witness John Birk (Birk), who was terminally ill with cancer and being treated in Ohio. The trial court overruled Horn's objection and allowed the introduction of Birk's testimony by the two-way system. Horn did not testify.

On October 4, 1999, Horn was convicted of the capital murder of Choice — specifically, murder committed in the course of committing kidnapping. TEX. PENAL CODE § 19.03(a). Horn was sentenced to death. TEX.CODE CRIM. PROC. art. 37.071. Judgment was originally entered on October 12, 1999. An amended judgment was signed and entered on March 20, 2000.

An automatic direct appeal to the Texas Court of Criminal Appeals was entered on February 26, 2001. Horn asserted various grounds for relief — including his claims that the trial court should not have allowed prosecutors to introduce Horn's statements made May 31, 1996 or shortly thereafter because they were made involuntarily, and that his confrontation right was violated when the trial court allowed Birk to testify by two-way closed-circuit television. In a some thirty page unpublished opinion, the Texas Court of Criminal Appeals (TCCA) rejected these arguments and affirmed Horn's conviction and sentence. Horn v. State, No. 73,684 (Tex. Crim.App. Dec. 4, 2002) (en banc). The United States Supreme Court denied certiorari on October 6, 2003. Horn v. Texas, 540 U.S. 835, 124 S.Ct. 88, 157 L.Ed.2d 64 (2003). Horn also filed an application for writ of habeas corpus in state court.6 The state trial court entered findings of facts and conclusions of law and recommended that relief be denied on December 3, 2002. The TCCA adopted the trial court's findings and conclusions and denied state habeas relief on March 5, 2003. Ex parte Horn, No. 54,489-01 (Tex.Crim.App. Mar. 5, 2003) (per curiam) (unpublished).

On October 6, 2004, Horn filed the instant petition for federal habeas relief under 28 U.S.C. § 2254 in the district court below, asserting three grounds for relief: that Horn's Sixth Amendment right to confront his accusers was violated when the state prosecution was allowed to examine Birk, who was in Ohio, by two-way closed-circuit television; that Horn's statements made May 31, 1996 (or shortly...

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