East v. Scott

• Decision Date: 09 June 1995
• Docket Number: No. 94-10730,94-10730
• Citation: 55 F.3d 996
• Parties: Wayne EAST, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 996

55 F.3d 996

Wayne EAST, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice Institutional Division, Respondent-Appellee.

No. 94-10730.

United States Court of Appeals Fifth Circuit.

June 9, 1995.

Sandra L. Babcock, 10th Dist. Public Defenders Office, Anoka, MN, Robert C. Owen, Tex. Resource Center, Austin, TX, for appellant.

William C. Zapalac, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellee.

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

Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Wayne East, a Texas Death Row inmate, appeals the district court's dismissal of his Sec. 2254 habeas corpus petition. East's primary contention on appeal is that the district court erred by dismissing his habeas petition without providing him with an opportunity for discovery or an evidentiary hearing. After careful consideration, we agree that the district court erred by dismissing East's due process and Brady claims without affording him the opportunity for discovery. We further conclude, however, that the district court did not err by dismissing East's remaining claims without the opportunity for discovery or an evidentiary hearing. We therefore vacate the district court's judgment and remand for further proceedings consistent with this opinion.

I.

In August 1982, a Taylor County, Texas jury convicted Wayne East of capital murder and sentenced him to die for the murder of Mary Eula Sears. Sears was killed during a burglary of her home. The linchpin of the state's evidence against East was the testimony of his accomplice, Dee Dee Martin. Martin testified that after she and East broke into Sears' house, East bound Sears and repeatedly stabbed her when she refused to remain quiet. The Texas Court of Criminal Appeals subsequently affirmed East's conviction and sentence on direct appeal and the U.S. Supreme Court denied certiorari. East v. State, 702 S.W.2d 606 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1000, 106 S.Ct. 418, 88 L.Ed.2d 368 (1985).

East filed his first state habeas petition in May 1986 and the state trial court stayed East's June 1986 execution date. The trial court granted East's request for an evidentiary hearing, but denied his request for discovery. After the evidentiary hearing, the trial court entered findings of fact and recommended that East's application be denied. The Texas Court of Criminal Appeals subsequently denied East's habeas application without a written order.

In May 1987, East filed his first federal habeas petition. Following an evidentiary hearing before a magistrate judge, the district court adopted the magistrate's findings and denied East's petition. East did not appeal the district court's order. In February 1990, the district court appointed the Texas Resource Center to represent East after East's former counsel withdrew from the case. East's new counsel subsequently filed a Rule 60(b) motion for relief from the district court's judgment denying habeas relief. The court granted East's motion in part by allowing him to file an amended petition. The district court subsequently dismissed East's amended petition without prejudice because he failed to exhaust several of his claims in state court.

After exhausting his remaining claims in state court, East filed the present federal habeas petition in June 1992. East's petition alleged 23 grounds for reversing his conviction and death sentence. East also filed a motion requesting an evidentiary hearing and the opportunity to conduct discovery. In response to the state's motion for summary judgment, the district court denied East's request for discovery and an evidentiary hearing, and dismissed East's petition. We granted East a certificate of probable cause to appeal the district court's dismissal.

II.

East argues that the district court erred in denying his habeas petition in the following respects: (1) in dismissing his petition without allowing him the opportunity for discovery or an evidentiary hearing to resolve his claim that the participation of a private attorney in his prosecution violated the Due Process Clause, (2) in failing to conduct an evidentiary hearing to resolve his Brady claims, (3) in failing to conduct an evidentiary hearing to resolve his claim that the prosecution knowingly used false testimony at trial in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), (4) in rejecting his argument that the state trial court violated Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980) by not instructing the jury on the lesser included offenses of murder and felony murder, (5) in rejecting his argument that his trial counsel provided ineffective assistance in violation of the Sixth Amendment, and (6) in rejecting his argument that the form of Texas' death penalty special interrogatories prevented the jury from giving effect to mitigating evidence in violation of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We shall consider each of these arguments in turn.

A. THE PRIVATE PROSECUTOR

East first contends that the district court should have permitted discovery and held an evidentiary hearing to resolve his claim that the involvement of a private prosecutor in his prosecution denied him due process. Prior to East's trial, the victim's family retained Russell Ormesher, a former Dallas County prosecutor, to assist the Taylor County district The opportunity for an evidentiary hearing in a federal habeas corpus proceeding is mandatory only where there is a factual dispute which, if resolved in the petitioner's favor, would entitle the petitioner to relief and the petitioner has not received a full and fair evidentiary hearing in state court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). East raised his due process claim for the first time in an amendment to his federal habeas petition. Consequently, the state trial court did not consider the claim during the evidentiary hearing on East's original state habeas petition. The district court considered East's claim only after the state waived the exhaustion requirement of Sec. 2254. East's entitlement to an evidentiary hearing on this claim thus turns on whether his claim raises a question of fact which, if decided in his favor, would entitle him to relief. To resolve this issue, we must first examine the case law governing the participation of privately-retained attorneys in criminal prosecutions.

attorney in East's capital murder prosecution. East maintains that Mr. Ormesher essentially controlled all the critical trial strategy and prosecutorial decisions, and that Ormesher's role in the prosecution thus violated the Due Process Clause.

Powers v. Hauck, ¹ was the first decision by this court to expressly address whether the participation of a private prosecutor in a criminal prosecution violates the Due Process Clause. In Powers, a habeas petitioner convicted of capital murder alleged that the victim's family hired a private attorney to assist in his prosecution. The court adopted the district court's holding that "the mere participation of a special prosecutor alone is not sufficient grounds to show denial of due process, without some additional showing of a violation of the rules relating to prosecuting attorneys." Id. The court concluded that the private prosecutor's involvement did not violate due process because the elected district attorney retained control and management of the prosecution and the private prosecutor never acted without the district attorney's consent or supervision. Id.

In Woods v. Linahan, 648 F.2d 973, 976 (5th Cir.1981), the court similarly held that the participation of a privately-retained attorney in a murder prosecution did not offend due process even though the attorney exercised independent control over the prosecution during its pre-trial stages. The private prosecutor in Woods conducted the pre-trial investigation, interviewed witnesses, filed and argued pre-trial motions, and made pre-trial strategy decisions without the supervision or control of the district attorney. According to the court, the private prosecutor's pretrial activity "border[ed] on a constitutional violation" because "these activities were not carried out under the direction, control, or knowledge of the district attorney." Id. at 976-977.

However, the court concluded that there was no due process violation in Woods because the district attorney assumed control of the prosecution once the trial started. After the trial started, the district attorney assumed control over trial strategy decisions, gave the state's opening and closing arguments, and examined all the witnesses. While the private prosecutor assisted the district attorney during the trial, he never acted without the district attorney's consent or supervision. Thus, as in Powers, the Woods court held that the private prosecutor's actions did not offend due process because he did not control important phases of the prosecution. ²

In Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988), cert. denied, 489 U.S. 1011, 109 It is control over these critical prosecutorial decisions which determine the fairness of particular prosecutions that is the important consideration; operational conduct of the trial is actually of subordinate concern, except as it may actually impact upon the more fundamental prosecutorial decisions.

S.Ct. 1119, 103 L.Ed.2d 182 (1989), the Fourth Circuit followed similar reasoning in concluding that a private prosecutor must effectively control a prosecution to violate the accused's due process rights. The court reasoned that, for purposes of due process, it is important to determine whether a private prosecutor controlled crucial prosecutorial decisions, such as "whether to prosecute, what targets of prosecution to select, what investigative...