Reed v. Stephens

• Decision Date: 10 January 2014
• Docket Number: No. 13–70009.,13–70009.
• Citation: 739 F.3d 753
• Parties: Rodney REED, Petitioner–Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

739 F.3d 753

Rodney REED, Petitioner–Appellant

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 13–70009.

United States Court of Appeals,Fifth Circuit.

Jan. 10, 2014.

Bryce Benjet, Esq., Innocence Project, New York, NY, Mark Stephen Chehi, Esq., Nicole Andrea DiSalvo, Esq., Jason Michael Liberi, Andrew G. Mirisis, Robert Alan Weber, Esq., Skadden, Arps, Slate, Meagher & Flom, L.L.P., Wilmington, DE, Andrew Fairies MacRae, Levatino Pace, L.L.P., Austin, TX, for Petitioner–Appellant.

Stephen M. Hoffman, Assistant Attorney General, James Patrick Sullivan, Esq., Assistant Solicitor General, Office of the Attorney General, Austin, TX, for Respondent–Appellee.

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

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

KING, Circuit Judge:

Petitioner–Appellant Rodney Reed was convicted of capital murder in a jury trial in Texas and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. Reed unsuccessfully sought state habeas relief in six petitions. He also sought federal habeas relief in district court and now seeks a certificate of appealability to challenge the district court's denial of habeas relief. Reed argues that he should be granted a certificate of appealability based on his assertions of actual innocence, ineffective assistance of trial, appellate, and habeas counsel, Brady violations, and violations of his Sixth, Eighth, and Fourteenth Amendment rights. We hold that reasonable jurists could not debate the district court's conclusions and accordingly DENY Reed's request for a certificate of appealability.

I. FACTUAL AND PROCEDURAL BACKGROUND

The lengthy history of Petitioner–Appellant Rodney Reed's conviction for the murder of Stacey Lee Stites has been aptly recounted by numerous courts, most comprehensively by the Texas Court of Criminal Appeals (“CCA”) in Reed's 2008 post-conviction proceeding. Ex parte Reed, 271 S.W.3d 698 (Tex.Crim.App.2008). We rely on the CCA's factual recitation, and limit our discussion to those facts most pertinent to Reed's present application for a certificate of appealability (“COA”).

A. Stacey Stites's Murder

Stites moved, along with her mother, to Bastrop, Texas in 1995 after graduating from high school, and began working at the Bastrop H.E.B. grocery store. By late December 1995, she was engaged to Jimmy Fennell, a recent police academy graduate. The following month, Stites moved to Giddings, Texas to be closer to her fiancé, who had been hired as a patrol officer with the Giddings Police Department.

Stites continued working at H.E.B., but eventually transferred to the store's produce department to earn more money in preparation for her wedding, scheduled for May 11, 1996. Stites was required to report to work daily at 3:30 a.m. to stock produce. Around 6:30 a.m. on April 23, 1996, one of Stites's coworkers called Stites's mother to inform her that Stites had failed to report to work. Stites's mother called Fennell who set out looking for Stites, while Stites's mother called the police to report her daughter missing.

Earlier that morning, at 5:23 a.m., a police officer with the Bastrop Sheriffs Department had observed Fennell's pickup truck (which Stites routinely drove to work) parked in the Bastrop High School parking lot. After confirming that the vehicle was not reported stolen, there was no broken glass, and the driver's side door was locked, the officer returned to his patrol duties. Later, after Stites was reportedmissing, Officer Ed Selmala, an investigator with the Bastrop Police Department, conducted an investigation of the vehicle.

Stites's body was discovered shortly before 3:00 p.m. later that day in a ditch on the side of a road. Investigators observed that Stites was partially unclothed. She was missing a shoe. Although she wore a bra, she was otherwise shirtless. Her H.E.B. nametag was found in the crook of her leg. Additionally, Stites's pants were undone, her pants' zipper was broken, and her underwear was bunched around her hips. A piece of webbed belt belonging to Stites was located at the edge of the road, and matched a piece of belt discovered outside Fennell's truck. Two beer cans lying across the road from Stites's body were also collected.

Karen Blakely, a criminalist and serologist with the Texas Department of Public Safety, took vaginal and breast swabs from Stites's body, which showed the presence of semen. However, as a result of rigor mortis, Blakely could not determine whether Stites had been anally sodomized. Blakely observed various other injuries to Stites's body, including an indentation in her neck, apparently caused by the piece of belt found nearby, scratches on her abdomen and arms, a cigarette burn on one arm, and shallow wounds on her wrists and back that appeared to have been caused by fire-ants.

An autopsy the following day by medical examiner Dr. Roberto Bayardo revealed bruises on Stites's arms, bruises on her head in a pattern consistent with the knuckles of a fist, and bruises on her left shoulder and abdomen consistent with a seatbelt. A wide mark across her neck matched the pattern of her belt. Dr. Bayardo concluded that the belt was the murder weapon, and that Stites was strangled to death. He estimated her time of death as approximately 3:00 a.m.

Dr. Bayardo also took vaginal swabs and identified intact sperm, indicating that the sperm had entered Stites's vagina “quite recently.” Dr. Bayardo also observed injuries to her anus, including dilation and superficial lacerations consistent with penile penetration inflicted at or near the time of Stites's death. Rectal swabs showed sperm heads without visible tails leading Dr. Bayardo to report a “negative” result. Dr. Bayardo also could not rule out the possibility that the presence of sperm in the anus was the result of seepage from the vagina. Further DNA testing on Stites's blood, the vaginal swabs, and liquid in Stites's underwear showed that there was a single semen donor.

Authorities thereafter engaged in an eleven-month-long investigation. Police interviewed hundreds of individuals and identified over twenty-eight male suspects, including Fennell (Stites's fiancé), Officer David Hall (one of Fennell's fellow officers), and David Lawhon (a man who, officials learned, was bragging about killing Stites and who had killed another woman, Mary Ann Arldt, a few weeks after Stites's murder). None of the suspects' DNA matched that recovered from Stites's body.

Eventually, Reed was identified as a suspect. Bastrop police officers frequently saw Reed in the early morning hours near Stites's usual work route and the parking lot where Fennells pickup was found. A comparison between Reed's DNA and that found on Stites's body revealed that Reed could not be excluded as a suspect. Additional DNA analysis proved that Reed's genetic profile matched that of the semen found at the crime scene.

B. Reed's Trial

Reed was charged with capital murder in May 1997. At trial, state prosecutors presented evidence of the murder investigation, as well as testimony by Dr. Bayardo, Blakely, and DNA analyst Meghan Clement. Reed's trial defense consisted of two parts: First, Reed attempted to show that Fennell, Lawhon, or someone else could have committed the offense; and second, Reed tried to explain why his semen was in Stites's body by evidencing a romantic relationship between himself and Stites. In furtherance of this trial strategy, Reed's defense team called multiple witnesses, including a DNA expert, Dr. Elizabeth Ann Johnson. A jury ultimately rejected Reed's defense and found him guilty.

During the trial's punishment phase, state prosecutors introduced evidence that Reed had committed numerous other sexual assaults. The jury, after weighing the evidence, answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and sentenced Reed to death.¹

C. State Post–Conviction Proceedings

On direct appeal, the CCA affirmed Reed's conviction and sentence. While his direct appeal was pending, Reed filed the first of six state habeas applications. Based on the state trial court's recommended findings of fact and conclusions of law, and the CCA's own review of the record, the CCA denied Reed's petition on February 13, 2002.

Before the CCA ruled on Reed's state habeas petition, Reed filed a supplemental habeas claim, which the CCA interpreted as a subsequent application. In his second application, Reed argued that the State failed to turn over a letter containing DNA results from the beer cans found near the crime scene in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The CCA dismissed Reed's subsequent habeas petition as an abuse of the writ for not meeting any of the exceptions listed in Article 11.071 of the Texas Code of Criminal Procedure.²

In March 2005, Reed filed his third state habeas petition, again arguing that the State suppressed evidence in violation of Brady. Reed also added other claims, including a freestanding actual innocence claim, ineffective assistance of trial and appellate counsel claims, and a claim that Texas's capital sentencing statute unconstitutionally prohibits jury instructions on the effect of a juror's “no” vote. The CCA directed the trial court to hold a hearing as to some of the allegedly suppressed evidence, and dismissed the remaining claims as abuses of the writ. After conducting an evidentiary hearing, the trial judge recommended that Reed's third state habeas petition be denied. The CCA ordered supplemental briefing and held oral argument. It then issued a lengthy, detailed opinion holding that the record did not support Reed's Brady claims, and further that Reed had failed to make a prima facie showing of innocence by a preponderance of the evidence, foreclosing review...