Yohey v. Collins

• Decision Date: 08 March 1993
• Docket Number: No. 92-5596,92-5596
• Parties: Leslie Wayne YOHEY, Petitioner-Appellant, v. James A. COLLINS, Director Department of Criminal Justice Institutional Division, et al., Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 222

985 F.2d 222

Leslie Wayne YOHEY, Petitioner-Appellant, v. James A. COLLINS, Director Department of Criminal Justice

Institutional Division, et al., Respondents-Appellees.

No. 92-5596

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 8, 1993.

Rehearing Denied April 7, 1993.

Leslie Wayne Yohey, pro se.

Jeffrey K. Sands, Bill McMurrey, Asst. Attys. Gen., Austin, TX, for respondents-appellees.

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

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges:

DeMOSS, Circuit Judge:

Leslie Wayne Yohey is currently in the custody of the Texas Department of Criminal Justice. He was convicted by a jury of murder and sentenced to life imprisonment. The Texas Court of Appeals affirmed his conviction and sentence on direct appeal. Yohey v. State, 801 S.W.2d 232, 234, 247 (Tex.App.--San Antonio 1990, pet. ref'd). Yohey then filed a petition for discretionary review with the Texas Court of Criminal Appeals, which was refused.

Subsequently, Yohey filed a federal petition for habeas corpus raising four issues, but attaching copies of two state petitions for writ of mandamus and an appellate brief filed after the state trial court's pretrial denial of habeas relief. The state moved to dismiss for failure to exhaust state remedies on some of the issues, and the magistrate judge ordered Yohey to file a "brief written advisory" identifying all his grounds for relief. Yohey responded with a long document in which the district court identified 45 issues, corresponding to the 44 issues raised by Yohey on direct appeal. The magistrate judge determined that Yohey had exhausted all of his state remedies, and recommended denial of habeas relief on the merits. The magistrate judge recommended dismissal of numerous claims on the basis that Yohey had alleged errors only of state law, but identified and discussed some federal constitutional claims as well. Over Yohey's extensive objections, the district court adopted the magistrate judge's report and recommendation and denied habeas relief. The district court granted certificate of probable cause (CPC). This Court has denied appointment of counsel.

A summary of the evidence at trial is helpful in understanding Yohey's numerous allegations. The summary is drawn from the state appeals court's decision.

Yohey was convicted for murdering his estranged wife and her boyfriend. Yohey and his wife, Terri Denise Yohey, were separated and living apart. In the early morning hours of July 14, 1985, Yohey entered her apartment with a key. She was not home. Yohey had with him his loaded nine-millimeter pistol. He lay down on the bed and waited for his wife. When Terri Yohey and Craig Gooch entered the apartment and came into the bedroom they were shot and killed. Gooch was shot fifteen times. Seven or eight nine-millimeter bullets were recovered from his body. Terri Yohey was shot seven times. Three nine-millimeter bullets and two .22 caliber bullets were recovered from her body.

At his dying wife's insistence, and after misdialing several times, Yohey dialed 911 for assistance. When the police arrived, Yohey told them he had shot the two individuals. While in custody he gave a written extra-judicial confession to police, which he testified at trial that he believed to be accurate. In his testimony Yohey stated he carried his nine-millimeter weapon into the apartment, as he was afraid it would be stolen if he left it in his truck outside. In the confusion that followed the entry of Gooch and Yohey's wife into the bedroom, Yohey testified that he shot both. He related that his wife had retrieved the .22 caliber pistol from a drawer and shot at him apparently after she had been shot. He also admitted taking the .22 caliber pistol from her and then shooting her with it after shooting at her with his nine-millimeter gun. He related that at one point he gathered the shells and the two guns and left in his truck; that he returned shortly thereafter, scattered the shells in the bedroom, and placed the .22 caliber pistol in Gooch's hand.

Yohey's host of alleged errors are better understood in light of his interpretation of the state trial court's determination to have him convicted. Yohey was originally represented by appointed counsel Robert Willmann, who moved for extensive expert witness fees. The trial court denied that motion, citing in part Tex.Code Crim.P. art. 26.05, which limited such fees to $500. Willmann filed a mandamus petition with the Texas Court of Criminal Appeals on this matter, and another on other discovery issues. While those petitions were pending, the state moved to decertify Yohey's pauper status, the trial judge granted the motion, and Willmann was relieved of his appointment. At some later point, the trial judge ordered Yohey incarcerated allegedly to make him a pauper again, found him a pauper, and appointed a different attorney, Gary Hutton, who also represented Yohey on direct appeal. Prior to Yohey's trial, article 26.05 was amended and, eleven days before trial, the trial court did grant appointment of a psychiatric expert. Yohey, 801 S.W.2d at 238, 241-42.

Yohey has filed this appeal pro se. He requests, in part, the adoption of previously filed legal and factual arguments in his objections to the magistrate judge's report and in various state court pleadings. He specifically states that he will not repeat such claims. Yohey has abandoned these arguments by failing to argue them in the body of his brief. "Fed.R.App.P. 28(a)(4) requires that the appellant's argument contain the reasons he deserves the requested relief 'with citation to the authorities, statutes and parts of the record relied on.' " Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112 L.Ed.2d 411 (1990) (citations omitted). "Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved." Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988) (citations omitted). Also, Yohey's incorporation of arguments from other pleadings would lengthen a brief already at the 50-page limit. See Fed.R.App.P. 28(g). Therefore, only the issues presented and argued in the brief are addressed.

Additionally, Yohey's pro se brief is convoluted at best. The issues discussed below on the merits are ones determined to have been preserved and argued on appeal. After a diligent comparison of Yohey's brief with the district court record, several issues have been deemed as 1) new claims, that either were not presented to the district court or were presented in a totally different context in his petition, or 2) abandoned claims because they are raised for the first time in Yohey's reply brief.

NEW CLAIMS RAISED IN INITIAL APPELLATE BRIEF

The issues below are claims raised on appeal, but Yohey did not argue them in district court. As a general rule, this Court does not review issues raised for the first time on appeal. United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990). The issues are as follows:

1) Amended Tex.Code Crim.P. art. 26.05, regarding funding of expert witnesses, should have been applied retroactively. In district court, Yohey argued Article 26.05 should have been held unconstitutional.

2) The state trial court denied Yohey access to exculpatory evidence by denying his pretrial motion to gain access to the crime scene. The only issues in his petition regarding complaints of denial of access to exculpatory evidence do not identify this motion.

3) Ineffective assistance of counsel because of no access to exculpatory evidence. Although he complains of ineffective assistance of counsel due to conflict of interest, as addressed below, this particular reason is not raised. See Barnard v. Collins, 958 F.2d 634, 643 n. 12 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1992).

4) The state suppressed evidence in the form of the EMS reports and tapes of Yohey's calls to 911 and further suppressed evidence in control of Mrs. Yohey's family members. Although the report and recommendation mentions a general Brady claim, the claim was raised in the context of denial of discovery motions. The magistrate judge noted that most of Yohey's discovery requests had been granted and that Yohey did not specifically identify any evidence withheld by the prosecution as a result of the denial of discovery. In his district court petition, Yohey never identified the alleged suppression of these specific pieces of evidence as separate issues about which he was complaining. He did mention the EMS reports and 911 tapes in the context of an issue complaining of the admission of an officer's opinion as to the time of death of the victims. However, the report and recommendation did not perceive that issue to be a veiled Brady claim. Additionally, Yohey never requested either the EMS reports and 911 tapes or evidence in the possession of Terri Yohey's family in his state pretrial discovery requests.

CLAIMS RAISED IN APPELLATE REPLY BRIEF

Yohey also raises claims in his reply brief that are either completely new, essentially state no claim for relief, or were not raised in his initial appellate brief. This Court will not consider a claim raised for the first time in a reply brief. United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989). The claims are as follows:

1) The recitation of facts the state used in its appellate brief was misleading. The state's current characterization of the evidence presents no claim for relief.

2) His confession was illegally coerced. This issue was raised in his petition, but was not presented or argued in his initial appeal brief.

3) The White family by itself suppressed evidence by withholding it from the defense. This issue is new.

4) The state appellate court erroneously upheld his...