Banks v. Dretke, 01-40058.
| Decision Date | 25 August 2004 |
| Docket Number | No. 01-40058.,01-40058. |
| Parties | Delma BANKS, Jr., Petitioner-Appellee-Cross-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George H. Kendall (argued), L. Song Richardson, NAACP Legal Defense & Educational Fund, New York City, Clifton L. Holmes, Holmes & Moore, Longview, TX, for Banks.
Katherine D. Hayes (argued), Edward Larry Marshall, James Richard Broughton, Austin, TX, for Dretke.
Appeals from the United States District Court for the Eastern District of Texas.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, BARKSDALE and DENNIS, Circuit Judges.
In 1980, Delma Banks, Jr. was convicted in Texas state court of capital murder and sentenced to death. After pursuing his state remedies, Banks filed for federal habeas relief in 1996 (before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA)). Among the numerous issues raised, he claimed: for two of the State's witnesses, the prosecution withheld material exculpatory impeachment evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied relief for Banks' conviction, but granted it for the sentence. Because it had not been properly pleaded, the district court refused to rule on Banks' Brady claim based on the prosecution's suppression of a pre-trial interview transcript for witness Charles Cook; that transcript had not been produced until the federal habeas proceeding and had been admitted in evidence at the subsequent evidentiary hearing.
On appeal, in a 78-page opinion addressing numerous issues, we vacated the habeas relief for the sentence and denied a certificate of appealability (COA) for the guilt phase concerning, inter alia: whether Banks' Cook-transcript Brady claim was properly pleaded; or whether, in the alternative, it had been tried by consent of the parties pursuant to Federal Rule of Civil Procedure 15(b) (). Banks v. Cockrell, No. 01-40058, 48 Fed.Appx. 104 (5th Cir.2002) (unpublished).
The Supreme Court held: Banks was entitled to habeas relief for the sentence; and, for the Cook-transcript Brady claim, a COA "should have issued" "[a]t least as to the application of Rule 15(b)" to the district court evidentiary hearing. Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 1280, 157 L.Ed.2d 1166 (2004).
Because the Supreme Court granted that COA, we address: whether Rule 15(b) applies to issues raised in a pre-AEDPA district court evidentiary hearing; and, if it does, how the Rule applies here. Because the Rule applies and the district court has not addressed its application to the Cook-transcript Brady claim, we REMAND to district court.
The Supreme Court's remand concerns only the discrete procedural issue of whether Rule 15(b) applies to claims tried by consent in pre-AEDPA federal habeas proceedings. . The facts and procedural history for Banks' underlying state conviction and post-conviction proceedings have been exhaustively addressed both by this court and the Supreme Court. See Banks, 124 S.Ct. 1256; Banks, No. 01-40058, 48 Fed.Appx. 104. Accordingly, we recite only the facts and fairly complex procedural history relevant to the Supreme Court's COA-grant at hand.
In 1980, Banks was convicted for the murder of Richard Whitehead in Texas state court and sentenced to death. Officers investigating Richard Whitehead's death had turned their attention to Banks when they learned that Richard Whitehead had been seen with him on 11 April 1980 near Nash, Texas; Richard Whitehead's body was found on 14 April. On 23 April, after receiving a tip from a confidential informant that Banks was traveling to Dallas, Texas, to meet an individual and obtain a weapon, officers followed Banks to Dallas, where he visited a residence. As Banks was leaving Dallas, officers stopped his vehicle and found a handgun; officers then returned to the residence Banks had visited and interviewed Charles Cook there. While at the residence, officers recovered a second handgun; Cook told the officers that Banks had left that second handgun with him days earlier. Tests identified the second handgun as the Whitehead murder weapon.
Prior to trial, Banks' attorney sought information concerning the identity of the informant who had told officers that Banks would be traveling to Dallas, but the prosecution claimed the information was privileged. The prosecution eventually advised Banks' counsel that "[the State] will, without necessity of motions provide you with all discovery to which you are entitled".
During the guilt phase of Banks' trial, witnesses testified to seeing Banks and Richard Whitehead together in a green Mustang on 11 April (shortly before Richard Whitehead's death). Cook testified: Banks arrived in Dallas in a green Mustang at about 8:15 a.m. on 12 April and stayed until 14 April; and, during this period, Banks admitted to having "kill[ed] the white boy for the hell of it and take[n] his car and come to Dallas". Banks, 124 S.Ct. at 1264. Cook testified further that Banks then abandoned the Mustang and left Dallas by bus. On cross-examination, Cook stated three times that he had not talked with anyone about his testimony. (As discussed infra, it was discovered in the course of this habeas proceeding, however, that Cook had at least one "pretrial practice session", at which officers and prosecutors coached him about his trial testimony.) Cook did not testify at the penalty phase.
At the guilt phase, another of the State's key witnesses, Robert Farr, corroborated Cook's account. Farr also testified against Banks at the penalty phase. (It was revealed during this federal habeas proceeding that Farr had been the confidential informant who told officers about Banks' intention to go to Dallas and that Farr had been paid for that information.)
After pursuing available state remedies, Banks filed the instant federal habeas application in March 1996, asserting, inter alia, a Brady claim based on the prosecution's failure to produce exculpatory evidence, including "information that pointed to another suspect in the murder, information that linked prosecution star witness Charles Cook to Robert Farr ... and information that would have revealed Robert Farr as a police informant and Mr. Banks' arrest as a `set-up'". (Emphasis added.) Banks also claimed: "prosecutors' actions in concealing from the jury Cook's enormous incentive to testify in a manner favorable to the State require that this Court reverse Mr. Banks' conviction and sentence"; and "[t]he prosecution's failure to disclose that Cook stood to profit so enormously by his testimony, narrowly evading a possible life term in prison, requires the reversal of Mr. Banks' conviction and sentence". (Emphasis added.) It appears that Cook's alleged "incentive to testify in a manner favorable to the prosecution" is the "deal"-with-the-prosecution referred to by the Supreme Court, as quoted infra. E.g., Banks, 124 S.Ct. at 1269.
The magistrate judge ordered an evidentiary hearing to address, inter alia, Banks' claims that the State had withheld "crucial exculpatory and impeaching evidence" concerning Cook and Farr. Banks v. Johnson, No. 5:96-CV-353, at 1 (E.D.Texas 5 March 1999). Prior to that hearing, the magistrate judge ordered the prosecution to produce its files from Banks' trial. Discovered in those files was a 74-page transcript of a pre-trial interview of Cook, conducted by law enforcement officials and prosecutors in September 1980, shortly before trial.
The Cook transcript revealed
the State's representatives had closely rehearsed Cook's testimony. In particular, the officials told Cook how to reconcile his testimony with affidavits to which he had earlier subscribed recounting Banks's visit to Dallas. ("Your [April 1980] statement is obviously screwed up."); ("[T]he way this statement should read is that ... "); ("[L]et me tell you how this is going to work."); ("That's not in your [earlier] statement"). Although the transcript did not bear on Banks's claim that the prosecution had a deal with Cook, it provided compelling evidence that Cook's testimony had been tutored by Banks's prosecutors.
Banks, 124 S.Ct. at 1269 (citations omitted; emphasis added). Again, the Supreme Court's discussion of the alleged "deal" between Cook and the prosecution appears to be in reference to Banks' claim in his federal habeas petition that Cook had an incentive to testify favorably for the prosecution.
The Cook-interview transcript was listed in Banks' identification of exhibits to be introduced at the district court evidentiary hearing. At that hearing, Banks' counsel introduced the transcript in evidence without objection and questioned the assistant district attorney at the time of trial about whether, at trial, the prosecution should have allowed Cook to testify that, pre-trial, he had not talked to anyone about his testimony (the transcript proved otherwise). Banks' post-evidentiary-hearing brief on an unrelated issue noted that discovery "dislodged" the Cook-interview transcript and claimed the transcript demonstrated that key trial testimony was coached and inaccurate.
Banks' proposed findings of fact and conclusions of law for the magistrate judge (for the report and recommendation to the district judge) referenced the Cook transcript several times. Inter alia, Banks: asserted that, by suppressing the transcript, prosecutors breached their promise of full disclosure; described the withholding of the transcript; proposed the...
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