Blackman v. Stephens

• Decision Date: 19 January 2016
• Docket Number: No. 3:13-cv-2073-P-BN,3:13-cv-2073-P-BN
• Parties: TELISA DE'ANN BLACKMAN, Petitioner, v. WILLIAM STEPHENS, Director Texas Department of Criminal Justice Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

TELISA DE'ANN BLACKMAN, Petitioner, v. WILLIAM STEPHENS, Director Texas Department of

Criminal Justice Correctional Institutions Division, Respondent.

No. 3:13-cv-2073-P-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

January 19, 2016

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

With the Court's leave, Petitioner Telisa De'ann Blackman, a Texas prisoner, has filed a second amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising three claims: that the prosecution withheld exculpatory and material evidence; that the prosecution used false and misleading testimony at her trial; and that she is legally innocent under Schulp v. Delo, 513 U.S. 298 (1995). See Dkt. No. 54. Chief Judge Jorge A. Solis has referred this habeas action to the undersigned United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and a standing order of reference. See Dkt. No. 47.

Respondent has moved to dismiss Blackman's operative habeas application (or most claims contained in that application) on the basis of limitations. See Dkt. Nos. 45 & 64. Because, after excluding the time during which the limitations period was tolled while Blackman pursued state post-conviction relief related to her current claims, Blackman filed this action within one year from the time that the factual predicates for her current claims could have been discovered through the exercise of due diligence, the undersigned issues these findings of facts, conclusions of law, and recommendation that the Court should deny the motion to dismiss.

Applicable Background

Blackman was charged by indictment with the June 22, 2007 murder of Lisa Davis, her roommate, with whom Blackman was also romantically involved. Blackman pleaded not guilty, proceeded to trial by jury, and was found guilty on September 30, 1998. She was sentenced to life imprisonment. Her sentence was affirmed on direct appeal, and the Texas Court of Criminal Appeals ("TCCA") refused her petition for discretionary review. She also has filed numerous state and federal applications for writs of habeas corpus.

Before discussing the history of this - Blackman's third - federal habeas action, these are the facts as heard at Blackman's trial and summarized by the Dallas Court of Appeals:

[Blackman] and the decedent, Lisa Davis, lived together in a lesbian relationship. One of the decedent's friends testified that the relationship was somewhat stormy and that, shortly before her death, the decedent wanted to end the relationship with [Blackman], although she was apprehensive about doing so.

The couple lived in a second-floor apartment, accessible by an outdoor stairway to a balcony in front of the apartment. [Petitioner] testified that, on Sunday evening, June 22, 1997, she left the apartment complex to go to a nearby convenience store, Quick Way. Upon returning, she realized she did not have her apartment key or her pass card to the apartment complex; she would have to ring the buzzer to be let into the complex. She went to the entryway of the apartment complex and, while she wasstanding on the sidewalk before going upstairs, she saw the decedent's feet lying on the balcony in front of their apartment. The apartment door was open, and the body was lying partially inside the apartment and partially outside. Decedent had been shot. [Petitioner] called the decedent's name, and eventually touched the decedent, but the decedent did not respond. [Petitioner] pulled the decedent's body inside their apartment. In doing so, she moved the decedent's feet to the side, to get them inside the apartment. She then shut the door and dialed 911. As a result of dragging the decedent's body inside the apartment complex, she got blood on her socks and shoes.

Cathy Harding, a Dallas police detective, searched [Petitioner] in the homicide office at police headquarters because the only officers called to the crime scene were male; it was against department policy to have a male officer search a female suspect. Harding found blood on the soles of [Petitioner]'s socks. [Petitioner] told Harding that she had not taken her shoes off that evening.

When Daniel Krieter, a Dallas police investigator, arrived at the murder scene, [Petitioner] asked him if he remembered her from an incident that had occurred about a year earlier. [Petitioner] had been shot by a gun, a .25 caliber Lorcin, that she owned. When the police closed their investigation into that incident, [Petitioner] reclaimed the gun from the department's property room. [Petitioner] testified at trial that the gun was stolen some two months after she had reclaimed it in August 1995. She did not report it as stolen, however, because it was not registered. [Petitioner] consistently denied that she had a gun on the night of the murder.

No gun was found; however, Krieter's search of the apartment revealed some spent shell casings on the floor and some live shell casings in a bureau drawer. The casings were .25 caliber and would fit a Lorcin. [Petitioner] and the decedent had moved into the apartment only some thirty days before the decedent's death. [Petitioner] explained that she moved in such haste she did not have time to throw out the live shell casings so she simply moved them.

Robert L. Ermatinger, a Dallas police homicide investigator, questioned [Petitioner] at the scene. [Petitioner] told him she had gone to "the store" when the shooting occurred, although she could not say which store. When pressed, [Petitioner] said she realized while enroute to the store she had forgotten her gate key and returned to the complex rather than going on to the store. When Ermatinger asked [Petitioner] at the scene if"they were a couple," that is, whether [Petitioner] and the decedent had a lesbian relationship, [Petitioner] said "they were not."

Finally, Cherissa Adams, a neighbor who lived on the first floor, testified that, on the evening of June 22, 1997, she heard a loud noise that sounded like gunfire. She looked out her window and saw a lifeless body. A young, thin girl was trying to move the body. The body's upper portion was inside an apartment. After Adams called 911, she returned to the window and continued to look out. The person who had moved the body locked the door and went downstairs. When the person looked in Adams's direction, Adams closed the blinds and moved away from the window. Adams had never seen the person before that evening and never saw her again. Adams was not able to identify appellant in court; at 11:35 p.m. on the night of the shooting, however, Adams did identify [Petitioner] in a photographic lineup.

Blackman v. State, No. 05-98-01750-CR, 2000 WL 567985, at *1-*2 (Tex. App. - Dallas May 8, 2000).

The current federal habeas action results from Blackman's third state habeas application, filed on December 17, 2010, see Ex parte Blackman, No. 52,123-03, after the Dallas County District Attorney's Office (the "D.A.") granted her current habeas counsel, J. Craig Jett, access to its case file on August 27, 2009. See Dkt. No. 13-24 at 112, ¶ 25 (state-habeas trial court findings of fact and conclusions of law). Once Mr. Jett had access to the D.A.'s case file, he discovered notes from the prosecutor - which, it was later established, were never turned over to defense counsel - indicating that Ms. Adams had told the prosecutor, in an interview one month prior to trial, "that [she] picked someone else out of the line up first and then changed her mind and selected [Blackman]." Id. at 110-11, ¶¶ 15, 16.

In addition to the notes, the D.A. later provided Blackman a cassette recording of the 911 call Ms. Adams made the day of the murder.

Ms. Adams told the 911 operator that she thought she heard a gunshot in her apartment complex, which causes her to look out of the window of her apartment, located on the ground floor of the complex, towards another apartment in the complex. Ms. Adams told the 911 operator that she saw a man lying down in the doorway and a black man that pushed him inside the apartment and closed the door. She told the operator that she could look out her window and see straight up into the apartment where the events occurred.

Id. at 108, ¶ 1. As to the discovery of the 911 recording, the state-habeas trial court found the following:

After [Blackman]'s [third] writ application was filed, Assistant District Attorney Christine Womble contacted Detective Ermatinger, who was the lead detective on the case against [Blackman]. Ms. Womble asked Mr. Ermatinger to retrieve the Dallas Police Department file so Ms. Womble could compare it to the District Attorney's file to see if there was anything that the D.A.'s office did not have. Ms. Womble searched through the Dallas Police Department file and found a cassette tape that had a recording of Ms. Adams' 911 call. The cassette recording was copied and promptly provided to [Blackman]'s counsel, J. Craig Jett, in 2011, prior to the hearing on [Blackman]'s [third] Application for Writ of Habeas Corpus. The 911 recording was admitted into evidence at the writ hearing ... without objection by the State.

Id. at 112, ¶ 24; see also id. at 111, ¶ 18 ("The recording of Ms. Adams talking to the 911 operator was preserved by the Dallas Police Department. Ms. Kemp[, the prosecutor,] was aware of the existence of the 911 recording and was aware that Ms. Adams said on the recording that she saw a black male moving the body. Ms. Kemp did not inform defense counsel, James Belt, about the existence of the 911 call or its content. Mr. Belt was unaware of the existence of the 911 recording and its content at the time of the trial of [Blackman]'s case and did not learn of the 911 recording and its content until they were provided to him by [Mr. Jett] in 2011." (internal record citations omitted)).

The state-habeas trial court, after the benefit of an evidentiary hearing, found that the prosecutor's notes concerning her meeting with...