Creel v. Johnson

• Decision Date: 23 December 1998
• Docket Number: No. 97-50606,97-50606
• Citation: 162 F.3d 385
• Parties: Lynn Murphy CREEL, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 385

162 F.3d 385

Lynn Murphy CREEL, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 97-50606.

United States Court of Appeals,Fifth Circuit.

Dec. 23, 1998.

Henry Joseph Bemporad, San Antonio, TX, for Petitioner-Appellant.

Charles A. Palmer, Austin, TX, for Respondent-Appellee.

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

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Lynn Murphy Creel appeals the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. A Texas jury convicted Creel of capital murder and sentenced him to life imprisonment. He argues that the district court erred in ruling (1) that a lesser-included-offense instruction was not warranted; (2) that undisclosed perjury of a witness was not material to his case; (3) that the state did not violate his Sixth Amendment right to counsel; (4) that an evidentiary hearing should not be held on his claim of actual innocence; and (5) that his trial counsel did not render ineffective assistance. We affirm.

I

Creel met Wilson Smith ("Smith"), the man whom Creel was later convicted of murdering, through Irene Plangman. Plangman had become acquainted with Mrs. Joan Smith ("Joan") through business dealings, and Plangman lived briefly with the Smiths. During that time, Plangman and Creel were sexually intimate. Creel sold Joan some jewelry, and Plangman acted as an intermediary in the transaction. When Joan was unable to raise the purchase price, Creel became angry over the sale and Plangman's friendship with the Smiths. Creel contacted Julie Woodley about posing as a potential buyer for some property that the Smiths had for sale. According to Woodley, Creel wanted to talk to the owners about money owed to him. Woodley arranged by telephone for Smith to meet her, and then called Creel to tell him of the arrangement. The next morning, Smith left to meet the potential buyer; Joan never saw Smith again.

Creel arrived later that day at Plangman's house and told her he had Smith in his van. He wanted her assistance and advice in deciding what to do with Smith. When Plangman expressed disbelief, Creel declared he "would handle things himself." At Plangman's suggestion that he let Smith go, Creel responded that he, "wasn't going to spend the rest of his life in jail for kidnaping someone and then [having the victim] talking about it later." When Creel called Plangman the next day he told her, "Well it's all over. It's finished." Creel remarked, "what happened to a person as they got older, did they just give up the fight to live, or did they just not care, or did they just become hard and--refused to fight for life."

While borrowing the van a few days later, Plangman found some of Smith's jewelry and belongings in a side pocket. When questioned about the jewelry, Creel stated he intended to sell it. An employee at a local jewelry store, Charles Goodnough, testified that Creel sold him a ring similar to one Smith was wearing when he disappeared.

Joan reported Smith's disappearance and gave Adolpho Cuellar, a Texas Ranger, the names of Plangman and Creel as possible suspects. Cuellar interviewed Plangman, who became his chief source of information. Plangman related the jewelry discovery to Cuellar the day after it occurred.

Others testified against Creel. Randal Graham testified that prior to Creel's arrest, Creel stated, "I've killed a man and I've got his body in the back of the van, and I need you to help me get rid of it." Graham's wife Catherine corroborated this testimony. The Grahams left, declining to aid Creel.

After Medina County charged Creel with aggravated kidnapping and aggravated robbery, Plangman disclosed communications she had with Creel while he was incarcerated. Plangman testified that Creel's letters to her contained coded instructions on how to dispose of Smith's body. Creel received information from his cell mate, Jay Martinez, regarding the appropriate mix of acids to dissolve a body. Creel then directed Plangman to give a friend of his, David Wolf, information on buying acids to dissolve the body. Wolf testified that Plangman attempted twice to give him maps, reportedly from Creel, that led to the body. He looked at the second map briefly before throwing it away. In response to Cuellar's repeated requests for the location of Smith's body, Plangman insisted she did not know.

The Medina County Grand Jury returned indictments for aggravated robbery and aggravated kidnaping of Smith. At a meeting the next day, Cuellar questioned Plangman about the body's location and Plangman said, "Let's just drive." She directed Cuellar to a rural residence in disrepair in Bexar County and suggested the possibility that the body was buried there. She told Cuellar she led him there because she had been there with Creel. Cuellar returned the next day and found Smith's body in a barn. Plangman also returned the next day and, upon hearing that Cuellar found Smith's body, said, "I did it." She testified later that her statement was caused by the emotional stress and shock of finding the body.

The chief medical examiner testified about the results of the autopsy on Smith's body, which was identified by his dentures. Smith's severely decomposed body did not reveal trauma such as bullet holes or fractures. Silver-colored duct tape covered the mouth but not the nose area; however, rodents had eaten the nose, making it impossible to know whether the tape originally covered all breathing passages. Removing the duct tape revealed a knotted red cloth wedged in the mouth. Based on the state of decomposition, the examiner testified that the body had been buried for months.

The medical examiner expressed the opinion that the manner of death was "homicide," based upon the fact that the person was bound, the mouth was stuffed with a gag, and the hands and feet were tied and bound. Although the autopsy revealed that Smith suffered from moderate coronary artery disease and the examiner admitted it was possible that heart failure caused the death, the examiner insisted he would still classify the death as a homicide. According to the examiner, the gag in the mouth was more dangerous than the duct tape, because a gag typically works its way back to block the airway and eventually causes death by choking.

A jury convicted Creel of capital murder in the 144th District Court of Bexar County, Texas. At the sentencing phase of trial, the jury sentenced Creel to life imprisonment. After his conviction was affirmed on direct and state collateral review, Creel filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.

A magistrate held an evidentiary hearing on five of Creel's alleged grounds for relief. Much of the evidence concerned Plangman. Cuellar testified Plangman had begun acting as an informant six days before Creel's arrest, and that, although Cuellar did not instruct Plangman to obtain information, he was hopeful she would supply it to him. Creel testified that when he was in jail Plangman urged him to write her letters. Creel argued Plangman assisted Cuellar in finding Woodley in exchange for Cuellar's help in getting the jewelry returned from Joan. Creel testified he did not know Plangman provided information to Cuellar until Cuellar later named her as an informant at a court hearing.

Creel also presented newly discovered evidence of his alleged innocence. Creel proffered evidence that Smith had signed a document transferring title to a car after Creel had been arrested. Creel argued that, because he was in jail, he could not have killed Smith.

The district court adopted the magistrate's recommendation to deny habeas. Creel appeals this denial, having obtained a Certificate of Probable Cause ("CPC") from the district court. ¹ In considering a federal habeas corpus petition by a prisoner in state custody, federal courts must generally accord a presumption of correctness to any state court factual findings. See Mann v. Scott, 41 F.3d 968, 973 (5th Cir.1994) (citing 28 U.S.C. § 2254(d)). We review the district court's findings of fact for clear error, but decide questions of law de novo. See id.

II

Creel argues that the district court erred in finding he was not entitled to a lesser-included-offense instruction. The state trial court denied Creel's request for an instruction on the lesser included offense of felony murder, which differs from capital murder in that felony murder does not require the prosecution to prove an intent to kill. See Creel v. State, 754 S.W.2d 205, 211 (Tex.Crim.App.1988) (en banc) (explaining capital and felony murder differ only in culpable mental state). Compare TEX.PENAL CODE ANN. § 19.03(a)(2) (West 1994) (capital murder), with TEX.PENAL CODE ANN. § 19.02(b)(3) (felony murder).

Creel argues that due process requires that juries in capital murder cases receive a lesser included offense instruction when it is supported by the evidence. Creel cites Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), which held invalid a provision of the Alabama death penalty statute that precluded a jury instruction on a lesser included noncapital offense. The statute forced the jury either to convict, in which case the death penalty was imposed automatically, or to acquit, in which case the defendant would escape all penalties. See id. at 628-29, 100 S.Ct. at 2385. The Court stated that the failure to give the jury the "third option" of convicting on a lesser included offense decreases the reliability of the verdict, because when "the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Id. at 634, 100 S.Ct. at 2388 (quoting Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)). This risk "cannot be...