Dorsey v. Stephens

• Decision Date: 12 July 2013
• Docket Number: No. 11–20682.,11–20682.
• Citation: 720 F.3d 309
• Parties: Charles Ray DORSEY, Petitioner–Appellant, v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

720 F.3d 309

Charles Ray DORSEY, Petitioner–Appellant,

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

No. 11–20682.

United States Court of Appeals,Fifth Circuit.

July 12, 2013.

Charles Ray Dorsey, Beeville, TX, pro se.

Melissa L. Hargis, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent–Appellee.

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

Before OWEN and HAYNES, Circuit Judges, and LEMELLE,^* District Judge.

PRISCILLA R. OWEN, Circuit Judge:

Charles Ray Dorsey, Texas prisoner # 859151, appeals the judgment of the districtcourt dismissing his application for a writ of habeas corpus under 28 U.S.C. § 2254, which challenges his Texas conviction for murder. We affirm.

I

Dorsey was tried for intentionally and knowingly causing the death of his wife, Pamela Dorsey, by shooting her, in violation of Texas Penal Code section 19.02(b)(1). The jury found Dorsey guilty and sentenced him to a 40–year prison term.¹

The evidence of Dorsey's guilt was circumstantial but substantial. Pamela Dorsey was shot shortly after 2:00 a.m. either by her husband or their son C.D., who was two-and-a-half years old at the time of his mother's death. Dorsey maintained that he left the bedroom where his wife was on the bed and that C.D. had withdrawn the murder weapon, a pistol, from his mother's purse and accidentally discharged the weapon, killing her. As part of its evidence to rebut Dorsey's version of the facts, the State offered a videotape created by Bonnie Tidwell, who was then a detective with the Montgomery County Sheriff's Department and who was trained to work with children involved in investigations. Following Pamela Dorsey's death, Tidwell brought C.D. to law enforcement offices to attempt to determine whether C.D. was physically able to remove the murder weapon from its holster and to pull its trigger. Neither Dorsey nor his counsel was present or was notified. Tidwell placed C.D. in an interview room with the weapon. The interactions were recorded by a video camera. While in the interview room, C.D. attempted but failed to unhook the strap that held the gun in its holster. After Tidwell aided C.D. in unhooking the strap, C.D. withdrew the revolver from its holster. At that time, the firearm was in “double action” mode, which means that the hammer was not cocked before the trigger is pulled and that one's pull of the trigger must first cock the hammer before the weapon can be fired. Double action mode increases the amount of force required to pull the trigger, which the evidence reflected was eleven pounds of pressure. When the weapon was in double action mode, C.D. failed to pull the trigger. Once Tidwell manually cocked the hammer on the revolver—putting it in “single action” mode—C.D. was able to pull the trigger using two fingers. The evidence reflected that the amount of pressure required to fire the weapon in single-action mode was four pounds. There was no evidence at trial as to whether the revolver was in single or double action mode when the fatal shot was fired.

At trial, counsel filed a motion to suppress the videotape on a number of grounds. The trial court granted the motion in part, ruling that the audio portion of the video could not be played before the jury. Tidwell was called as a witness and presented a limited narrative of the video. Dorsey focuses only on the video in the two claims for relief before us. Tidwell's testimony is not at issue.

Following his conviction, Dorsey appealed to the Ninth Court of Appeals of Texas, asserting sixteen issues.² Although six issuesrelated to the admission of the videotape, Dorsey did not argue that his rights under the Confrontation Clause of the Sixth Amendment had been violated. ³ The Ninth Court of Appeals of Texas sustained one of Dorsey's issues and affirmed Dorsey's conviction as modified.⁴

Dorsey did not timely file a petition for discretionary review (PDR) in the Texas Court of Criminal Appeals. Four years after the intermediate appellate court issued its decision, however, Dorsey filed a state petition for habeas corpus asserting that his appellate counsel rendered ineffective assistance by failing to advise him that his conviction had been affirmed on appeal. The Texas Court of Criminal Appeals permitted Dorsey to file an out-of-time PDR to challenge the Texas intermediate court of appeals' judgment.⁵ In his PDR, Dorsey asserted for the first time on direct appeal that the admission of the videotape of C.D. violated his rights under the Confrontation Clause based on the Supreme Court's decision in Crawford v. Washington,⁶ which had issued following his intermediate appeal. The Texas Court of Criminal Appeals refused Dorsey's PDR without opinion. Dorsey thereafter filed a petition for writ of certiorari in the Supreme Court,⁷ which was denied.⁸

Dorsey later filed a second state habeas corpus petition, which included his claim that the admission of the videotape of C.D. violated his rights under the Confrontation Clause and that his appellate counsel rendered ineffective assistance by failing to raise this issue before Texas's Ninth Court of Appeals. The state trial court, which under Texas law makes preliminary findings of fact and conclusions of law on petitions for habeas corpus, ⁹ concluded that Dorsey's Confrontation Clause claim could not be addressed in an application for habeas corpus relief, reasoning that this claim had been raised and rejected on direct appeal. The state habeas trial court also concluded that Dorsey “fail[ed] to prove his ineffective assistance of ... appellate counsel [claim] by a preponderance of the evidence.” The state trial court recommended to the Texas Court of Criminal Appeals that it deny relief, and that recommendation was accepted with a brief entry by the Texas Court of Criminal Appeals explaining that the petition was “[d]enied without written order on findings of trial court without hearing.”

Dorsey then filed the instant application for habeas corpus relief under § 2254, reurging, among other claims, his Confrontation Clause and ineffective assistance of appellate counsel claims related to the admission of the videotape. The district court granted the State's motion for summary judgment and denied Dorsey's application, concluding that, even assuming admission of the videotape violated the Confrontation Clause, Dorsey failed to show his trial was fundamentally unfair or that there was a reasonable probability that the verdict would have been different had the video been excluded. The district court also held that the state appellate counsel's decision not to raise the Confrontation Clause issue before the Ninth Court of Appeals of Texas fell within the wide range of reasonable professional assistance and that even assuming there were unprofessional errors, the result of the proceeding would not have been different but for such errors. This appeal followed, and we granted a certificate of appealability on Dorsey's Confrontation Clause and ineffective assistance of appellate counsel claims related to the admission of the videotape.

II

In this habeas corpus appeal, we review the district court's findings of fact for clear error and its conclusions of law de novo, ¹⁰ and we may affirm on any ground supported by the record.¹¹ Our authority to grant relief to a person held in custody pursuant to a state judgment is narrowly circumscribed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). To the extent a prisoner's claim was adjudicated on the merits in a state court proceeding, § 2254(d) provides that a federal court may not grant habeas corpus relief unless the state court's adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. ¹²

Section 2254(d)(1)'s “ ‘contrary to’ and ‘unreasonable application’ clauses have independent meaning.” ¹³ The “contrary to” clause applies when the state court fails to apply a legal rule announced by the Supreme Court or reaches a result opposite to a previous decision of the Court on materially indistinguishable facts.¹⁴ The “unreasonable application” clause applies when the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” ¹⁵ “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” ¹⁶ Habeas corpus serves as “ ‘a guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.” ¹⁷

III

Dorsey argues that introduction of the videotape of C.D. violated his Sixth Amendment right to confront witnesses against him under the rule announced in Crawford. “It is settled that a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.’ ” ¹⁸ Applying that deferential standard, we conclude that fairminded jurists could disagree as to whether the Texas Court of Criminal Appeals' resolution of Dorsey's Confrontation Clause claim was in conflict with clearly established Supreme Court precedent.

A

As an initial matter, we clarify the applicability of Crawford to Dorsey's claim. Dorsey and the State both assume that this case is governed by Crawford, which the Supreme Court decided in 2004. Dorsey's trial took place in 2001, and his direct appeal to Texas's Ninth...