Dowthitt v. Johnson

• Citation: 180 F.Supp.2d 832
• Decision Date: 27 January 2000
• Docket Number: No. H-98-3282.,H-98-3282.
• Parties: Dennis Thurl DOWTHITT, Petitioner, v. Gary L. JOHNSON, Director, Respondent.
• Court: U.S. District Court — Southern District of Texas

Page 832

180 F.Supp.2d 832

Dennis Thurl DOWTHITT, Petitioner, v. Gary L. JOHNSON, Director, Respondent.

No. H-98-3282.

United States District Court, S.D. Texas, Houston Division.

January 27, 2000.

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Anthony Seymour Haughton, Tola & Haughton, Houston, TX, Helen J. Beardsley, Attorney at Law, Austin, TX, Thomas J. Saunders, Attorney at Law, Baltimore, MD, James D. Jones, Attorney at Law, Conroe, TX, for petitioner.

Douglas Alan Danzeiser, Office of Attorney General, Austin, TX, for respondent.

MEMORANDUM AND ORDER

ATLAS, District Judge.

Petitioner Dennis Thurl Dowthitt was convicted and sentenced to death for the capital murder of Gracie Purnhagen committed in the course of aggravated sexual assault. Petitioner, though counsel, filed a Petition for Writ of Habeas Corpus [Doc. # 19] on December 30, 1998, and an Amended Petition ("Petition") [Doc. # 24] on February 11, 1999. The Court has jurisdiction pursuant to 28 U.S.C. § 2254.

The Amended Petition is before the Court on Respondent Gary Johnson's Motion for Summary Judgment ("Motion") [Doc. # 47] and Amended Motion for Summary Judgment ("Amended Motion") [Doc. # 50], to which Petitioner has responded in opposition ("Response") [Doc. # 52] and ("Supplemental Response") [Doc. # 55]. The Court has thoroughly reviewed the entire record in this case, including the full state court pretrial, trial, and habeas record.

The Court authorized substantial funding for Petitioner to obtain requested expert and other investigative services. The Court conducted an evidentiary hearing on the allegation that Delton Dowthitt, post-trial, recanted his trial testimony and confessed to the murder for which Petitioner was convicted. The Court also carefully considered and applied the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Based on this review of the record and the application of governing legal authorities, the Court concludes that Petitioner is not entitled to federal habeas relief.

FACTUAL BACKGROUND

Petitioner is in the custody of the Texas Department of Criminal Justice, Institutional Division, pursuant to a judgment and sentence of death from the 221st Judicial District Court of Montgomery County, Texas, in Cause No. 91-10-01240. Petitioner was tried before a jury upon a plea of not guilty and, on October 7, 1992, was found guilty of capital murder.

At Petitioner's trial, the State presented evidence that Petitioner and his son, Delton Dowthitt ("Delton") picked up Gracie and Tiffany Purnhagen, ages 16 and 9, on June 13, 1990. The State presented evidence that Petitioner cut Gracie's throat and sodomized her with a beer bottle. While Petitioner was murdering and sexually assaulting Gracie, Delton strangled Tiffany.¹

Following a separate punishment phase hearing, the jury answered in the affirmative both special issues submitted pursuant to Article 37.071(b) of the Texas Code of Criminal Procedure.² The jury then answered negatively the sentencing issue submitted pursuant to the Supreme Court's decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).³ In accordance with the jury's answers and applicable state law, the trial court sentenced Petitioner to death.

The Texas Court of Criminal Appeals affirmed Petitioner's conviction and sentence in a published opinion issued June 26, 1996. Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App.1996).

Petitioner filed a state application for habeas relief on August 19, 1997, and later supplemented the state application. The Montgomery County District Court entered Findings of Fact and Conclusions of Law on March 6, 1998, and recommended that relief be denied. See Findings of Fact and Conclusions of Law, contained in the state court record at 1121-1135 (cited herein as "FFCL"). The Court of Criminal Appeals reviewed the record and, finding the trial court's findings and conclusions to be accurate and supported by the record with some limited exceptions, denied Petitioner's request for habeas relief. Ex Parte Dowthitt, No. 37,557 (Tex.Crim. App. Sept. 16, 1998). Petitioner's request for a writ of certiorari was denied by the United States Supreme Court on April 19, 1999. Dowthitt v. Texas, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

After having obtained appointment of counsel on October 14, 1998 [Doc. # 10], Petitioner filed a petition for federal habeas relief on December 30, 1998 and supplemented the petition on February 11, 1999. The Court issued an order on January 4, 1999, staying Petitioner's scheduled execution.

STANDARDS OF REVIEW

This federal petition for habeas relief is governed by the applicable review provisions of the AEDPA, which became effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 335-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir.1997) ("the relevant date for determining the applicability of the AEDPA to habeas corpus petitions is the date that the actual habeas corpus petition is filed"), cert. denied, 525 U.S. 859, 119 S.Ct. 144, 142 L.Ed.2d 116 (1998). Under the AEDPA, federal habeas relief based upon claims that were adjudicated on the merits by the state courts cannot be granted unless the state court's decision (1) "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) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir.1999).

With reference to the first standard of review, applicable to legal issues and mixed issues, the "contrary to" clause applies to the state court's legal conclusions, and the "unreasonable application" clause applies to mixed questions of law and fact. Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). The "unreasonable application" standard regarding mixed questions permits federal habeas relief only if a state court decision is "so clearly incorrect that it would not be debatable among reasonable jurists." Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir.1997) (quoting Drinkard, 97 F.3d at 769), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). "In applying this standard, we must decide (1) what was the decision of the state courts with regard to the questions before us and (2) whether there is any established federal law, as explicated by the Supreme Court, with which the state court decision conflicts." Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir.1999).

The second standard of review under the AEDPA applies to factual issues and precludes federal habeas relief unless the state court's adjudication of the merits of Petitioner's claim was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Drinkard, 97 F.3d at 767. The state court's factual determinations are presumed correct unless rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Kitchens, 190 F.3d at 700.⁴

"If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless" certain conditions are satisfied. 28 U.S.C. § 2254(e)(2); see also Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (requiring Petitioner in pre-AEDPA habeas proceeding to show cause and actual prejudice for failure to develop facts in the state court proceeding before he can obtain an evidentiary hearing). The Fifth Circuit has held that "a petitioner cannot be said to have `failed to develop' a factual basis for his claim unless the undeveloped record is a result of his own decision or omission." Robison v. Johnson, 151 F.3d 256, 268 (5th Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999). Even in cases where the record does not establish that Petitioner "failed to develop" the factual basis for his claim in state court, the federal district court has discretion whether to conduct an evidentiary hearing. Id. (citing McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998)). An evidentiary hearing is not required if there are "no relevant factual disputes that would require development in order to assess the claims." See id. A federal habeas court properly denies an evidentiary hearing "when the only basis offered to establish a disputed fact question was an inadmissible affidavit." Beathard v. Johnson, 177 F.3d 340, 349 (5th Cir.), cert. denied, 528 U.S. 954, 120 S.Ct. 380, 145 L.Ed.2d 296 (1999).

The AEDPA's standards of federal habeas review apply to claims which were "adjudicated on the merits" by the state court. 28 U.S.C. § 2254(d); see also Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir.1999). Under the AEDPA, an "explicit denial of relief by the Texas Court of Criminal Appeals of [the petitioner's] claims qualifies as an `adjudication on the merits' entitled to deference under AEDPA." Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.1999); see also Miller v. Johnson, 200 F.3d 274, 281-82 (5th Cir.2000) (denial of relief by Court of Criminal Appeals is a denial of relief on the merits). If the state habeas decision did not address an issue, the federal habeas court "should `look through' to the last clear state decision on the matter." Jackson, 194 F.3d at 651.

The Court must evaluate each claim for relief individually. Relief based on cumulative error is available only where "(1) the individual errors involved matters of constitutional dimensions rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and ...