Dowthitt v. Johnson, 00-20159

• Decision Date: 16 October 2000
• Docket Number: No. 00-20159,00-20159
• Citation: 230 F.3d 733
• Parties: (5th Cir. 2000) DENNIS THURL DOWTHITT Petitioner - Appellant v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 733

230 F.3d 733 (5th Cir. 2000)

DENNIS THURL DOWTHITT Petitioner - Appellant v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee

No. 00-20159

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 16, 2000

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

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit Judges.

KING, Chief Judge:

Texas death row inmate Dennis Thurl Dowthitt appeals from the district court's denial of habeas corpus relief. In order to obtain review of his claims, Dowthitt seeks a certificate of appealability (COA) from this court, pursuant to 28 U.S.C. § 2253(c)(2). We deny Dowthitt's request for a COA.

I. FACTUAL AND PROCEDURAL BACKGROUND

At Dowthitt's trial, the State presented evidence that Dowthitt and his son, Delton Dowthitt ("Delton"), age 16, picked up Gracie and Tiffany Purnhagen, ages 16 and 9, respectively, on June 13, 1990 in a bowling alley parking lot. According to Delton's testimony at Dowthitt's trial, Dowthitt sexually assaulted Gracie with a beer bottle and cut her throat with a knife.¹ Meanwhile, Delton strangled Tiffany with a rope.²

Following a jury trial, Dowthitt was convicted of the murder of Gracie Purnhagen committed in the course of aggravated sexual assault. On October 9, 1992, based on the jury's answers, Dowthitt was sentenced to death for capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence on June 26, 1996. See Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996).

On August 18, 1997, Dowthitt filed a state petition for habeas relief. The state district court, on March 6, 1998, entered findings of fact and conclusions of law and recommended that habeas relief be denied. The Court of Criminal Appeals, adopting most of the findings and conclusions, denied Dowthitt habeas relief. See Ex Parte Dowthitt, No. 37,557 (Tex. Crim. App. Sept. 16, 1998). On April 19, 1999, the United States Supreme Court denied Dowthitt's petition for a writ of certiorari. See Dowthitt v. Texas, 119 S. Ct. 1466 (1999).

After obtaining appointment of counsel and a stay of execution, Dowthitt filed his petition for habeas corpus relief in federal district court on December 30, 1998. In response to Dowthitt's amended petition on February 12, 1999, the State moved for summary judgment. The district court, on January 7, 2000, held an evidentiary hearing on Dowthitt's actual innocence claim. On January 27, 2000, the district court filed a detailed and careful Memorandum and Order and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt's request for a COA. After the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal of the district court's judgment denying habeas relief.

II. DISCUSSION

Because Dowthitt's petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) ("Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period of one year to file their federal habeas petitions, rendering them timely if filed by April 24, 1997."). Under AEDPA, a petitioner must first obtain a COA in order for an appellate court to review a district court's denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A).

28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right." This standard "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000) (internal quotations and citations omitted); see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000).

The formulation of the COA test is dependent upon whether the district court dismisses the petitioner's claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 120 S. Ct. at 1604. On the other hand,

[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Id. (emphasis added); see also Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

Furthermore, "the determination of whether a COA should issue must be made by viewing the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d)." Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). We give deference to a state court decision for "any claim that was adjudicated on the merits in State court proceedings" unless the decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or the decision "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)(2).

The "contrary to" requirement "refers to the holdings, as opposed to the dicta, of . . . [the Supreme Court's] decisions as of the time of the relevant state-court decision." (Terry) Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). The inquiry into whether the decision was based on an "unreasonable determination of the facts" constrains a federal court in its habeas review due to the deference it must accord the state court. See id.

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than . . . [the Supreme Court] has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from . . . [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id.

Section 2254(d)(2) speaks to factual determinations made by the state courts. See 28 U.S.C. § 2254(e)(1). While we presume such determinations to be correct, the petitioner can rebut this presumption by clear and convincing evidence. See id. Absent an unreasonable determination in light of the record, we will give deference to the state court's fact findings. See id. § 2254(d)(2).

Dowthitt seeks a COA from this court on the following issues³: (1) actual innocence, (2) ineffective assistance of counsel, (3) admission of DNA evidence without a factual predicate, (4) State misconduct, (5) failure to instruct the jury on lesser-included offenses, and (6) the district court's limited evidentiary hearing.

A. Actual Innocence

"Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993).⁴ Rather, a claim of actual innocence is "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 404. In order for Dowthitt to obtain relief on this claim, "the evidence must establish substantial doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial." Schlup v. Delo, 513 U.S. 298, 316 (1995) (emphasis added).

The Herrera Court did assume, arguendo, "that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would . . . warrant habeas relief if there were no state avenue open to process such a claim." 506 U.S. at 417. However, this circuit has rejected this theory. See Graham v. Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000).

Thus, Dowthitt must first raise substantial doubt about his guilt, which would then cause us to examine any barred constitutional claims.⁵ Dowthitt's main argument in support of his innocence is that his son Delton confessed to killing Gracie.⁶ Dowthitt bases this claim on the following: a signed declaration by his nephew Billy Sherman Dowthitt that Delton told him that "Delton killed his girlfriend"; an unsigned affidavit of David Tipps, a former prison inmate in Delton's prison block, stating that Delton claimed to have killed both girls; a signed affidavit by Joseph Ward, a defense investigator, who states he drew up the affidavit that Tipps later refused to sign out of fear for himself; a signed affidavit of James Dowthitt, Dowthitt's brother, that his son Billy told him that Delton said he had killed both girls; and Dowthitt's own written proffer of innocence.

Not finding it necessary to conduct an evidentiary hearing, the state habeas court rendered its decision based upon the record. The court found...