Draughon v. Dretke

• Decision Date: 30 September 2005
• Docket Number: No. 04-70043.,04-70043.
• Citation: 427 F.3d 286
• Parties: Martin Allen DRAUGHON, Petitioner-Appellee-Cross-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

427 F.3d 286

Martin Allen DRAUGHON, Petitioner-Appellee-Cross-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.

No. 04-70043.

United States Court of Appeals, Fifth Circuit.

September 30, 2005.

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Jeffrey J. Keyes (argued), James J. Long, Briggs & Morgan, Minneapolis, MN, for Draughon.

Tina J. Dettmer (argued), Austin, TX, for Dretke.

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

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury in Harris County, Texas, convicted Martin Allen Draughon of murdering Armando Guerrero during a robbery and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence.¹ The state trial court filed findings of fact and conclusions of law denying habeas relief which were in turn adopted by the Court of Criminal Appeals in an unpublished order in 2001.² Draughon filed his federal petition in 2002, and the federal district court entered the judgment now before us on September 20, 2004.³

In its opinion, the district court held that Draughon's counsel provided ineffective assistance at both the guilt and sentencing phases of his trial, and that the state court's contrary decision was an unreasonable application of settled federal law. It ordered the State of Texas to either release him or try him again. Draughon's convictions stemmed from his robbery of a restaurant. As he fled the scene of the crime, he shot and killed a pursuing bystander. He denied any intent to harm, insisting that he had been attempting to fire over the heads of his pursuers. The State offered testimony that the fatal shot that struck Guerrero in the chest was fired at close range, approximately ten steps away. The court found that defense counsel failed Draughon in not obtaining expert forensic examination of the path of the fatal shot; that such an effort could have provided the jury with evidence that the fatal bullet had bounced off the pavement in front of the victim and was fired some distance away.

The State filed a timely notice of appeal. In turn, Draughon seeks a certificate of appealability on a Penry claim should this court reverse.

I

On November 22, 1986, Draughon attempted to rob a Long John Silver's restaurant in Houston, Texas. Hubbard Eugene Taylor, the assistant manager, closed the restaurant at approximately 11:00 p.m. As he finished closing up, Taylor saw two relatives of his cashier gesturing to him through the window. Taylor and two employees went outside. A man wearing a stocking mask pointed a gun at them and said, "This is a stick up. Get back inside." The four complied. The robber told Taylor to "[g]et that alarm in the back. I know it's in the back." Taylor went to open the safe. The safe had a delay mechanism that required Taylor to wait ten minutes after entering the combination for a green light to come on, signifying that the safe could be opened. While Taylor waited, the robber approached him and asked, "[w]here is that green light?" While still waiting for the green light, Taylor heard some noise coming from the front of the restaurant. He later learned that the noise was caused by several people banging on the doors and windows. The robber then went to the back of the restaurant. Taylor heard the alarm go off and saw the robber leaving through the back door. Restaurant employee Susan Cuellar later identified Draughon as the robber.

Ricardo Guerrero lived near the restaurant. As he drove up to his apartment shortly before midnight on November 22, 1986, he saw Eva Cuellar running, crying and screaming for help. Guerrero followed Ms. Cuellar to the back of the restaurant. Attracted by her pleas for help others also followed. Guerrero saw the back door of the restaurant open and a man run through it. The man ran into the parking lot and turned around. Guerrero heard a shot, threw himself to the ground, and heard several more shots. He also heard a truck. When Guerrero looked up, he saw the man jumping into the bed of a moving truck. Guerrero testified at trial that the man fired no additional shots after jumping onto the truck. After the truck left, Guerrero stood up and saw his cousin, Armando Guerrero, lying on the ground with a bullet wound in his chest. Several of the men in the parking lot drove Armando to an emergency room, where he died.

Eva Cuellar, the mother of the restaurant cashier, was the key witness. She was standing near Armando when he was shot. She testified that she lived across the street from the Long John Silver's where her daughter Susan worked. With the late hour she became apprehensive about her daughter as the restaurant was preparing to close. Accompanied by her young son Eddie and armed with a knife, she walked to the restaurant and peered into the window. All appeared well at the time and she started back to the family home, leaving Eddie at the restaurant to accompany his sister home at closing. Not satisfied, she returned and this time saw that a man had drawn a stocking over his face and was holding a gun on the workers, including her daughter, Susan, and her son, Eddie. It was then that she fled down the street securing the help of some men who were having a beer in front of their homes. They returned to the restaurant and Armando suggested he and Ms. Cuellar go to the rear of the building and catch the robber if he fled out the back door. As they arrived at the rear Draughon suddenly burst through the door in a run. Ms. Cuellar testified that Draughon took about ten running steps after leaving the restaurant, and began shooting. She saw the "fire" from the pistol and Armando fall, holding his chest. According to her testimony, Draughon fired three to six times before jumping into the back of a waiting truck which was pulling away. The pursuers were not armed except for the knife Ms. Cuellar had earlier procured. Thinking that Draughon had harmed her children, she chased the fleeing Draughon, throwing her knife at him in frustration and without effect.

Norene Smith, a nurse working in the emergency room when Armando was brought in, described the medical staff's unsuccessful efforts to resuscitate him. Smith explained that the bullet struck Guerrero's heart, leaving a great deal of blood in the chest cavity. Dr. Aurelio Espinola, a forensic pathologist, testified that the gunshot wound caused the death.

Following his arrest, Draughon was tried for capital murder. The parties agree that the following summary of evidence found by the federal district court is accurate:

Draughon testified on his own behalf during the punishment phase of trial . . . . Draughon explained the events that led to the shooting. Kenneth Gafford had formerly worked for the Long John Silver's and knew how the restaurant was set up and how the safe and alarm system worked. His information led to the planned robbery. Draughon testified that he saw a crowd forming outside the restaurant during the attempted robbery, became nervous, and ran out the back door toward the pickup truck where Gafford was waiting to drive away. The pickup was parked near the back of the restaurant. As Draughon neared the truck, he turned and saw several people chasing him. Draughon testified that he dove into the back of the truck bed, leaned over the railing, and fired four shots. He testified that he aimed over the heads of the crowd and was only trying to scare people so they would stop chasing him. Draughon did not know that he shot Guerrero. Draughon offered no expert ballistics testimony in his defense. Charles Anderson, Firearms Examiner for the Houston Police Department, testified that nothing on the bullet recovered from Guerrero's body showed that it had hit an object and ricocheted before striking Guerrero.⁴

The district court also summarized the testimony offered by Draughon during the evidentiary hearing in support of his claim that counsel was ineffective for failing to present ballistics evidence during trial:

Lucian Haag, a certified criminalist, testified at the evidentiary hearing in this court.⁵ Haag has particular training and expertise in firearms evidence and has published several papers on firearms evidence. Haag testified that Draughon's counsel asked him to try to determine whether the fatal bullet could have hit a surface or object and ricocheted before striking Guerrero; to assess the distance from which the bullet was fired; to evaluate the quality of police investigation into Guerrero's death; and to opine on the work a ballistics expert could have done at the time of Draughon's trial. Haag testified that there were criminalists doing such work at the time of Draughon's trial.

Haag tested a Raven .25 pistol with a magazine and a single live round of ammunition and examined a fired bullet. Haag examined the rifling characteristics against those on the fired bullet, which was retrieved from Armando Guerrero's body. Haag noted damage to the fired bullet in the ogive area — the narrower part of the bullet that does not come into contact with the gun barrel. He observed heavy striations over the length of the bullet. Haag testified that the damage was caused by the bullet impacting a flat, unyielding, abrasive surface. Haag concluded that this damage occurred after the rifling marks were made, meaning that the striations occurred after the gun discharged the bullet. Haag concluded that this damage was a consequence of the bullet ricocheting off a hard, flat, unyielding surface, such as concrete or asphalt. Haag also concluded that the bullet had struck this hard, flat surface at a low angle, estimating it to be five degrees or less, and deflected or ricocheted off this surface before striking Guerrero. Haag opined that this damage would be obvious to any competent firearms examiner. Haag also examined the bullet under a...