Emery v. Johnson

• Decision Date: 30 August 1996
• Docket Number: Civil Action No. H-95-3939.
• Citation: 940 F.Supp. 1046
• Parties: Jeff EMERY, Petitioner, v. Gary JOHNSON, Respondent.
• Court: U.S. District Court — Southern District of Texas

940 F.Supp. 1046

Jeff EMERY, Petitioner, v. Gary JOHNSON, Respondent.

Civil Action No. H-95-3939.

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

August 30, 1996.

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Thomas D. Moran, Schneider & McKinney, Houston, TX, for petitioner.

Meredith Anne Martinez, Office of the Attorney General, Austin, TX, for respondents.

ORDER

GILMORE, District Judge.

Pending before the Court are cross-motions for summary judgment (Instrument Nos. 17 and 21). Having considered the submissions of both parties, the record of the proceedings below, and the relevant law, the Court concludes that the respondent is entitled to summary judgment on all claims.

I.

A. Procedural Posture

The petitioner, Jeff Emery, is incarcerated pursuant to the judgment and sentence of the 272nd District Court in Brazos County, Texas, in cause number 14,695 styled The State of Texas v. Jeff Emery. Emery was originally convicted for the capital murder of LaShan Muhlinghaus on May 23, 1986. On November 14, 1990, the Court of Criminal Appeals reversed the conviction due to the fact that part of the record of pre-trial proceedings was lost. Emery v. State, 800 S.W.2d 530, 536 (Tex.Crim.App.1990). The State charged Emery by indictment with the capital offense of the intentional murder of Muhlinghaus committed in the course of committing and attempting to commit burglary. Emery pleaded not guilty before the jury and, on November 22, 1991, the jury found him guilty as charged in the indictment. On November 26, 1991, after a separate punishment hearing, the jury answered affirmatively the special punishment issues submitted pursuant to the former provisions of Article 37.071 of the Texas Code of Criminal Procedure. See Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) and (2) (West 1981, since amended). The trial court sentenced Emery to death by lethal injection.

The Texas Court of Criminal Appeals affirmed Emery's conviction and sentence in a published opinion on May 11, 1994, and denied rehearing on May 11, 1994. Emery v. State, 881 S.W.2d 702 (Tex.Crim.App.1994). On February 27, 1995, the United States Supreme Court denied his petition for writ of certiorari. Emery v. Texas, ___ U.S. ___, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995). On March 24, 1995, the trial court set an execution date of August 4, 1995.

Through court-appointed counsel, Emery filed an application for state writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure on July 5, 1995. On July 25, 1995, the state habeas trial court conducted an evidentiary hearing and, on July 28, 1995, filed findings of fact and conclusions of law recommending that relief be denied. On August 1, 1995, the Texas Court of Criminal Appeals denied relief on the basis that the record supported the trial court's findings and conclusions. Ex parte Emery, Application No. 29,220-01.

On August 1, 1995, Emery filed in this Court a pro se motion for appointment of new counsel under 21 U.S.C. § 848(q) and a motion for a stay of execution. This Court stayed Emery's execution on August 3, 1995, and appointed new counsel. Subsequently, Emery filed a second state habeas application in the state trial court on November 10, 1995, before filing his current petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 20, 1995. On February 21, 1996, the Texas Court of Criminal Appeals dismissed Emery's state habeas application based on the pendency of the proceeding in this Court. Ex parte Emery, No. 29,220-02. Both parties have filed motions for summary judgment on all claims.

B. Statement of Facts

The Texas Court of Criminal Appeals set forth the facts as follows:

The evidence showed that on the night of October 12, 1979, the deceased felt ill at work and returned early to the apartment she shared with a roommate. Once home, she undressed and went into her roommate's room to return a dress she had borrowed. [Emery] was hiding in the roommate's closet, having previously unlawfully entered the empty apartment with a pass key. [Emery] attacked the deceased from behind, stabbing her four times in the back. The deceased turned and [Emery] knocked her to the floor and continued stabbing her until she was dead. [Emery] then had sexual intercourse with the deceased's body. [Emery] wiped clean any fingerprints he might have left in the apartment and on the front door before fleeing the scene.

At home [Emery] showered and disposed of his blood-stained clothes and knife. Curiously, [Emery] then forced his wife, Deborah Emery, to accompany him back to the scene of the crime to watch the police investigation. [Emery] confessed to his wife that night that he had committed the murder and subsequently confessed to two other people.

The police investigation revealed no sign of a forced entry or of anything missing from the apartment. The deceased was stabbed twenty-five times, resulting in her death.

Emery, 881 S.W.2d at 704.

Emery raises a number of claims as grounds for federal habeas relief. The claims presented in Emery's Petition for a Writ of Habeas Corpus may be distilled as follows: (1) trial counsel rendered ineffective assistance of counsel by (a) opening the door to otherwise inadmissible confidential marital communications, (b) opening the door to extraneous offenses and by failing to request a limiting instruction in this regard, and (c) failing to object to the definition of "intentional" in the jury charge; (2) the prosecutor engaged in misconduct by allegedly requesting jail authorities to manipulate Emery's conditions of confinement to cause him to appear aggressive at trial in violation of Emery's fifth, sixth, and fourteenth amendment rights; (3) the State used Fred Zain to conduct DNA testing, thus violating Emery's sixth amendment right to counsel and fourteenth amendment right to due process; (4) the imposition of the death penalty violates Emery's eighth and fourteenth amendment rights because each local prosecuting attorney has the unreviewable discretion to seek the death penalty or a life sentence in connection with a capital murder conviction; (5) the imposition of the death penalty violated the eighth amendment because Texas law irrationally excludes those with two or more felony convictions from eligibility for the death penalty; (6) Emery was denied the right to testify in his own behalf by his attorney's coercion in violation of the fifth sixth, and fourteenth amendments; and (7) Emery's death sentence violates the eighth amendment because the jury charge did not include a vehicle by which the jury could give mitigating effect to evidence that Emery was abused as a child.

II.

A petitioner may obtain federal habeas relief "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Thus, to the degree that Emery's claims are grounded on violations of state law, they are not cognizable on federal habeas corpus review. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) ("We have stated many time that `federal habeas corpus relief does not lie for errors of state law.'"). Further, trial error, even of constitutional magnitude, provides a basis for reversal only if it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993), quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946); see also O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 999, 130 L.Ed.2d 947 (1995).

In consideration of summary judgment motions in ordinary civil cases, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1985). This case, however, is not an ordinary civil action but a federal habeas action challenging a state court judgment. The Federal Rules of Civil Procedure are thus applicable only to the extent that they do not conflict with the habeas rules and to the extent appropriate. Rule 11, 28 U.S.C. foll. § 2254. Further, when, as here, a state prisoner's factual allegations have been resolved by express or implicit fact findings of the state courts, and he does not demonstrate applicability of a statutory exception to the presumption of correctness set forth in 28 U.S.C. § 2254(d), it is inappropriate, if not unauthorized, for such facts and inferences to be drawn in his favor. Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983); Sumner v. Mata, 449 U.S. 539, 547-48, 101 S.Ct. 764, 769-70, 66 L.Ed.2d 722 (1981). Finally, where there has been a hearing in state court, a habeas petitioner is not entitled to additional factual development of his grounds for relief in federal habeas review. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992).

Under Section 2254(d), findings of fact made by a state court after a hearing on the merits of a habeas action are entitled to a presumption of correctness on federal habeas corpus review. Marshall, 459 U.S. at 432, 103 S.Ct. at 849. The presumption applies to fact findings of state appellate courts that are based on a review of the record, as well as to state trial court findings. Sumner, 449 U.S. at 546-47, 101 S.Ct. at 769. When, as here, the same judge who presided at trial conducts the petitioner's state habeas proceedings and makes findings based on the record, such a procedure is sufficient to afford the petitioner a full and fair hearing. Amos v. Scott, 61 F.3d 333, 347 (5th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995); Armstead v. Scott, 37 F.3d 202, 207-08 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1994).

Federal courts should...