Emery v. Johnson

• Decision Date: 10 September 1997
• Docket Number: No. 96-20826,96-20826
• Parties: Jeff EMERY, 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 191

139 F.3d 191

Jeff EMERY, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 96-20826.

United States Court of Appeals Fifth Circuit.

Sept. 10, 1997.

On Petition for Rehearing April 15, 1998.

Thomas Donald Moran, Leora Teicher Kahn, Schneider & McKinney, Houston, TX, for Petitioner-Appellant.

Meredith Anne Martinez, Assistant Attorney General, Austin, TX, for Respondent-Appellee.

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

Before KING, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jeff Emery, proceeding in forma pauperis, appeals the denial of his petition for writ of habeas corpus. Concluding that several of his claims are barred by procedural default and that the others are without merit, we affirm and vacate the stay of execution.

I.

A.

One day in 1979, LaShan Muhlinghaus returned to her apartment and undressed. Unbeknownst to her, Emery, an accomplished burglar, had entered her apartment using a stolen pass key. When Muhlinghaus entered the apartment, Emery hid in her roommate's closet.

Muhlinghaus went into her roommate's bedroom to return a dress she had borrowed. Emery attacked Muhlinghaus, stabbing her twenty-five times. After she was dead, Emery had sexual intercourse with her body. The police did not find any evidence that Emery stole anything.

Emery returned to the house where he lived with his wife, Deborah Emery ("Deborah"). After showering and disposing of his blood-stained knife and clothes, Emery drove to the scene of the crime with Deborah to observe the police investigation. Emery confessed his actions to his wife and later to James Smith, his foster brother, and Marie Michaeloff.

Emery assaulted his wife at least every other day. Although he usually hit her with his fists, he occasionally used a metal bar, ashtrays, nicknacks, and lighters. He also would pound her head on the bathtub. At least once, he hit her child, who was a toddler, across the room. Finally, in July 1982, Deborah began divorce proceedings. Five months later, she reported Emery's crimes to the police.

B.

Emery was convicted of capital murder during the commission of a burglary, see TEX. PEN.CODE ANN. § 19.03(a)(2) (Vernon 1994), and was sentenced to death in 1986. The Texas Court of Criminal Appeals reversed because portions of the trial transcript had been stolen. See Emery v. Texas, 800 S.W.2d 530 (Tex.Crim.App.1990) (en banc).

The state retried Emery and obtained a second conviction, whereupon the jury sentenced him to death in 1991. On appeal, Emery unsuccessfully argued, inter alia, that the jury instructions at the penalty phase were inadequate because they did not allow the jury to consider all relevant mitigating evidence. See Emery v. Texas, 881 S.W.2d 702, 711-12 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995).

C.

In 1995, Emery filed his first state habeas petition, arguing, inter alia, that his right to testify on his own behalf had been denied and that his counsel rendered ineffective assistance by opening the door to the admission of his confession to Deborah and his history of burglary and by not objecting to the introduction of evidence that he slapped his wife. The state habeas trial court conducted an evidentiary hearing and issued various findings of fact. ¹ The Texas Court of Criminal Appeals denied the habeas petition on the merits in August 1995.

In November 1995, Emery filed a second state habeas petition, raising several new issues, including general challenges to Texas's death penalty scheme and new claims of ineffective assistance based on counsel's having convinced Emery not to testify and having not objected to a particular part of the jury charge. While that petition was pending, Emery filed the instant federal habeas petition.

Texas follows the rule that a state prisoner may seek habeas relief in state or federal court, but not both. Consequently, the Texas courts refuse to consider a habeas petition while a federal petition is pending. See Ex parte Green, 548 S.W.2d 914, 916 (Tex.Crim.App.1977). In February 1996, the Court of Criminal Appeals invoked this principle and dismissed Emery's second state habeas petition. In August 1996, the federal district court denied Emery relief on all his claims but granted a certificate of probable cause ("CPC") to appeal. See Emery v. Johnson, 940 F.Supp. 1046, 1065 (S.D.Tex.1996). ²

II.

A.

Our analysis of the claims that Emery raised only in his second state habeas petition is complicated by the doctrine of procedural default. A federal court may not consider a state prisoner's constitutional claim if the state courts based their rejection of that claim on an adequate and independent state ground. See Martin v. Maxey, 98 F.3d 844, 847 (5th Cir.1996). It is not always easy, however, to determine whether a state court decision denying collateral relief is based on state procedural grounds or, instead, on the court's interpretation of federal law. The Supreme Court has supplied us with a useful default rule: We will not apply a procedural default unless the last state court to consider a particular claim "clearly and expressly" relied on an independent and adequate state ground. Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991).

This default rule does not apply, however, "if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n. 1, 111 S.Ct. at 2557 n. 1. In such a case, "there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims." Id.

B.

1.

The federal district court reasoned that Emery's claims were procedurally barred because, if he tried to exhaust them in a proper manner, they would be barred by TEX.CODE CRIM. PROC. ANN. art. 11.071, § 5(a) (Vernon Supp.1997), which prohibits the filing of subsequent or untimely habeas applications, absent cause or actual innocence. ³ See Ex parte Davis, 947 S.W.2d 216 (Tex.Crim.App.1996) (en banc) (upholding the constitutionality of article 11.071). In a habeas context, we review the district court's determinations of law de novo and its findings of facts for clear error. See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir.1994).

Because article 11.071 is a new statute that is largely uninterpreted by state cases, we instead consider whether we should affirm on the basis of the abuse-of-the-writ doctrine. We may affirm a judgment on any ground supported by the record. See Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir.1989). ⁴

A second habeas petition is an abuse of the writ if the prisoner urges grounds that could have been, but were not, raised in his first habeas petition. See Russell v. Collins, 944 F.2d 202, 205 (5th Cir.1991) (per curiam). Such a doctrine, which the federal courts recognize, encourages efficient justice by requiring a prisoner to present all claims for relief at once. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1469-70, 113 L.Ed.2d 517 (1991). The Texas courts have recognized this doctrine for over twenty years. See, e.g., Ex parte Carr, 511 S.W.2d 523, 525-26 (Tex.Crim.App.1974).

An abuse of the writ can qualify as a procedural bar. See Murch v. Mottram, 409 U.S. 41, 45-46, 93 S.Ct. 71, 73-74, 34 L.Ed.2d 194 (1972) (per curiam). A procedural bar is not adequate, however, unless it is applied "strictly or regularly" to the "vast majority of similar claims." Amos v. Scott, 61 F.3d 333, 339 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995). Historically, Texas courts have failed to apply the abuse-of-the-writ-doctrine in a strict or regular manner, and, therefore, we have refused to honor it. See Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.1995).

This changed in 1994, when the Texas Court of Criminal Appeals announced the adoption of a strict abuse-of-the-writ-doctrine, tempered only by an exception for cause. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994) (en banc) (plurality opinion). Barber represents an adequate procedural bar for purposes of federal habeas review. See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995).

Emery has not cited any post-Barber case allowing an abusive writ, and our research has revealed none. Therefore, we are bound to follow Fearance and to hold that Emery's violation of Texas's abuse-of-the-writ-doctrine constitutes an independent and adequate procedural bar to our consideration of his barred claims. ⁵

2.

A petitioner may overcome a procedural default by showing cause and prejudice for that default. See Tucker v. Johnson, No. 97-20101 (5th Cir. July 2, 1997) (on petition for rehearing). Emery argues that his failure to anticipate the passage of article 11.071 constitutes cause for his failure to plead all his grounds for relief in his first habeas petition.

Emery filed his first state habeas petition in July 1995, over one year after Barber was decided, so he cannot claim ignorance of his duty to plead all his grounds for relief during his first petition for collateral review. Therefore, he has shown no cause for his violation of Texas's abuse of the writ doctrine.

III.

A.

Emery raises several ineffective-assistance-of-counsel claims. To establish ineffective assistance, he must demonstrate both deficient performance by his counsel and prejudice resulting from that deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

We compare counsel's performance to an objective standard of reasonableness, mindful of the strong presumption of adequacy. We will not find inadequate representation merely because, with the...