Finley v. Johnson

• Decision Date: 08 March 2001
• Docket Number: No. 99-40925,99-40925
• Citation: 243 F.3d 215
• Parties: (5th Cir. 2001) JAY MAYNARD FINLEY, 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 215

243 F.3d 215 (5th Cir. 2001)

JAY MAYNARD FINLEY, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

No. 99-40925

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

March 8, 2001

March 27, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Texas.

HILL^*, JOLLY, and BENAVIDES, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Jay Maynard Finley was convicted of aggravated kidnapping in Texas state court and sentenced to ten years' imprisonment, probated for five years; his probation was later revoked and he was incarcerated. After his appeal and state habeas corpus petitions were denied, he petitioned for federal relief pursuant to 28 U.S.C. 2254. The district court denied the petition as procedurally barred and this appeal ensued.

I.

Jay Maynard Finley was a city councilman for the City of Gladewater, Texas. On July 10, 1994, Finley picked up Louis Towery to take him to see a trailer that Towery wanted to rent. On the way, Finley asked Towery if he had been molesting Erika, Towery's daughter. Towery denied it. Finley said that the daughter had told the police that he had. At that point, Towery became upset and said that "she had run her f**ing head" and that he was going to have to "get them all." A few minutes later, Towery commented that he was going to "kill the bitch." After they arrived at their destination, Finley put a gun to Towery's side and asked him again whether he had been molesting Erika for years. Towery then confessed that he had.¹

Finley bound Towery up with duct tape and took him to the Gilmer police station. When they arrived, however, Finley became nervous because he believed that Towery was related to a Gilmer police sergeant named Ronald Towery. Instead of taking Towery inside the station, he drove back toward Gladewater and left him tied to a mailbox near the Union Grove Cemetery. Finley called the Gladewater Police Department and told them to go pick Towery up. Towery was released by the police a few minutes later.

At trial, Finley raised the defense of necessity, arguing that his actions were necessary to protect Towery's wife, Martha, and Erika from immediate harm. He was, however, convicted of aggravated kidnapping and was sentenced to ten years confinement, probated for five years. He filed no notice of appeal.

On October 27, 1995, Finley's probation was revoked, and he filed a notice of appeal of the revocation that same day. On November 27, 1995, he filed a motion for a new trial. In each of these applications for relief, Finley asserted that he was entitled to a new trial because the prosecution improperly suppressed exculpatory evidence at trial in violation of Brady v. Maryland, 373 U.S. 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He contended that because he had filed a pre-trial motion pursuant to Brady, the prosecutor was required to, but did not, reveal that, two days after the alleged kidnapping, the prosecutor had secured a restraining order against Towery based on claims of sexual assault and domestic violence. In neither of these pleadings, however, did Towery allege when he learned of this fact.

There was no ruling on Finley's motion for a new trial and it was overruled by operation of law after the passage of 75 days. Tex. R. App. P. 21.8(c). His probation revocation appeal was denied on March 14, 1997, in an unpublished opinion. He filed an application for a writ of habeas corpus reasserting his Brady claim, but the Texas Court of Criminal Appeals denied it without written order on December 9, 1998.²

Finley filed the instant application for federal habeas relief on February 26, 1999. In it, he reasserts his Brady claim. On July 12, 1999, the district court adopted the Magistrate Judge's Report and Recommendation and held that Finley has procedurally defaulted federal review of this claim and dismissed the petition with prejudice. Finley timely filed this appeal.

In order to obtain a Certificate of Appealability ("COA") from the district court, Finley had to make a substantial showing that he had been denied a federal right. Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996). To do this, he had to demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions are adequate to deserve encouragement to proceed further. James v. Cain, 50 F.3d 1327, 1330 (5th Cir. 1995). The district court held that he had made such a showing with regard to whether dismissal of his petition on the grounds of procedural default might result in a fundamental miscarriage of justice. On August 23, 1999, it granted him a COA on this issue.

Finley filed a motion with this court for a COA on the issue of whether the district court erred in holding that his Brady claim has been procedurally defaulted. On April 3, 2000, we certified this additional ground for appeal.

We review the district court's findings of fact on these two issues for clear error, but conduct a de novo review of its conclusions of law. Mann v. Scott, 41 F.3d 968, 973 (5th Cir.1994).

II. A.Procedural Default

A claim that a state has withheld a federal right from a person in its custody may not be reviewed by a federal court if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision. Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72 (1977); Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). To satisfy the "independent" and "adequate" requirements, the dismissal must "clearly and expressly" indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims. See Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995). This rule applies to state court judgments on both substantive and procedural grounds. Id. Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker, 501 U.S 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

The last state court to consider Finley's Brady claim was the Texas Court of Criminal Appeals which did not issue a written opinion when it dismissed his habeas petition. Pursuant to Y1st, the federal court "looked through" this unexplained decision to find the last state court which issued a reasoned opinion on the issue. That court - The Texas Court of Appeals - had before it Finley's appeal of his probation revocation. Absent any allegation that the Brady claim was newly discovered, the court rejected Finley's attempt to raise it, holding that all such claims which could have been raised on direct appeal of his conviction were barred. See Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Cr. App. 1996). Furthermore, the court held that the validity of the original conviction could not be challenged in the appeal of his probation revocation order. The federal district court interpreted this decision as a holding that Finley's Brady claim was procedurally barred from state review. The district court held, therefore, that the claim was barred from federal habeas review as well. See Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).

Finley argues that the district court's interpretation of the Texas court's decision is erroneous. He contends that the Texas Court of Appeals did not hold that his Brady claim was procedurally defaulted; only that it was without jurisdiction to hear that claim in the context of an appeal of his probation revocation. He contends that no Texas court has held that it was procedurally defaulted. Furthermore, he argues that we should hold that this claim is cognizable on federal habeas review because he was unaware of the facts underlying his Brady claim until long after the time for filing an appeal of his underlying conviction had expired.

This argument has never been made to a Texas court - not on direct appeal of his probation revocation, not in his motion for new trial, not in his petition for discretionary review, not in his state habeas petition. In fact, the first time this argument appears in this case is in Finley's objections to the magistrate's report recommending that the district court deny the Brady claim on the grounds of procedural default.³ Such a claim of newly discovered evidence may well have supported his Brady claim in his motion for new trial or on state collateral attack, but it is clear that, absent such an argument in those forums, Finley's Brady claim was procedurally barred there since it is the sort of claim that could have been raised on direct appeal but was not. Gardner, 959 S.W.2d at 199. If there is a valid reason why it was not, Finley has never shared that reason with the state courts.

Furthermore, since Finley now seeks federal habeas relief based upon factual allegations that he has never made in the Texas courts, it is clear that he has failed to exhaust his state remedies. Nobles, 127 F.3d at 419-20. To exhaust his state remedies, a habeas petitioner must fairly present the substance of his claim to the state courts. Piccard v. Connor, 404 U.S. 270, 275-76 (1971). The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7 (1982).

Finley cannot return to the Texas courts to cure this deficiency, however, because the Texas abuse of the writ doctrine prohibits a second habeas petition, absent a showing of cause, if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. Nobles, 127 F.3d at 422-23. Obviously, he...