Graham v. Johnson

• Decision Date: 25 February 1999
• Docket Number: No. 99-20014,99-20014
• Citation: 168 F.3d 762
• Parties: Gary GRAHAM, now known as Shaka Sankofa, 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 762

168 F.3d 762

Gary GRAHAM, now known as Shaka Sankofa, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 99-20014.

United States Court of Appeals Fifth Circuit.

Feb. 25, 1999.

As Revised Feb. 26, 1999.

Richard H. Burr, III, Burr & Welch, Jack B. Zimmermann, Zimmermann & Lavine, Houston, TX, for Petitioner-Appellant.

Delane T. Hendrix, Austin, TX, for Respondent-Appellee.

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

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

KING, Chief Judge:

Gary Graham, now known as Shaka Sankofa, ¹ a Texas death row inmate, appeals the district court's dismissal of his fourth habeas corpus application under 28 U.S.C. § 2254. Alternatively, he moves for the recall of the mandate in one of his prior habeas cases or for an order pursuant to 28 U.S.C. § 2244(b)(3)(C) authorizing the district court to consider a successive habeas corpus petition. We previously denied this last motion in an order entered February 8, 1999, in which we noted that we would rule on the other two pleadings and issue a full opinion explaining our decision in all three matters as soon as possible. We now do so.

Graham's current application for a writ of habeas corpus is successive to a previous petition he filed in 1988 that was fully litigated on the merits and, in fact, was twice considered by the Supreme Court. In 1996, more than two years before Graham brought this application, Congress passed a new law, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that was specifically designed to limit and, in some cases, completely bar successive applications such as Graham's. Not only did AEDPA itself impose stringent restrictions on successive habeas applications, but the House Conference Report accompanying it explicitly stated that it incorporated "reforms to curb the abuse of the statutory writ of habeas corpus, and to address the acute problems of unnecessary delay and abuse in capital cases." Graham concedes that all of the claims he makes today could have been raised in 1988 and that if AEDPA governs his current application, he is entitled to no relief whatsoever. Thus, our task is to determine whether AEDPA applies to him. We conclude that it does. Accordingly, we must affirm the judgment of the district court dismissing Graham's fourth federal habeas application and deny his motion for recall of the mandate in his previous habeas case.

I. FACTUAL AND PROCEDURAL HISTORY

This appeal and the accompanying alternative motions are the latest installments of a story that began nearly eighteen years ago. About 9:30 p.m. on May 13, 1981, in the parking lot of a Safeway Food Store in Houston, Texas, Bobby Lambert, a customer at the store, was shot and killed by a lone black male who apparently was trying to rob him. The perpetrator left the scene without being apprehended. After his arrest for another offense about a week later, Gary Graham, then seventeen years old, was charged with the capital murder of Lambert.

At trial in the 182nd Judicial District of Harris County, Texas, Bernadine Skillern was the only witness to identify Graham as Lambert's killer; two other eyewitnesses, Wilma Amos and Daniel Grady, were unable to do so because they did not get a good enough look at, or did not sufficiently recall, the perpetrator's face. Immediately before Skillern testified that Graham was the shooter, the trial judge conducted a hearing outside the presence of the jury to determine whether her identification was "tainted by [an] illegal lineup." Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (citing United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Skillern described in some detail how she had picked Graham out of a May 26, 1981 photographic display and a May 27, 1981 police station lineup, and defense counsel raised many of the same issues regarding suggestive identification procedures that Graham's current counsel now brings before us. The trial judge concluded that Skillern's identification was "based solely on [Skillern's] independent recollection of the facts as they occurred on May 13, 1981" and was "made independently of any conversation or processes that were performed by members of the Houston Police Department." The jury then returned, and Skillern testified in open court that Graham was the person she had seen shoot Lambert. Defense counsel presented no evidence at the guilt-innocence stage. The jury convicted Graham of capital murder and answered the three death penalty special issues ² in the affirmative. ³ Accordingly, the court sentenced Graham to death. On direct appeal, the Texas Court of Criminal Appeals affirmed Graham's capital murder conviction and death sentence in an unpublished opinion. See Graham v. State, 671 S.W.2d 529 (Tex.Crim.App. 1984) (unpublished table decision). Graham did not seek certiorari from the United States Supreme Court.

Instead, represented by new counsel, Graham filed a state habeas petition in July 1987, contending, inter alia, that he was incompetent and therefore could not constitutionally be executed, that the Texas capital punishment scheme was constitutionally defective for various reasons and did not allow the jury adequately to consider mitigating evidence, including youth, and that he received ineffective assistance of counsel. Counsel was alleged to be ineffective in numerous respects, including failing adequately to investigate, interview, and call alibi witnesses and not allowing Graham to testify. Graham's petition was supported by an affidavit signed by Dorothy Shields, William Chambers, Mary Brown, and Loraine Johnson ⁴ asserting that Graham had been with them continuously during the night of the offense, that Graham had told them that he had given their names to his trial counsel, that counsel did not call them to testify, and that Graham later informed them that counsel not only had refused to call alibi witnesses but also had prevented him from testifying on his own behalf. State district judge Donald Shipley, who had not presided at Graham's trial, held competency and evidentiary hearings. At the latter, Graham, three alibi witnesses (William Chambers, Mary Brown, and Dinah Miller), and Graham's trial counsel (Ronald Mock and Chester Thornton), testified. On February 9, 1988, Judge Shipley entered findings of fact and conclusions of law adverse in all respects to Graham. With respect to the ineffective assistance of counsel claim, he found:

4. Prior to trial, counsel [who had been appointed to represent Graham on June 12, 1981] reviewed the information in the State's file several times.

5. On numerous occasions prior to trial, counsel met with the applicant and attempted to discuss the facts of the case with him. The applicant stated only that he did not commit the robbery-murder and that he had spent the evening with a girlfriend whose name, appearance, and address the applicant could not remember.

6. Although defense counsel made numerous inquiries of applicant, he did not give his defense counsel where he had been and what he had been doing on the night of the instant offense, May 13, 1981.

7. No person ever presented himself to defense counsel as an alibi witness, either before, during or after trial.

8. Specifically, the applicant did not furnish his counsel with the names or addresses of Dorothy Shield [sic], William Chambers, Mary Brown, or Lorain [sic] Johnson as potential alibi witnesses.

9. This court finds that the testimony of William Chambers, Mary Brown, and Dinah Miller concerning Gary Graham's whereabouts on May 13, 1981 is not credible testimony.

10. Gary Graham was aware that an investigator was working with defense counsel in connection with the defense of his case.

11. Counsel for applicant hired an investigator, Merv West, who assisted them in investigating and interviewing possible defense witnesses.

Ex parte Graham, No. 335378-A (182d Dist.Ct., Harris County, Tex. Feb. 9, 1988). The state habeas trial court concluded that Graham had received effective assistance of counsel and recommended that the Texas Court of Criminal Appeals deny habeas relief. The Court of Criminal Appeals did so in an unpublished per curiam order with reasons issued February 19, 1988.

Shortly thereafter, Graham, through new counsel, filed a federal habeas application in the Southern District of Texas. In addition to challenging the racial and age composition of the grand jury that indicted him, the constitutionality of the Texas death penalty statute as applied to him, and his own competency to be executed, Graham asserted that he was denied the effective assistance of trial counsel. Specifically, he claimed that counsel failed adequately to investigate his case and introduce defense witnesses at trial. Although he told them of at least four alibi witnesses, Graham asserted, counsel neither interviewed nor called these individuals to testify. Graham also complained that counsel refused to permit him to testify, failed to obtain an independent psychiatric evaluation, did not object to the exclusion of certain jurors, allowed him to be tried in the same clothes he was wearing when arrested, concealed counsel Ronald Mock's personal acquaintance with chief prosecution witness Skillern, neglected adequately to investigate the extraneous offenses introduced against him at the punishment phase of his trial, and called only two punishment phase witnesses on his behalf. Without holding an evidentiary hearing, the district court denied relief, see Graham v. Lynaugh, No. 88-563 (S.D.Tex. Feb. 24, 1988), and the Fifth Circuit declined to issue a certificate of probable cause, see Graham v. Lynaugh, 854 F.2d 715, 723 (5th Cir.1988). The court of appeals panel specifically reviewed the ineffective assistance of counsel...