Green v. Johnson

• Decision Date: 11 November 1998
• Docket Number: No. 98-50065,98-50065
• Citation: 160 F.3d 1029
• Parties: Norman Evans GREEN, 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 1029

160 F.3d 1029

Norman Evans GREEN, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice Institutional Division, Respondent-Appellee.

No. 98-50065.

United States Court of Appeals Fifth Circuit.

Nov. 11, 1998.

John F. Carroll, Leon, Amberson & Carroll, San Antonio, TX, for Petitioner-Appellant.

Gena A. Blount, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

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

Before DAVIS, JONES and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Petitioner Norman Evans Green appeals from the judgment of the district court denying him a certificate of probable cause ("CPC"). Because Green has not made a substantial showing of the denial of a federal right, we affirm. In doing so, we acknowledge the district court's excellent opinion in this case, which should have apprised Green that his arguments are unmeritorious.

I. Background

In 1985, Green was convicted of capital murder and sentenced to death for killing Timothy Adams by gunshot while in the course of attempting to commit a robbery. The Texas Court of Criminal Appeals reversed Green's conviction and remanded the case for a new trial. See Green v. State, 764 S.W.2d 242 (Tex.Crim.App.1989). In 1990, a jury once again convicted Green of capital murder and sentenced him to death. Green's conviction and sentence were affirmed by the Texas Court of Criminal Appeals. See Green v. State, 840 S.W.2d 394 (Tex.Crim.App.1992). The United States Supreme Court denied his petition for certiorari. See Green v. Texas, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993).

In August 1993, Green filed an application for writ of habeas corpus in state court, followed by a supplemental application in October 1993. The state district court held an evidentiary hearing on Green's habeas application, and it issued a recommendation that his application be denied. In July 1994, the Texas Court of Criminal Appeals denied Green's application for a writ of habeas corpus. The United States Supreme Court denied his petition for certiorari. See Green v Texas, 513 U.S. 1026, 115 S.Ct. 599, 130 L.Ed.2d 510 (1994).

State and federal habeas proceedings ensued. Notably, Green filed a 149-page petition for federal habeas relief. After voluminous briefing had been received, the district court issued a 198-page Memorandum Opinion and Order denying Green's petition for habeas corpus, denying Green's request for an evidentiary hearing, denying a CPC, and vacating the stay of execution. Green filed a timely notice of appeal on January 9, 1998.

Green's execution was subsequently scheduled for March 12, 1998. This court stayed Green's execution pending review of his application for a CPC.

In the early afternoon of February 13, 1985, Green and Harold Bowens visited a Dyer Electronics store in San Antonio, Texas. They did not purchase any merchandise, but rather cased the store and departed. Later that same afternoon, Green and Bowens returned to the store. This time, however, they attempted to rob the business which was then being tended alone by an eighteen-year-old clerk, Timothy Adams. Shots were heard emanating from the store by witnesses in the surrounding businesses, and Green and Bowens were seen fleeing the store by numerous eye-witnesses, one of whom told the jury that one of the suspects appeared to conceal something as he fled. Green and Bowens subsequently abandoned their car when stopped by the police, fled on foot, and although ultimately evading arrest, officers found the gun used to kill Adams in the vicinity of where Green had been chased on foot.

Adams, who was shot three times and fatally wounded, stated to numerous witnesses at the scene of the crime that he was shot by two black men who unsuccessfully tried to rob the store. Leslie Daniels, Dyer's city manager, spoke to Adams, who told him that two black men who had been in the store earlier that day had done this to him and that Gerry Rickhoff, Adam's supervisor, would know who they were as Rickoff was there when the two men made their first visit to the store. Rickhoff identified those two men as Green and Bowens. Green's fingerprints were the only identifiable fingerprints on the gun. A police fingerprint expert testified that the prints he found on the gun were inconsistent with the weapon having been wiped clean of prints. The bullets had been manually altered with an "X" cut into the nose of each bullet in order to facilitate a more rapid and deadly expansion upon impact. Dr. Robert Bux, who performed the autopsy on Adams, testified that the nature of Adam's wounds indicated both that Adams was in a defensive position when shot and that the victim was probably either bent over steeply or squatting down. One of Green's fellow inmates, Billy Hazel, testified that Green confessed to killing Adams as part of an attempted robbery.

A more detailed statement of the facts in this case is contained in Green v. Texas, 840 S.W.2d 394, 398-400 (Tex.Crim.App.1992). The best summary of the case, however, is provided in the district court's thorough opinion. The district court wrote:

At trial, the evidence, viewed in the light most favorable to the prosecution, established that (1) the petitioner admitted to a cell mate in jail that he had shot Timothy Adams, (2) Adams had done nothing to provoke the shooting other than refusing to cooperate with a robbery attempt, (3) Adams was shot three times, once in the abdomen, once in the chest, and once in the arm, although the exact order of the wounds could not be determined, (4) both the shot which struck Adams in the chest and the shot which struck him in the abdomen each separately caused sufficient physical damage to prove fatal, (5) there was at least some pause between shots during the sequence of shots fired in the store, possibly between the second and third shots, (6) the bullets fired into Timothy Adams had been altered to make them more deadly than ordinary bullets of the same type, (7) the trajectory of the bullet wound in Timothy Adams' chest indicated that he was probably bent over at the time that the bullet entered his body, and (8) when confronted by the police, the petitioner successfully fled.

II. Standard of Review

In an appeal from a request for habeas relief, this court reviews a district court's factual findings for clear error and issues of law de novo. See Moody v. Johnson, 139 F.3d 477, 480 (5th Cir.1998).

After Green filed his application for a CPC, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), changed the jurisdictional requirements for obtaining a CPC and now requires a petitioner to obtain a COA. See 28 U.S.C. 2253(c)(2). Because Green's federal habeas action was filed on December 5, 1994, before the effective date of AEDPA, the pre-AEDPA habeas standards apply to his appeal. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). Generally, the standards for issuing a COA and a CPC are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998). The district court denied Green a CPC.

A CPC is granted only if the defendant has made a substantial showing of the denial of a federal right. See Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983); Lucas, 132 F.3d at 1073. The defendant must "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." Barefoot, 103 S.Ct. at 3394 n. 4; see also Lucas, 132 F.3d at 1073.

III. Conflict of Interest

As a preface to his brief on the merits, Green complains that the state trial court should have disqualified the Bexar County District Attorney's Office from representing the state during his state habeas corpus proceeding. His theory of disqualification is that attorney Dennis McKnight, who had briefly served as one of Green's counsel during the pretrial phase of his original 1985 state trial, was now serving as an Assistant District Attorney for Bexar County. Green's contention is conclusional, as McKnight evidently played no role whatsoever in the state habeas proceeding. Green thus asserts that the entire District Attorney's office should have been disqualified because of McKnight's mere presence. Like the district court, we find no constitutional infirmity. To the extent Green asserts disqualification based on state law, even if he is correct (which is dubious), an error of state law made in state habeas corpus proceedings does not furnish a basis for habeas corpus relief. See Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir.1997), cert denied, --- U.S. ----, 118 S.Ct. 576, 139 L.Ed.2d 415 (1997). Further, there is no basis for asserting an unconstitutional conflict of interest, as Green has failed to identify any specific facts indicating how he was denied a full and fair hearing on the merits of any of his claims for relief in the state habeas corpus proceedings. He has not alleged any involvement of McKnight that might have tainted those proceedings in any way.

IV. Ineffective Assistance of Counsel

In the district court, Green made twenty-one assertions of ineffective assistance by his trial counsel. He has now narrowed down that list to thirteen. We will address Green's claim in four categories based on the phase of his trial in which they occurred: (a) voir dire, (b) guilt/innocence phase, (c) punishment phase, and (d) direct appeal.

To assert a successful ineffectiveness claim, petitioner is required to establish both (1) constitutionally deficient performance by his counsel and (2) actual prejudice as a result of his counsel's deficient performance. See Moody, 139 F.3d at 482 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). The failure to prove either...