Houston v. Waller
| Decision Date | 20 April 2011 |
| Docket Number | No. 08-5583,No. 08-5584,08-5583,08-5584 |
| Parties | WILLIAM LEWIS HOUSTON, Petitioner-Appellee/Cross-Appellant, v. ROBERT WALLER, Warden, Respondent-Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
WILLIAM LEWIS HOUSTON, Petitioner-Appellee/Cross-Appellant,
v.
ROBERT WALLER, Warden, Respondent-Appellant/Cross-Appellee.
No. 08-5583
No. 08-5584
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Dated: April 20, 2011
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
BEFORE: NORRIS, ROGERS and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Warden Robert Waller appeals the district court's grant of a writ of habeas corpus to petitioner William Houston based on a violation of Houston's due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Houston cross-appeals, arguing that a second ground for habeas relief, premised on ineffective assistance of counsel, was erroneously rejected by the district court. We AFFIRM the district court's grant of habeas relief on Houston's Brady claim.
A. Houston's Arrest, Conviction, and Direct Appeal in State Court
Houston was convicted in state court of selling cocaine in various amounts on six occasions, facilitating the sale of cocaine on one occasion, selling counterfeit cocaine on one occasion, and aggravated assault. The events leading to these convictions took place between February and May 1997. The drug purchases were made by Ted Watkins, a paid undercover agent, and monitored by
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Officer Dan Miller ("Miller") of the Giles County Sheriff's Department, and Agent Pat Howell ("Howell") of the Tennessee Bureau of Investigation ("TBI"). Both Miller and Howell testified at Houston's trial in April, 1999. Houston received a sentence of seventy-two years.
On direct appeal, Houston argued error on various grounds unrelated to the instant Brady claim. On December 7, 2000, the Court of Criminal Appeals of Tennessee affirmed Houston's conviction, but reduced his sentence to forty-six years. The Supreme Court of Tennessee denied Houston permission to appeal on May 8, 2001.
B. Howell Reveals His Cocaine Use
TBI agent Howell had worked for the TBI from February 16, 1989 until April 9, 1998, and again from November 2000, to September 18, 2001. Howell was the case agent on Houston's case, meaning he was in charge of the case and it was "his responsibility to organize the case, organize any actions that take place in that case, keep a case file, and prepare the case for prosecution." Howell also would help fill in portions of the transcribed recordings from the wires that the confidential informant wore that were unintelligible. Over a two-month period beginning in February 1997, Howell supervised the controlled buys from Houston, took possession of the cocaine after the buys, and was responsible for submitting the cocaine to the TBI. In five of the six buys, the amount of cocaine submitted to the TBI evidence lab was less than the amount agreed on for the buy. In the sixth and final buy, Howell determined, based presumably on experience of one sort or another, that the substance the confidential informant had received was not cocaine, and Howell returned to Houston's home posing as an associate of the confidential informant and demanded his money back.
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When confronted by Howell, Houston drew a gun on him. In response, Howell drew his own firearm and Houston fled into the house. This incident was the basis for the aggravated assault charge against Houston.
On September 15, 2001, Howell called Roy Copeland, an officer with the TBI Drug Investigation Division, and informed Copeland that he had been using cocaine. Copeland informed others at the TBI of what Howell had told him, and Howell was put on leave pending an investigation. Howell subsequently resigned.
Howell has given conflicting accounts of when he began using cocaine and how frequently he used it. In the course of a TBI investigation into Howell's conduct, Howell admitted that he had been dealing with depression for several years; that he had been hospitalized in Arizona for his drug use during the time period between 1998 and 1999 in which he was not employed by the TBI; that he had a psychological dependency on cocaine; that he used an escort service on more than one occasion for sex; that he had on a couple of occasions used cocaine with women from the escort service; and that he had taken cocaine from drug purchases that he had made while working for the TBI, prior to their submission to the TBI, as well as from cocaine he had checked out from the TBI Crime Laboratory for "reverse" operations, in which he would act as an undercover drug dealer. The occasions where Howell obtained cocaine from amounts checked out from the TBI included at least once in 1997 or 19981, and once that produced the cocaine he had in his possession the night he
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called agent Copeland.2 The TBI investigation only reviewed the evidence in cases that Howell had worked on since his return to the TBI in 2000. That review showed that in six instances in the 21-month period preceding his confession, Howell delivered to the TBI a lesser amount of cocaine than that for which he had paid.
In a sworn statement to the TBI, Howell stated that he first started using cocaine in 1998 while undercover, taking cocaine both from an undercover buy and from cocaine checked out for an undercover operation. Howell stated that the next time he used cocaine was in July 2000, obtaining "small amounts" of cocaine from purchases he would make, and that he did this three to four times over a six-month period. Howell stated that at the beginning of 2001, he went for about ten weeks without using cocaine, and then started using cocaine again approximately twice a week. Howell recalled some of the specific cases in which he removed cocaine from buys, sometimes replacing the amount with baking soda. Howell admitted that once in May or June of 2001, he used his own money to purchase cocaine through a confidential informant, who was under the impression that it was a "controlled buy." On another occasion, Howell purchased cocaine using his own money from an individual who was under investigation.
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On October 19, 2001, Howell was indicted on four counts of tampering with evidence, and one count of possession of a controlled substance. On February 20, 2003, Howell pled guilty to two counts of tampering with evidence. During the April 21, 2003, sentencing hearing in that case, Howell took the stand. He first stated that he began using cocaine in 2000, but under cross-examination admitted that he used cocaine for the first time in 1997.3 Howell stated that it was in part because of his cocaine usage that he left the TBI in February 1998 and returned in November 2000. During this absence, Howell attended a treatment center in Arizona, Cottonwood de Tucson, for a month of in-patient treatment. Howell testified that when he returned to the TBI, he did not inform anyone that he had a cocaine problem. Howell received a sentence of three years probation.
Howell testified at Houston's trial in April 1999, during the window of time in which he had left the TBI. Howell's cocaine use was not mentioned on direct or cross examination, or at any other point during Houston's trial or direct appeal. Howell later testified at Houston's post-conviction hearing and in the district court, as further described below.
C. Houston's Petition for Post-Conviction Relief in State Court
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On November 21, 2001, Houston filed a pro-se petition for post-conviction relief. The pro-se petition made four claims for relief, including a claim premised on newly discovered evidence. In the process of making his argument based on newly discovered evidence, Houston claimed, inter alia, "that Howell tampered with and withheld evidence favorable to Defense," "this newly discovered evidence is such that it seriously impeaches the credibility of the undercover agent who testified for the State," "neither the defendant nor his counsel had knowledge of the alleged facts (about Agent Howell) prior to trial," "[t]he trial transcript indicates defense counsel had no concrete facts that Howell was a crooked cop who tampers with evidence," and "[t]he materiality of this newly relevant evidence is such that would affect the outcome or would change the verdict in this case." Houston also cited, quoted, and discussed State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993), which cites Cagle v. Davis, 520 F. Supp. 297, 309 (E.D. Tenn. 1980), aff'd, 663 F.2d 1070 (6th Cir. 1981). Houston argued that in Singleton, "The Court of Criminal Appeals ordered a new trial on [the] basis of newly discovered evidence seriously impeaching the credibility of the undercover agents who testified for the State." Houston also discussed the exhaustion requirement for federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and concluded: "In this regard, the petition in this case suggests that the petitioner has now presented his federal claim to the state courts for review." After the appointment of counsel, an Amendment to Petition for Post-Conviction Relief was filed, stating, inter alia:
3. NEWLY DISCOVERED EVIDENCE...
That the TBI has an internal file with
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