Kirkpatrick v. Whitley
| Decision Date | 20 May 1993 |
| Docket Number | No. 91-3515,91-3515 |
| Citation | 992 F.2d 491 |
| Parties | Frederick KIRKPATRICK, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, et al., Respondents, St. Tammany Parish District Attorney's Office, Movant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Nicholas J. Trenticosta, Sarah L. Ottinger, Loyola Death Penalty Resource Center, New Orleans, LA, for petitioner-appellant.
William R. Campbell, Jr., Michael S. Fawer, New Orleans, LA, for State of LA.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.
Convicted of capital murder by a Louisiana jury and sentenced to death Frederick Kirkpatrick seeks federal habeas relief for the second time. The district court denied relief. We now vacate and remand for an evidentiary hearing to determine whether Kirkpatrick's claims relating to prosecutorial misconduct are supported in fact and to reconsider the abuse of the writ issue in light of the intervening decision by the Supreme Court in Sawyer v. Whitley. 1
In our prior panel opinion we summarized the facts:
On the night of January 27, 1982, Frederick Kirkpatrick and Charles Faulkner were in the home of Steven Radoste, who lived alone in the Pearl River area of St. Tammany Parish. During the night, Radoste was murdered: he was struck in the head with a heavy glass object, stabbed with a butcher knife in the abdomen and chest, and shot in the head. Radoste's house was robbed, and his pickup truck was stolen.... Kirkpatrick confessed that he and Faulkner had driven the truck to a remote area and that he had watched Faulkner burn it. He also stated that Faulkner possessed a .22 caliber Derringer firearm 2.... Police seized several of Radoste's belongings from Kirkpatrick's apartment, as well as a pair of Kirkpatrick's sneakers, the sole pattern of which was matched to a bloody footprint at Radoste's home. 3
Kirkpatrick, on the advice of counsel, turned down a plea offer which would have resulted in a life sentence. Faulkner was tried separately and sentenced to life in prison. Kirkpatrick claimed that he stabbed Radoste in self defense. Although his version of the events has been inconsistent, Kirkpatrick testified that he stabbed Radoste after Radoste made, at gunpoint, unwelcome homosexual advances.
Kirkpatrick explained his presence in Radoste's home by claiming that Radoste gave him and Faulkner a ride when they were hitchhiking in Mississippi, and invited them to his home in Louisiana. According to Kirkpatrick, Radoste suggested that Kirkpatrick take a shower and then, after he finished showering, demanded sexual favors. When Kirkpatrick refused, Radoste pulled a gun. Kirkpatrick claims that he then grabbed a knife, while Radoste was distracted, and stabbed him. He offered no explanation for the two pillows found on Radoste's head nor for the bullethole through one and the bullet in the victim's head. 4
It is clear that the decedent's sexual preference was a significant issue at trial because it bore upon the factual basis for Kirkpatrick's claim of self defense. To rebut Kirkpatrick's theory the prosecution called Officer McKormick, one of the investigating officers, who testified that the only evidence found of Radoste's sexual preference was a Playboy magazine, suggestive of heterosexual interest. The prosecution also offered a photograph depicting a crutch near the victim. Beyond the obvious potential of generating sympathy for the victim, the crutch pointedly tended to discount the victim's ability to present the sort of threat that would justify the use of deadly force in self defense. The prosecution also presented testimony of Radoste's neighbor, David Garrett, who claimed to have seen Radoste walking on crutches when Garrett delivered a spaghetti dinner to Radoste, at the same time Kirkpatrick claimed to have been riding in Radoste's car.
Kirkpatrick filed his first state court application for habeas relief on October 17, 1984. After a limited evidentiary hearing relief was denied. On September 19, 1984, the Louisiana Supreme Court denied remedial writs. Kirkpatrick promptly filed his first federal application complaining of numerous deficiencies in his trial as well as the method of electrocution. All relief was denied. 5 We affirmed in part and vacated in part instructing the district court to make factual findings regarding the sufficiency of trial counsel's efforts to suppress physical evidence. 6 On remand the district court again found no basis for relief. We affirmed. 7 A second state habeas application, raising all of the points raised in this, his second federal application, won Kirkpatrick a temporary stay of execution, but permanent relief ultimately was denied. Although it originally scheduled an evidentiary hearing on Kirkpatrick's claims, the state court denied relief without holding a hearing. The Louisiana Supreme Court again refused to hear the case.
The present federal habeas petition alleges multiple grounds for collateral relief. The claims raised can be summarized as follows: (1) the prosecution did not share exculpatory material with the defense, some of which flatly conflicted with the prosecution's presentation of the facts, suggesting that the prosecution suborned perjury or, at least, withheld exculpatory material despite a Brady 8 request; (2) the prosecution tampered with witnesses by improper threats; (3) Kirkpatrick received ineffective assistance of counsel; (4) the trial court erred in the sentencing phase when it refused to instruct the jury on the parolability of the defendant; and (5) death in the Louisiana electric chair is cruel and unusual punishment.
The district court, in a thorough and reasoned opinion, withheld relief under the then-controlling standards. No evidentiary hearing was had. The court assumed the truth of the first claim, suppression and/or knowing use of perjured testimony, and further assumed that the claims were not barred by Kirkpatrick's failure to raise them in the first petition but denied relief, concluding that neither the conviction nor the sentence were tainted by the assumed misconduct. 9 The second claim, tampering with witnesses, was reviewed to determine whether a different outcome would have been reached had the tampering been disclosed, the court answered the question in the negative. The third claim, ineffective assistance of counsel, was dismissed for abuse of the writ. The jury instruction, the fourth claim, was also dismissed for abuse of the writ and alternatively for lack of merit. 10 The final claim, that Louisiana's chosen method of execution was unconstitutional as applied, failed on its merits. Kirkpatrick timely appealed. On appeal we review the factual findings for clear error; mixed questions of fact and law generally receive independent review, and questions of law are reviewed de novo. 11
Kirkpatrick makes allegations, which are substantially supported by evidence not previously available to him, that raise serious questions about the reliability of the prosecution's evidence. Kirkpatrick claims that the prosecution knew: (1) that Radoste possessed substantial hardcore homosexual pornography of which Officer McKormick was aware; (2) that Radoste had a drawer full of rubber gloves, which are commonly used by homosexuals; (3) that Radoste's neighbor, David Garrett, did not see him when he claimed to or see him on crutches at any time; 12 and (4) that the crutch was used as a stage prop for the photograph. Kirkpatrick also claims that the prosecution tampered with witnesses by threats and coercion.
The absence of an evidentiary hearing in either the state or district court hampers our review of both the factual bases for Kirkpatrick's claims and their effect, if any, on the outcome of the trial. It is clear, however, from the affidavits of the first two officers on the scene that neither saw a bloody crutch next to Radoste's body or anywhere in Radoste's apartment. Moreover, they claim that Officer McKormick himself showed them a "stack of magazines that were filled with pictures of nude men." We focus on the evidence which was not available to Kirkpatrick on his first habeas petition.
Before considering the merits of Kirkpatrick's claims, we perforce consider whether the issues are properly before us. The prosecution claims that Kirkpatrick's failure to raise these claims in his first habeas petition constitutes abuse of the writ. Rule 9(b) governing cases brought under 28 U.S.C. § 2254 provides:
A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted abuse of the writ. 13
The Supreme Court's recent decision in McCleskey v. Zant 14 guides our analysis. In McCleskey the habeas petitioner complained of the admission of his statement to a cellmate. McCleskey alleged that the fellow prisoner was an agent of the state and that placing the agent in his cell violated his sixth amendment right to counsel as interpreted in Massiah v. United States. 15 He raised the claim in his first state habeas petition but omitted it from his first federal petition. It was not until his second federal habeas petition that McCleskey reurged the Massiah claim. The district court granted relief but the Eleventh Circuit reversed, finding error in the district court's failure to find an abuse of the writ.
On certiorari the Supreme Court affirmed, clarifying for the first time the standard to be employed to ascertain abuse of the writ. Under the regime announced in McCleskey, when there has not been a prior determination on the merits the government bears the initial burden...
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