Kunkle v. Dretke

• Decision Date: 09 December 2003
• Docket Number: No. 02-41571.,02-41571.
• Citation: 352 F.3d 980
• Parties: Troy KUNKLE, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

352 F.3d 980

Troy KUNKLE, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 02-41571.

United States Court of Appeals, Fifth Circuit.

Filed December 9, 2003.

Revised December 23, 2003.

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Robert Lee McGlasson, II (argued), Decatur, GA, Danalynn Recer, Loiusiana Crisis Assistance Ctr., New Orleans, LA, for Petitioner-Appellant.

Edward Larry Marshall (argued), Austin, TX, for Respondent-Appellee.

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

Before HIGGINBOTHAM, DAVIS, and JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner, Troy Kunkle (Kunkle), was convicted of capital murder in Texas and sentenced to death. He now seeks a Certificate of Appealability (COA) from the district court's denial of habeas corpus relief. We grant Kunkle's request for a COA on his claim of ineffective assistance of counsel. After examining the merits of this claim, we conclude that the district court did not err in finding it was unexhausted. We also conclude that the Kunkle failed to demonstrate that he suffered prejudice from counsel's performance. With respect to Kunkle's remaining claims, we deny his application for COA because he has failed to make a substantial showing of a denial of a constitutional right.

I.

On the night of August 11, 1984, Kunkle and his girlfriend Lora Lee Zaiontz, Russell Stanley, Aaron Adkins, and Tom Sauls, left San Antonio and drove to Corpus Christi. All five were under the influence of alcohol and L.S.D. While en route, Stanley removed a .22 caliber pistol from the glove compartment of the vehicle, fired it into the air, and asked Adkins if he wanted to make some money. Sauls told Stanley that "guns and acid don't mix," and Stanley returned the gun to the glove compartment. During the course of the trip, Stanley took out the gun several more times. Stanley and Adkins discussed committing a robbery and slowed the vehicle several times to assess potential victims.

When the group arrived in Corpus Christi, they drove to the beach. Kunkle and Zaiontz kept to themselves. Stanley, Adkins and Sauls went for a walk, and Stanley and Adkins again discussed robbing someone. The group left the beach and went to a convenience store to buy beer. There, Stanley and Adkins robbed a man in a phone booth at gunpoint, while Kunkle, Zaiontz, and Sauls remained in the car. Stanley and Adkins obtained only seven dollars from this victim, so they left the store to search for another victim. They spotted Stephen Horton walking along the road. They pulled up next to Horton, and Zaiontz asked him if he needed a ride. Though he resisted at first, Horton was eventually persuaded to get into the car. Horton sat in the front seat, next to Zaiontz.

Once inside the car, Stanley put the gun to the back of Horton's head and told him to give them his wallet. Horton turned to look at Stanley, but Zaiontz scratched his face and told him to look forward. Kunkle told Stanley to kill him, but Stanley refused. Kunkle then took the gun from Stanley, put it to Horton's head, and said, "We're going to take you back here and blow your brains out." Adkins drove the car behind a skating rink, and Kunkle shot Horton in the back of the head. They pushed his body out of the car, and Zaiontz took his wallet. After the shooting, Kunkle quoted the following line from a song: "another day, another death, another sorrow, another breath," and told the group that the murder was "beautiful."

On February 22, 1985, a jury convicted Kunkle for the capital murder of Horton. He was sentenced to death on February 26, 1985. Kunkle's conviction and sentence were affirmed on direct appeal. Kunkle v. State, 771 S.W.2d 435 (Tex. Crim.App.1986). The Supreme Court denied certiorari. Kunkle v. Texas, 492 U.S. 925, 109 S.Ct. 3259, 106 L.Ed.2d 604 (1989).

Kunkle filed a state habeas petition in July 1989. After hearing argument from counsel, the state habeas judge determined that an evidentiary hearing was not necessary, and recommended the denial of habeas relief. The Court of Criminal Appeals accepted the recommendation and denied relief. Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App.1993).

In August 1993, Kunkle filed his first federal habeas petition pro se. He was later appointed counsel who then filed an amended petition in March 1994. In January 1995, this petition was dismissed without prejudice for failure to exhaust some of the claims in state court, and the case was closed. Kunkle filed another state habeas petition asserting the claims the district court specified as unexhausted. This petition was denied.

In April 1995, Kunkle filed an amended petition in federal court. However, he filed it under the old case number instead of initiating a new suit. No action was taken on this petition for several years. In July 2001, an order was issued under a new case number indicating that the amended petition would be treated as a new petition, filed in April 1995, and ordering the clerk of court to file a copy of the petition under the new case number. The State filed its response and moved for summary judgment. In September 2002, the federal district court denied habeas relief and refused to issue a COA. Kunkle now seeks a COA from this court.

II.

Kunkle filed the instant Section 2254 petition in April 1995, before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). As such, this court must apply pre-ADEPA law in reviewing the district court's ruling. Slack v. McDaniel, 529 U.S. 473, 480, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000). However, where an appeal from a denial of a petition of habeas corpus is commenced after the effective date of the AEDPA, post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle's right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate "reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack, 529 U.S. at 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). The question of whether a COA should issue is a threshold inquiry that "requires an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El, 123 S.Ct. at 1039. A full consideration of the merits is not required, nor permitted, by § 2253(c). Id. The fact that a COA should issue does not mean that the petitioner will be entitled to habeas relief because the "question is the debatability of the underlying constitutional claim, not the resolution of that debate." Id. at 1042.

Under pre-AEDPA standards of review, this court will review the legal conclusions of the district court de novo and the state court's findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002) (en banc). This court must accord a presumption of correctness to all findings of fact if they are supported by the record. Id.; see 28 U.S.C. § 2254(d) (1995) (current version at 28 U.S.C. § 2254(e)(1) (2003)). The pre-AEDPA standards do not require a federal court to defer to the state court's legal conclusions. See Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir.2001) (citing Thompson v. Keohane, 516 U.S. 99, 111-12, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)).

III.

Kunkle first argues that his due process rights were violated because the trial court ordered only a partial transcript of the voir dire. On direct appeal, the only error asserted by Kunkle was that the trial court improperly denied his motion challenging the State's death qualifying questions in jury selection. For the purpose of appellate review, Kunkle's trial counsel, who also represented Kunkle on direct review, requested the entire voir dire examination of the jury panel be transcribed. The trial court denied this request, instead ordering that the transcription be limited to the general statements and questions of the trial court and the parties and the individual voir dire of six potential jurors. The trial court did, however, state that other portions of the voir dire would be transcribed "for good cause shown."

Kunkle contends that the Constitution requires the State to provide an indigent defendant with a complete transcript of voir dire, free of charge. In Griffin v. Illinois, 351 U.S. 12, 19-20, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court held that the Due Process and Equal Protection clauses of the Fourteenth Amendment require that states provide indigent defendants with a trial transcript free of charge when it is necessary for meaningful appellate review. However, the state is not "obligated to automatically supply a complete verbatim transcript," Moore v. Wainwright, 633 F.2d 406, 408 (5th Cir.1980), and a State need not waste its funds providing for free those parts of the transcript that are not "germane to consideration of the appeal." Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). "[N]or is the state required to furnish complete transcripts so that the defendants ... may conduct `fishing expeditions' to seek out ...