Kurtzner v. Johnson

• Decision Date: 16 February 2001
• Docket Number: No. 00-20721,00-20721
• Citation: 242 F.3d 605
• Parties: (5th Cir. 2001) Richard William Kutzner, 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 605

242 F.3d 605 (5th Cir. 2001)

Richard William Kutzner, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 00-20721

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 16, 2001

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

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Richard Kutzner has filed a motion for a certificate of appealability (COA) in this 28 U.S.C. § 2254 capital habeas proceeding alleging two constitutional violations. For the reasons that follow, we deny his motion.

I.

Kutzner was convicted of capital murder and sentenced to death in Texas state court for the murder of Kathryn Harrison. The facts relating to Kutzner's offense and his subsequent conviction are as follows.

Harrison owned a real estate brokerage firm in Montgomery County, Texas. On January 22, 1996 Charles Divin, a broker at Harrison's firm, discovered Harrison's body in her office after returning from lunch. Harrison's hands had been bound with red plastic coated electrical wiring and her ankles bound with a plastic cable tie. She had been strangled by another plastic cable tie that was secured tightly around her neck. Harrison's purse had been emptied and turned upside down and a computer keyboard and a video cassette recorder were missing from her office.

Kutzner soon became a suspect in the investigation of Harrison's murder. Several plastic cable ties, a pair of tin snips, and red plastic coated electrical wiring were found in a search of Kutzner's truck. More plastic cable ties and red plastic coated electrical wiring were found in Kutzner's home. The wire found in Kutzner's truck, the wire found in his home, and the wire which had bound Harrison's wrists all bore the same identification number. The identification numbers showed that all the wire was of the same type and had all been manufactured by Rome Cable of Rome, New York.

Kutzner was arrested and subsequently indicted in the 395th Judicial District Court of Montgomery County, Texas for the capital offense of murdering Kathryn Harrison in the course of committing the offense of robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1995). Kutzner plead not guilty. In addition to the items noted above which had been found in Kutzner's possession, there was substantial other evidence to establish Kutzner's guilt.

Roy Landry, an associate of Kutzner's, testified that Kutzner had dropped off a video cassette recorder at Landry's home during the last week of January of 1996. The police recovered the video cassette recorder from Landry's home and identified it as the one missing from Harrison's office. Landry also testified that Kutzner had given him a computer keyboard at the same time, but that Kutzner had retrieved it about a week later with the intention of giving it to a woman who worked for Mike Covington. Covington testified that Kutzner brought him a computer keyboard during the latter part of January or the early part of February but that he then retrieved it about a week later. Lela Porch, who knew Kutzner through Covington, testified that Kutzner brought her a computer keyboard in early February of 1996. The police recovered the keyboard from Porch's home and identified it as the one missing from Harrison's office.

Landry also testified that Kutzner told him that he should rob an older woman who worked alone in an office. Landry asked why Kutzner did not do it himself, and Kutzner replied that the office was too close to his home. Other testimony established that Kutzner lived about a mile and a half from Harrison's office. Tommy McDonald, an employee of a local electrical products company, testified that Rome Cable's products were not common in the Montgomery County area. Dale Aikens, for whom Kutzner had worked for a time, testified that Kutzner had commented to him, on three separate occasions, that there were no serial numbers on plastic cable ties and that they would be good to use if one ever wanted to kill somebody. Finally, Michael Ennis, a forensic scientist with the Federal Bureau of Investigation, testified that the cable ties used to bind Harrison's ankles and to strangle her had been cut with the tin snips recovered from Kutzner's truck.

The jury convicted Kutzner of murder. During the punishment phase of the trial, the state presented evidence that Kutzner had served several years in prison in California for armed robbery in the 1960s, that he had been convicted of theft in Texas in 1984, and that he had been convicted of aggravated robbery four times in Texas in 1985. Finally, the state presented evidence that Kutzner had murdered Rita Sharon van Huss in Harris County under very similar circumstances just two weeks prior to his murdering Harrison. The jury returned affirmative answers to the statutory special issues submitted and the trial judge subsequently sentenced Kutzner to death.

The Texas Court of Criminal Appeals affirmed Kutzner's conviction and sentence on direct appeal. Kutzner v. State, 994 S.W.2d 180 (Tex. Crim. App. 1999). Kutzner did not seek a writ of certiorari from the United States Supreme Court. Kutzner applied for a writ of habeas corpus in state court on November 5, 1998. The state habeas court made extensive findings of fact and law and denied Kutzner's application. Ex Parte Kutzner, No. 97-08-01086-CR-(1) (395th Dist. Ct., Montgomery County, Tex. Mar. 4, 1999). The Texas Court of Criminal Appeals adopted the findings of the trial court and also denied Kutzner's application. Kutzner then applied for a writ of habeas corpus from the United States District Court for the Southern District of Texas on January 13, 2000. The district court denied the application and also denied Kutzner a COA. Kutzner v. Johnson, No. H-00-127 (S.D. Tex. July 19, 2000). Kutzner then filed the instant motion for a COA with this court.

II.

Because Kutzner filed his application for a writ of habeas corpus from the district court on January 13, 2000, his application is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). To obtain a COA, Kutzner must make, "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the district court has denied an application for a writ of habeas corpus on substantive grounds that means that Kutzner must show that, "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).

In deciding to grant a COA, we view a petitioner's application through the deferential scheme created by AEDPA. Barrientes v. Johnson, 221 F.3d 741, 771 (5th Cir. 2000). 28 U.S.C. § 2254(d) requires us to defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). A state court's decision will be contrary to clearly established federal law when it reaches a legal conclusion in direct opposition to a prior decision of the United States Supreme Court or when it reaches a different conclusion than the United States...