Little v. Johnson

• Decision Date: 10 December 1998
• Docket Number: No. 98-40240,98-40240
• Citation: 162 F.3d 855
• Parties: William Hamilton LITTLE, 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 855

162 F.3d 855

William Hamilton LITTLE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 98-40240.

United States Court of Appeals,

Fifth Circuit.

Dec. 10, 1998.

Roxanne Jensen, Karen Howard, Morrison & Foerster, Denver, CO, for Petitioner-Appellant.

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

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

Before JONES, SMITH and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

William Hamilton Little was tried and convicted of capital murder by a Texas jury on April 5, 1985. Having exhausted his state court remedies, Little unsuccessfully sought federal habeas relief in the district court pursuant to 28 U.S.C. § 2254. Little's primary contention in this petition, among several asserted, concerns the trial court's failure to introduce the "confession" of another man who claimed to have committed the murder to which Little also confessed. Finding no basis for the issuance of a certificate of probable cause ("CPC"), this court denies Little's 28 U.S.C. § 2253 motion.

I. INTRODUCTION

In the early morning hours of December 3, 1983, Marilyn Peter was sexually assaulted, strangled, and brutally stabbed at her residence in Liberty County, Texas. That same morning, a man meeting Little's general description was seen in the doorway of Peter's home.

Later that day, when appliance repairmen came to Peter's home to install her clothes dryer, they found blood on the doorjamb and heard a baby crying. The repairmen entered the home to find Peter's two-year-old child crying on the kitchen counter. The kitchen and living room were covered with blood. Marilyn Peter lay dead in the living room, her body ravaged by multiple stab wounds.

Two men confessed to the murder of Marilyn Peter. On December 4, 1983, Michael Raymond Thomas confessed to the murder while interviewing with Officers John Stapleton and Robert Dunn. On December 6, 1983, following his arrest on a parole violation, Little also confessed to the murder. The two were indicted separately on February 8, 1984.

A. Little's Trial

The indictment against Thomas was ultimately dismissed, and Little stood trial for the slaying. During the course of his trial, Little's counsel offered Thomas's confession into evidence for "state of mind," but not for the truth of the matter asserted. The trial judge rejected the proffer as hearsay. Near the close of Little's case-in-chief, the Thomas confession was offered again. During a hearing on the admissibility of the confession, the trial court heard evidence bearing on the reliability of the confession. Although Thomas was called to testify, he invoked his Fifth Amendment rights. At the close of the hearing, the trial court sustained the State's hearsay objection again.

Two other events that occurred during Little's trial are germane to this appeal. First, the prosecutor made several allegedly improper statements during the course of his closing argument. ¹ Little's trial counsel chose not to object to the statements. Second, Dr. James Grigson testified during the sentencing portion of Little's trial. While Little's trial counsel did cross-examine Dr. Grigson, no rebuttal psychiatric testimony was offered.

B. Little's Direct and Collateral Attacks

Little was convicted of the murder of Marilyn Peter and sentenced to death. On direct appeal, Little challenged several aspects of the voir dire, alleged the evidence was insufficient to support his conviction, and maintained that his confession and certain other evidence were obtained in violation of his constitutional rights. See Little v. State, 758 S.W.2d 551, 552 (Tex.Crim.App.1988). ² Little's conviction and sentence were affirmed. See id. at 567.

In his state habeas petition, Little finally asserted many of the arguments he now presses upon this court. Little alleged, inter alia, that Thomas's confession was improperly excluded, that the State suppressed or destroyed exculpatory evidence, that the performance of Little's trial counsel was deficient, and that Dr. Grigson's testimony was improperly admitted. Adopting the voluminous findings of the state district court, the Texas Court of Criminal Appeals denied Little's petition.

C. Little's 28 U.S.C. § 2254 Petition

In 1989, Little filed the federal habeas petition underlying the present appeal. Following an evidentiary hearing covering the reliability of Thomas's confession and certain of Little's ineffective assistance claims, the magistrate judge entered findings of fact, conclusions of law, and a recommendation rejecting each of the petitioner's claims. The district court adopted the report and recommendation and denied Little's motion for a CPC. Pursuant to 28 U.S.C. § 2253(c), Little now requests that this court grant his application for a CPC and review his petition on the merits.

II. ANALYSIS AND DISCUSSION

A. Standard for CPC Issuance

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

Because Little's habeas request predates passage of the Antiterrorism and Effective Death Penalty Act, the issuance of a CPC is a jurisdictional prerequisite to appellate review of his habeas petition. See Washington v. Johnson, 90 F.3d 945, 949 (5th Cir.1996); see also Fed. R.App. P. 22(b). To obtain a CPC, a petitioner must "make a substantial showing of the denial of a federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotations and citations omitted). A petitioner can meet this burden by demonstrating that "the issues [presented] 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." Id. at 893 n. 4, 103 S.Ct. at 3394-95 n. 4 (internal quotations, emphasis, and citations omitted). The nature of the penalty in a capital case is a "proper consideration in determining whether to issue a [CPC], but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate." Id. at 893, 103 S.Ct. at 3394-95. With these standards in mind, the court will now address each of Little's contentions in turn.

B. Improper Exclusion of Thomas's Confession

Little maintains that the trial court's exclusion of Thomas's confession violated the due process clause of the Fourteenth Amendment. Little's due process claim rests on two separate, but related, theories. First, Little contends that the trial court's failure to conduct an evidentiary hearing regarding the reliability of Thomas's confession violated due process, citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). Next, Little argues that the exclusion of the Thomas confession violated due process. Both arguments prove unavailing.

Little has procedurally defaulted on his first due process theory. When the ground upon which the petitioner relies for habeas relief was not exhausted in state court and state procedural rules would bar subsequent presentation of the argument, this court may not consider the claim absent "cause" and "prejudice", neither of which exceptions is argued here. See Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998); Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir.1997). The issue of reliability of Thomas's confession was not raised at trial. Further, in state habeas proceedings, Little did not argue that the trial court's failure to conduct an evidentiary hearing violated due process. He asserted instead only that the exclusion of the confession amounted to an unconstitutional deprivation of due process. Therefore, under Tex. Code Crim. P. Ann. art. 11.071 § 5(a), Little would not be permitted to pursue habeas relief on this theory in a successive state petition. Absent proof of cause and prejudice or a miscarriage of justice ³--showings the petitioner does not make--Little is barred procedurally from pursuing his argument that the trial court should have conducted a hearing regarding the reliability of Thomas's confession.

Even if Little's claim regarding the alleged lack of an evidentiary hearing were not procedurally barred, Chambers and Green neither embody the constitutionally mandated hearing proposed by Little nor demand the admission of Thomas's confession. In Montana v. Egelhoff, the Supreme Court explained,

[T]he holding of Chambers--if one can be discerned from such a fact-intensive case--is certainly not that a defendant is denied "a fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.

518 U.S. 37, 53, 116 S.Ct. 2013, 2022, 135 L.Ed.2d 361 (1996). Indeed, even the Chambers Court placed limits on the consequences of its holding:

In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.

410 U.S. at 302-03, 93 S.Ct. at 1049 (emphasis added). Thus, as this court has twice recognized, Chambers and Green stand for the limited proposition that "certain egregious evidentiary errors may be redressed by the due process clause." Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir.1983) ("We think that Green is limited to its facts ...."); see also Maness v. Wainwright, 512 F.2d 88,...