Miller v. Dretke

• Decision Date: 15 November 2005
• Docket Number: No. 04-70009.,04-70009.
• Citation: 431 F.3d 241
• Parties: Donald Anthony MILLER, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 241

431 F.3d 241

Donald Anthony MILLER, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 04-70009.

United States Court of Appeals, Fifth Circuit.

November 15, 2005.

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Philip Harlan Hilder, James Gregory Rytting (argued), Hilder & Associates, Houston, TX, for Miller.

Kelli L. Weaver (argued), Austin, TX, for Dretke.

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

Before BARKSDALE, GARZA and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In 1982, Donald Anthony Miller was convicted in Texas state court of capital murder and sentenced to death. In 2004, federal habeas relief was conditionally granted for sentencing, the district court concluding that the State violated due process by withholding evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (due process violation for prosecution to suppress favorable material evidence) (Brady-claim). It denied relief for the other claims, including the same Brady-claim as applied to guilt/innocence. For those claims, a certificate of appealability (COA) was denied by the district court.

The State appealed. Seeking leave to cross-appeal, Miller requested a COA from this court on three claims; it was denied. Miller v. Dretke, 404 F.3d 908 (5th Cir.2005).

Therefore, at issue is the State's appeal from the conditional relief on sentencing. Any suppressed evidence was not material for sentencing. JUDGMENT VACATED; RELIEF DENIED.

I.

(The following is in large part a repetition of the facts in our first opinion. Id. at 911-12.) On 2 February 1982, Michael Mozingo and Kenneth Whitt, traveling furniture salesmen, were approached by Miller, Eddie Segura, and Danny Woods, who feigned interest in purchasing furniture. After Mozingo and Whitt were lured to Segura's house to deliver the furniture, they were robbed, bound, and gagged. Miller, Segura, and Woods drove Michael Mozingo and Kenneth Whitt to Lake Houston in Harris County, Texas, where, with their hands tied, they were murdered by Miller, with a handgun, and Woods, with a shotgun.

In October 1982, Miller was convicted for capital murder, and sentenced to death, for murdering Michael Mozingo while in the course of committing, and attempting to commit, aggravated robbery. Segura testified against Miller; Woods did not testify. (Before Miller's trial, Segura pleaded guilty to aggravated robbery; Woods, to murder, receiving two life sentences. Post-trial, Segura was sentenced to 25 years in prison.)

The Texas Court of Criminal Appeals affirmed. Miller v. State, 741 S.W.2d 382 (Tex.Crim.App.1987) (en banc). The Supreme Court denied a writ of certiorari. Miller v. Texas, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988).

Miller requested state habeas relief, presenting numerous claims, but not the pending Brady-claim. The state district court entered findings of fact and conclusions of law and recommended denial of relief on each claim. Ex Parte Miller, No. 350303-A (232d Dist. Ct., Harris County, Tex. 7 May 1997). The Court of Criminal Appeals adopted those findings and conclusions and denied relief. Ex Parte Miller, No. 36140-01 (Tex.Crim.App.1998) (unpublished order).

In February 1999, Miller requested federal habeas relief, raising five claims, including a Brady-claim presented for the first time. Following an evidentiary hearing in September 2002, the district court ruled in February 2004 that the Brady-claim was not procedurally barred and conditionally granted habeas relief for it, but only for sentencing. Miller v. Johnson, H-99-0405, slip op. at 24 (S.D.Tex. 2 February 2004) (USDC Opn.). For the other claims, including the Brady-claim for guilt/innocence, the district court awarded the State summary judgment and denied, sua sponte, a COA for those claims. The court stayed its judgment pending appeal. In short, 22 years passed between the murders and federal habeas relief being granted.

Following our denial of a COA for Miller, Miller, 404 F.3d at 920-21, oral argument was held on the State's appeal from the conditional habeas relief. At argument, we ordered supplemental briefing on the State's failure to exhaust claim.

II.

The State maintains the district court erred by: (1) considering Miller's Brady-claim, because it was not exhausted in state court; and (2) in the alternative, granting relief on that claim for his sentence.

Miller's 28 U.S.C. § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Generally, a district court is required by AEDPA to defer to the state court's: (1) adjudication of claims on questions of law and mixed questions of law and fact, unless the state court's "decision ... was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court...." 28 U.S.C. § 2254(d); see Hill v. Johnson, 210 F.3d 481, 488 (5th Cir.2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001); and (2) factual findings unless they "resulted in a decision that was based on an unreasonable determination of the facts in [the] light of the evidence presented in the State court proceeding". 28 U.S.C. § 2254(d)(2). Concerning the latter point, the state court's factual findings are "presumed to be correct"; the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence". 28 U.S.C. § 2254(e)(1).

Obviously, because Miller's Brady-claim was not presented in state court, such AEDPA deference does not apply in this instance. The district court's findings of fact are reviewed for clear error; its rulings of law, de novo. E.g., Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir.1999).

A.

Claims not raised in state court usually cannot be considered on federal-habeas because they are not exhausted. See 28 U.S.C. § 2254(b)(1)(A). A federal court may consider an otherwise defaulted claim, however, on a showing of either cause for the default and prejudice or actual innocence. Bousley v. United States, 523 U.S. 614, 622-23, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). (Miller did not attempt to demonstrate actual innocence.)

Following an evidentiary hearing, the district court ruled Miller's Brady-claim was not barred because the cause-and-prejudice exception was satisfied: the suppressed evidence was not reasonably available to Miller; and the suppression prejudiced him for sentencing. USDC Opn. at 20, 24. "Whether a federal habeas petitioner has exhausted state remedies is a question of law." Wilder v. Cockrell,, 274 F.3d 255, 259 (5th Cir. 2001).

For its non-exhaustion claim, the State maintains the district court erred in concluding there is no available state corrective process for Miller's claim and in failing to dismiss the claim without prejudice to allow him to pursue a successive state habeas application. On a related point, the State notes that the district court is barred by AEDPA from granting, but not denying, habeas relief on non-exhausted claims. See 28 U.S.C. § 2254(b)(1)(A).

Miller urges the State should be estopped from now asserting his claim is not procedurally barred in state court because it took the opposite position in earlier proceedings in district court. Miller maintains the State seeks to gain an unfair advantage if the claim is returned to state court because, if he is denied relief there, the state court decision will be subject to the above-discussed AEDPA deference.

As noted, under § 2254(b)(2) we can deny (but not grant) Miller's non-exhausted claim. Because we hold Miller is not entitled to habeas relief on the Brady-claim, we need not decide whether the district court erred in considering it.

B.

"[T]he Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense." Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (addressing factors underlying when suppressed evidence is material for Brady-claim purposes and manner by which such evidence is to be considered). Therefore, the well-known elements for a Brady-claim are: (1) the prosecutor suppressed evidence, (2) favorable to the defense, (3) and material to guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. 1194. (Accordingly, "the good faith or bad faith of the prosecution" is not an element. Id.)

Evidence is material if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different". United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (emphasis added). This reasonable-probability standard is met if the suppression is significant enough to undermine confidence in the outcome of the trial. Kyles, 514 U.S. at 433-34, 115 S.Ct. 1555.

In determining whether evidence is material for Brady purposes, we must consider the cumulative effect of all suppressed evidence, rather than ruling on each item individually. Id. at 436-37, 115 S.Ct. 1555. The district court's rulings on materiality are reviewed de novo, because they involve mixed questions of law and fact. See Felder v. Johnson, 180 F.3d 206, 212 (5th Cir.), cert. denied, 528 U.S. 1067, 120 S.Ct. 630, 145 L.Ed.2d 520 (1999); Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir.), cert. denied, 527 U.S. 1056, 120 S.Ct. 22, 144 L.Ed.2d 825 (1999).

The murders occurred in February 1982; Miller was convicted that October. During a pre-trial motion, the prosecutor claimed Brady did not require his disclosing impeachment evidence, but only evidence exculpatory to Miller's guilt. The trial court did not require disclosure of additional...