Miller v. Dretke

• Decision Date: 24 March 2005
• Docket Number: No. 04-70009.,04-70009.
• Citation: 404 F.3d 908
• Parties: Donald Anthony MILLER, Petitioner-Appellee-Cross-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

404 F.3d 908

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

No. 04-70009.

United States Court of Appeals, Fifth Circuit.

March 24, 2005.

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Philip Harlan Hilder, James Gregory Rytting, Hilder & Associates, Houston, TX, for Donald Anthony Miller.

Kelli L. Weaver, Austin, TX, for Doug 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:

At issue is whether to grant a certificate of appealability (COA) to Donald Anthony Miller on any of three claims for habeas relief denied by the district court. See 28 U.S.C. §§ 2253, 2254. Miller was convicted in Texas state court of capital murder and sentenced to death. Federal habeas relief was conditionally granted by the district court on one claim, but only for sentencing: that, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the State violated due process by withholding exculpatory evidence (Brady-claim). For all claims for which it denied relief, including the same Brady-claim as applied to guilt/innocence, the district court denied, sua sponte, a COA.

The State appeals; Miller seeks a COA in order to cross-appeal. For the latter, the following COA requests are now at issue.

First, Miller claims the district court erred by limiting to sentencing the granted habeas relief on his Brady-claim. He maintains the same evidence-withholding also entitles him to relief for the guilt/innocence phase of his trial.

In addition, Miller makes two ineffective assistance of counsel claims. He maintains his trial counsel provided ineffective assistance, violative of the Sixth Amendment, by failing to object: (1) to a non-testifying co-conspirator's confession admitted through testimony of another; and (2) to the State's closing argument.

A COA is DENIED for each of the three issues. A subsequent opinion will address the State's appeal from the habeas relief granted for sentencing, pursuant to the Brady-claim.

I.

In early 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 Mozingo and Whitt to Lake Houston in Harris County, Texas, where they were murdered by Miller and Woods.

In October 1982, Miller was convicted for capital murder, and sentenced to death, for murdering 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, Woods had pleaded guilty to murder; Segura, to aggravated robbery. Woods was sentenced, before Miller's trial, to two life sentences. Segura was sentenced, after Miller's trial, 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. 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, Application No. 36140-01 (Tex.Crim.App.1998) (unpublished order).

In February 1999, Miller requested federal habeas relief, presenting five claims. Following an evidentiary hearing, the district court conditionally granted habeas relief for the Brady-claim, but only for the punishment phase. Miller v. Johnson, H-99-0405 at 24 (S.D. Tex. 2 February 2004) (USDC Opn.). For the other claims, including the Brady-claim as applied to guilt/innocence, the district court granted the State's summary judgment motion and denied, sua sponte, a COA for those claims. The district court stayed its judgment pending appeal.

II.

At issue is only the preliminary question of whether Miller can cross-appeal. For that purpose, three COA requests are at hand. The state appeals the conditional habeas relief and opposes Miller's COA requests. With this opinion, we consider — and deny — the COA requests. In a subsequent opinion, we will consider the remaining issue: the State's appeal from the relief granted for sentencing, based on the Brady-claim.

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). Under AEDPA, Miller may not appeal the denial of habeas relief on an issue unless he first obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA request before one can be requested here. In ruling on Miller's habeas petition, the district court denied, sua sponte, a COA for each issue for which it denied relief.

This COA requirement applies to the issue Miller has labeled only a cross-appeal, and for which he does not request a COA. Nevertheless, under Federal Rule of Appellate Procedure 4(a)(3), a notice of cross-appeal is treated as a notice of appeal; and, under Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal constitutes a COA request, if no separate request is filed. (The State correctly responds to the issue as a COA request.) Miller also seeks a COA on two ineffective assistance of counsel (IAC) claims, based on trial counsel's failing to object: (1) to introduction of a non-testifying co-conspirator's extra-judicial confession admitted through testimony of another; and (2) to the State's closing argument. (Miller's statement of the issues in his COA request identifies as a ground for COA the denial of his Sixth Amendment rights concerning the limited cross-examination of the key prosecution witness, Segura. Miller did not brief that issue. Instead, he briefed the second IAC claim listed above (which is not identified as a ground for COA in Miller's statement of issues). Accordingly we do not address the cross-examination issue.)

To obtain a COA, Miller must "make a substantial showing of the denial of a constitutional right". 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. In order to do so, Miller must demonstrate "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further". Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). In determining whether to grant a COA, we are limited, inter alia,"to a threshold inquiry into the underlying merit of [Miller's] claims". Id. at 327, 123 S.Ct. 1029. "This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims." Id. at 336, 123 S.Ct. 1029. Instead, our analysis "requires an overview of the claims in the habeas petition and a general assessment of their merits". Id. This being a death penalty case, "any doubts as to whether a COA should issue must be resolved in [Miller's] favor". Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 966, 121 S.Ct. 400, 148 L.Ed.2d 308 (2000).

For purposes of the requisite threshold-inquiry, we are mindful that, in ruling on the merits, the district court was required to defer to the state court's adjudication of Miller's claims on both 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). A state court's decision is contrary to clearly established federal law if it "reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts". Miniel v. Cockrell, 339 F.3d 331, 337 (5th Cir.2003), cert. denied, 540 U.S. 1179, 124 S.Ct. 1413, 158 L.Ed.2d 81 (2004).

Likewise, for this threshold-merits-inquiry, we are mindful that, in ruling on the merits, the district court was required to defer to the state court's 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). The state court's factual findings are "presumed to be correct", and Miller has "the burden of rebutting the presumption of correctness by clear and convincing evidence". 28 U.S.C. § 2254(e)(1).

Finally, for our COA threshold-merits-inquiry, we must consider the elements, discussed infra, for the underlying Brady and IAC claims. Obviously, the COA requests must be considered against the backdrop of those elements.

A.

Miller's Brady-claim was not raised in state court. Following an evidentiary hearing, the district court ruled the claim was not procedurally barred because the cause and prejudice exception was satisfied; the suppressed...