I. BACKGROUND AND PROCEDURAL HISTORY A Harris County grand jury returned an indictment against Napper in cause number 886346, charging him with aggravated kidnapping of a six-year-old child. The grand jury returned a separate indictment against Napper in cause number 886345, charging him withaggravated sexual assault of that same child. The State enhanced those indictments for purposes of punishment with allegations that Napper had at least two prior felony convictions for rape and aggravated rape. As a habitual offender, Napper faced a potential sentence of 25 years to life in prison if convicted of the charged offenses. A jury in the 182nd District Court of Harris County, Texas, found Napper guilty as charged. On November 9, 2001, the same jury found that the enhancement allegations were true and sentenced him to life imprisonment in both cases.1
On September 29, 2010, Napper filed a federal habeas corpus petition under 28 U.S.C. § 2254, seeking relief from his convictions for aggravated kidnapping and aggravated sexual assault of a child in cases 886345 and 886346 on the following grounds: (1) the State engaged in bad faith by destroying evidence in the form of genetic material, or DNA, in violation of Arizona v. Youngblood, 488 U.S. 51 (1994); (2) one of the State's witnesses (a chemist at the Houston Police Department Crime Lab) gave false testimony at trial; and (3) he was denied effective assistance of counsel at trial because his defense attorney did not hire a DNA expert or move for a continuance to conduct additional DNA testing of available evidence. As outlined further below, these claims were adjudicated on the merits on state habeas corpus review under Article 11.07 of the Texas Code of Criminal Procedure. In that proceeding, the Texas Court of Criminal Appeals concluded that all of Napper's claims were"without merit" and denied relief in a lengthy published opinion. See Ex parte Napper, 322 S.W.3d 202, 205 (Tex. Crim. App. 2010).
In adjudicating Napper's claims, the Texas Court of Criminal Appeals composed a detailed summary of the pretrial investigation, the evidence presented at trial, and subsequent evidentiary proceedings. This Court will not repeat the state court's findings in full.2 The following summary, however, is necessary to provide an overview of the proceedings that are pertinent to Napper's claims on federal habeas corpus review.
A. The Offense and Investigation Before summarizing the evidence presented at trial, the Texas Court of Criminal Appeals described the facts underlying the charges and the pretrial investigation, which included evidence of genetic material, or DNA, that was tested at the Houston Police Department ("HPD") Crime Lab:
A. Before Trial
On February 11, 2001, six-year-old "E.T." was kidnapped. One of E.T.'s friends was ten-year-old Remington Allen. While E.T.'s mother worked that day, Remington's grandmother cared for E.T., his nine-year-old brother "Junior," and his ten-year-old sister Denetta. Remington, Junior, and their friend Carlos went to a nearby park. Denetta and E.T. walked with them, but crossed the street to go to a store. Denetta went inside the store. E.T. may have accompanied her, but at some point he was outside again. WhileRemington, Junior, and Carlos played at the park, they saw a man drive up in a car and tell E.T. to "come here." Remington told E.T. not to get in the car.
The trial testimony of the children diverged somewhat at this point. Remington testified that the man got out of the car and acted like he was picking something up. Remington also testified that he saw the man hand E.T. some money when E.T. got into the car. However, on cross-examination, Remington agreed that he never saw the man. Junior testified that he saw the man inside the car and that the man had a mustache and was wearing sweats. On cross-examination, Junior agreed that he did not remember much about the car or the man inside the car because he did not see the man. Junior further testified that he did not know if the man ever got out of the car. E.T. testified that the man tried to get him to take money and then got out and put him in the car.
Remington, Junior, and E.T. all testified that the car sped away quickly once E.T. was in it. Junior and Remington chased the car. Remington picked up his scooter and threw it at the car, but the car did not stop. The children remained at the park for "a little bit" to see if the man would bring E.T. back. The children then went to "Momma Ruth's" place, which was close by, but no adults were home, so they went back up the street to Remington's grandmother's house. At first, Remington's grandmother did not believe the children's story about E.T. being kidnapped, but once she became convinced, she called the police.
At trial, Remington described the car as a "burgundy-like" Oldsmobile with a white top. When asked whether the wheels were shiny, he responded negatively. Junior testified that the car was dark green with a blue top, and scratches at the top. Both Remington and Junior testified that they had picked out a car in a videotape lineup, but they were not asked which car they picked.
Houston Police Officer D.D. Thompson was dispatched to the scene at 3:12 p.m. and arrived at 3:19 p.m. According to Officer Thompson, the children described the kidnapper's vehicle as an Oldsmobile—some said a Monte Carlo. He explained that the "children couldn't pinpoint exactly what make and model it was." The descriptions and the colors given by the children were not consistent. The car was variously described to him as a two-door or a four-door, as dark blue or dark green, with a rusty top or a black top or a vinyl top, and with chrome wheels. Officer Thompson dispatched a description that included model years from 1980 to 1990.
Sergeant Larry Hoffmaster testified that Junior described the car as a mid-sized gray car with chrome rims and with damage to the front around the headlights. Sergeant Hoffmaster further testified that the children were taken to a police sketch artist to make a composite drawing of the suspect. The general broadcast for the suspect indicated a "skinny black male," but Sergeant Hoffmaster acknowledged that [Napper] was not skinny. When asked if he developed any suspects whose vehicles were black or dark in color, Sergeant Hoffmaster said no.
E.T. was returned to the neighborhood the next day. He was crying, and his face was bruised and swollen. E.T., who is African–American, described his kidnapper as having skin color that was a little darker than his own. E.T. described the man as having no facial hair, wearing eyeglasses, wearing a black hat, and wearing a purple jacket with green (or a purple and green jacket) and matching purple pants. E.T. described the car as a dark navy blue in color, like his tennis shoes, with a brown interior, and with a black console between the front two seats.
E.T. related that the man offered him money, and when E.T. got closer, the man pulled him into the car. The kidnapper took E.T. to a house that had a brown couch in the front room and a television next to the bed in the bedroom. He tied E.T.'s arms and legs to the corners of the bed. E.T. also said that the man rubbed "orange grease" on his body. The man told E.T. that "if I tell anybody he's going to kill me." When asked if he had been touched inappropriately, E.T. "clammed up" and started "tearing up." When asked by another officer what happened after he was tied to the bed, E.T. became extremely upset, crying and breaking down into hysterics.
E.T. was taken to the hospital the day he was returned. Pursuant to instructions from Chemist Reidun Hilleman at the HPD Crime Lab, Officer Lorenzo Verbitskey swabbed E.T.'s face. Verbitskey let the resulting two swabs air dry in his office. He then delivered the swabs to Hilleman. Hilleman also received anal and oral swabs and clothing. Hilleman gave the swabs to Mary Childs-Henry, a forensic biologist at the HPD Crime Lab who analyzed body fluids and conducted serology testing. Childs-Henry extracted two tubes of DNA from each of the face swabs (four tubes in all). For each swab, one of the tubes contained a sperm fraction and the other tube contained an epithelial fraction of the genetic material. She then discarded the original swabs.
E.T. subsequently made an outcry to his aunt, Tangela Harding: E.T. described his kidnapper as wearing a baseball hat, wearing eyeglasses, and having a short haircut. The house had two rooms, and they went up some stairs to get into the house. The man said he was going to pull out his thing (Tangela understood E.T. to be referring to his penis) and wanted E.T. to put it in his mouth. When E.T. said no, the man started slapping him. So E.T. complied, his mouth started hurting, and the man "wet his face." This outcry was relayed to the police on February 14th. That same day, E.T. was taken to have two composite sketches done of his kidnapper—one with eyeglasses and one
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