Prystash v. Davis

• Citation: 854 F.3d 830
• Decision Date: 26 April 2017
• Docket Number: No. 16-70014,16-70014
• Parties: Joseph Andrew PRYSTASH, Petitioner–Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

854 F.3d 830

Joseph Andrew PRYSTASH, Petitioner–Appellant
v.
Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee

No. 16-70014

United States Court of Appeals, Fifth Circuit.

FILED April 26, 2017

David R. Dow, Jeffrey R. Newberry, University of Houston, Law Center, Houston, TX, for Petitioner–Appellant.

Travis Golden Bragg, Assistant Attorney General, Office of the Attorney General for the State of Texas, Ellen Stewart–Klein, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent–Appellee.

Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Two decades after being sentenced to death for being the middleman in a murder-for-hire, Joseph Andrew Prystash seeks a certificate of appealability to appeal the district court's denial of his petition for a writ of habeas corpus. He asks us to certify the following questions: (1) whether there was cause for the procedural default of his Batson claim; (2) whether the State's withholding of evidence about the involuntariness of a codefendant's confession established a Brady violation; (3) whether the trial court violated his right to present mitigation evidence at sentencing when it limited expert testimony; (4) whether the introduction of evidence of unadjudicated offenses at sentencing violated the Eighth Amendment; and (5) whether the state court's application of the invited error doctrine was not an adequate procedural bar against his claim that he was unconstitutionally sentenced to death without an anti-parties jury instruction.

I.

A.

In November 1994, Farah Fratta was shot and killed exiting a vehicle in her garage. Suspicion immediately focused on her husband, Robert Fratta, who was a local police officer. The Frattas had been involved in a contentious divorce, with a child custody hearing set for the end of that month. The night of the murder, Robert Fratta was at church with his children. Phone records and witness testimony showed that, while at church that evening, he made several calls to a mobile phone number belonging to Mary Gipp. Gipp was the girlfriend of petitioner Joseph Prystash.

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Detective George Roberts later interviewed Gipp. She recounted Prystash saying he had been hired by Robert to kill Farah and that he had then made a deal with Howard Guidry to shoot Farah. By this time, Guidry was in jail on another charge. Roberts and another detective, Jim Hoffman, then questioned Guidry about the murder. See Guidry v. Dretke , 429 F.3d 154, 155 (5th Cir. 2005). When Guidry requested an attorney, they ceased questioning him, but later returned and lied to him. They said that his attorney had given permission for him to speak with them. Id. In response to this falsehood, Guidry confessed to shooting Farah and described how he had been hired by Robert, through Prystash, to commit the crime. Id. In Guidry's federal habeas case, we held that the police obtained his confession unlawfully and vacated his conviction. Id. at 157.

Using a warrant acquired with an affidavit by Sergeant Danny Billingsley describing Gipp's statements and Guidry's confession, the police arrested Prystash. They then questioned him about the killing. After Prystash disclaimed all knowledge and responsibility, the officers released him from custody.

Billingsley drove Prystash back to his car. On the way, Prystash confessed that he had received a gun and instructions from Robert, solicited Guidry to shoot Farah, and drove Guidry to and from Farah's home. Billingsley told Prystash to come to the police station the next day so he could give a formal statement, and when he did not appear, the police arrested him again. While in custody, he signed a written statement admitting to participating in Farah's murder.

B.

Prystash's trial began in the summer of 1996. During voir dire, the State used its peremptory strikes to remove all five of the black venire members who were questioned. Prystash's counsel objected that "every black panelist was struck" from the venire. Counsel said, "especially we are calling to the Court's attention of the strike of juror Ms. Merchant...." That resulted in a Batson inquiry for the Merchant strike during which the court asked the prosecutor to provide a race neutral justification for that strike. The court credited the prosecutor's explanation. Defense counsel did not ask for that process for the other four struck black jurors. When the court asked defense counsel if there was anything else that needed to be done for the record, the answer was, "I don't think so."

During the trial, the prosecution introduced Prystash's written confession. In addition, Billingsley testified to the incriminating statements made by Prystash while he was driving him home.

Gipp also testified. She described discussions about killing Farah between Prystash and Robert Fratta in the months leading up to the murder. She also stated that Robert gave Prystash a gun. Gipp explained that Prystash had told her about how the killing would take place, about hiring Guidry, and what rewards he and Guidry would receive. Gipp further incriminated Prystash by testifying that he and Guidry left home on the night of the killing dressed in black. She said that Prystash returned a few hours later and emptied the cartridges from a gun, telling her that Farah had been killed and describing how the men had carried out the shooting. According to Gipp, Prystash then left home again to meet Fratta.

In addition to Prystash's statements and Gipp's testimony, the jury also heard Guidry's confession. While cross-examining Detective Roberts about Prystash's arrest, Prystash's trial counsel introduced the warrant for his arrest into evidence in

854 F.3d 834

order to show that the detective had not complied with its order to bring him before the issuing judge but instead had held and questioned him irregularly¹ before releasing him with Billingsley. Later, while questioning Billingsley about the circumstances of the arrest, the State asked him to read from the affidavit supporting the warrant, which recounted at length Guidry's confession implicating Prystash.

The jury convicted Prystash of capital murder. During the sentencing phase that followed, the State introduced evidence of Prystash's extensive criminal record, including an arrest for attempted murder. It also offered evidence of his bad character. Two of his ex-wives testified that he was remorseless, selfish, angry, manipulative, and lacked compunctions of conscience. In response, the defense offered the testimony of family members who described Prystash's harsh upbringing, including his mother's alcoholism. The defense also called two volunteer religious leaders who worked with Prystash while he was in Harris County jail. They agreed that Prystash was not a danger to others and spoke of his honesty and piety.

Lastly, the defense called psychologist Walter Quijano. Quijano testified that Prystash would not be a continuing threat to guards or inmates if sent to prison. The defense wanted Quijano to testify about how Prystash would be classified and grouped with other inmates while incarcerated, but the trial court prohibited the defense from eliciting that testimony before the jury because it found it was speculative.

The jury sentenced Prystash to death.

C.

Prystash appealed to the Texas Court of Criminal Appeals. Among other things, he argued that the trial court had erred by not submitting to the jury a statutory special issue at sentencing on the responsibility of one found guilty of capital murder as a party to the crime rather than as the shooter. See Prystash v. State , 3 S.W.3d 522, 530–32 (Tex. Crim. App. 1999). At trial Prystash had asked that the instruction not be given, but the Court of Criminal Appeals had previously held that the doctrine of invited error, which generally holds that a party cannot complain of trial errors it induced, could not excuse omission of a similar special issue instruction. Id. at 529–32 (discussing Powell v. State , 897 S.W.2d 307 (Tex. Crim. App. 1994) ). In Prystash's case, the court overruled itself, rejecting the challenge to the omission using the invited error doctrine. Id. at 532.

After losing his direct appeal, Prystash sought postconviction relief in the Texas courts. After that proved unsuccessful, he filed his federal petition. The district court recognized that some of his claims had not been raised in state court. It thus stayed the federal proceedings so that Prystash could remedy this problem with a new state habeas petition. Because this was a successive petition, the Court of Criminal Appeals only allowed one of Prystash's claims, corresponding to his present Brady claim, to proceed. Ex parte Prystash , 2008 WL 5245551, at *1 (Tex. Crim. App. Dec. 17, 2008). That claim, which alleged that the State suppressed evidence about the unlawfulness of Guidry's confession, was rejected on the merits as discussed further below.

Prystash then returned to federal court, where he unsuccessfully prosecuted his amended petition. The district court analyzed

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