Rector v. Johnson

Decision Date18 August 1997
Docket NumberNo. 96-50443,96-50443
Citation120 F.3d 551
PartiesCharles RECTOR, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Roy E. Greenwood, Jr., Austin, TX, for Petitioner-Appellant.

Meredith Anne Martinez, Assistant Attorney General, Austin, TX, for Respondent-Appellee.

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

Before JOLLY, JONES and STEWART, Circuit Judges.

STEWART, Circuit Judge:

In 1982, Charles Rector was convicted for the murder of Carolyn Kay Davis. For that, Rector was sentenced to die. Rector's conviction and sentence were affirmed by the Texas Court of Criminal Appeals, and the United States Supreme Court denied certiorari. Rector then sought and was denied state habeas relief. In a fifty-four page order,

a federal magistrate judge denied Rector federal habeas relief; the district court adopted the magistrate's report and recommendation over Rector's objections. The district court also refused to grant Rector a Certificate of Probable Cause (CPC). Rector now seeks a Certificate of Appealability (COA) or CPC from us. Construing Rector's appeal as a request for a CPC, we decline to issue a CPC and affirm Rector's conviction and sentence of death.

BACKGROUND
The Abduction

Mark Arnold and Carolyn Kay Davis shared apartment number 204 of the La Paz apartments located in Austin, Texas. On the evening of October 17, 1981, Arnold and Davis went grocery shopping; they took separate cars because Davis had to stop off at a bank on the way home from the grocery store. That night, Davis had on size 6 Calvin Klein blue jeans, a long-sleeved shirt, a gold chain with a cross, and a high school ring. At about 8:45 p.m., Arnold (who was following Davis) saw Davis turn down a street headed to their La Paz apartment. Arnold would never see Davis alive again.

Arnold returned to the apartment at approximately 9:15 p.m., only to find the door unlocked, the lights on, and a bag of groceries overturned on the couch. Arnold searched for Davis. In the parking lot, he found Davis's car locked, with the interior lights on and a sack of groceries still inside. Arnold then returned to the apartment, went into the bedroom, and found the window and curtains open and the screen smashed through. Arnold found a Schrade knife that did not belong to him or Davis on the floor underneath the window. Two of Arnold's rifles were also missing, and the closet and bedroom had been ransacked. Arnold testified that his gym bag, which contained a strain gauge used in engineering research, was missing. At that point, Arnold called police and continued looking for Davis.

Davis's abduction did not occur silently. Two witnesses who lived next door to Davis testified that on the evening of October 17, they were in the living room of their apartment when at approximately 9 p.m., they heard a woman's short, startled scream. They then heard the shuffle of feet and a door slam. The witnesses went outside their apartment and saw nothing unusual. Ten minutes after returning to their apartment, Arnold came to their apartment in search of Davis.

The neighbor in the other adjoining apartment also testified that at about 9 p.m. on October 17, he was sitting in his apartment when he heard voices coming down the hallway. One person asked, "Where is it?" and another person responded, "It's 204." The witness heard the voices pass his door and window. The witness then looked out the window and saw three black men standing in front of Davis's apartment. One of three men was wearing overalls, but the witness could not see their faces. The witness watched the three men for approximately thirty seconds and then returned to his chair in his apartment. The witness testified that shortly after returning to his chair, he heard a slam, a brief scream, and a sound like someone diving in a pool. The witness then looked out the window again, but saw nothing. The witness came out of his apartment about thirty minutes later, when he heard a policeman's walkie-talkie.

The Investigation Leading up to Rector's Arrest

A fingerprint technician from the Austin Police Department arrived at Davis's apartment at approximately 9:35 p.m. to process the fingerprints that may have been in the apartment. Investigating police also came to the apartment. At about 11 p.m., the investigating police left the scene. The fingerprint technician, however, was still in the process of packing up his gear when he heard (the door to the apartment was open) footsteps coming up the landing toward Davis's apartment. He looked out the door, saw two black men walking quickly, and radioed for officers to look for the two men. Davis's stepfather, who was also in the apartment at that time, gave chase.

Another resident of the apartment complex testified that at about 11:15 p.m., she saw Rector jogging through the apartment complex. Rector asked, "Did you see two other Officer William Matthews of the Austin Police Department testified that he responded to a call at 11:30 p.m. on October 17. Officer Matthews saw the fingerprint technician and Davis's stepfather standing on the corner pointing east. Officer Matthews proceeded in that direction and came upon a green 1969 Buick Skylark stopped diagonally in the street with the trunk open. The car reversed, quickly accelerated forward, ran a stop sign, and then ran a flashing red light. Officer Matthews stopped the car. As he approached the car, Matthews saw in the trunk two rifles, a vinyl bag, and clothing. Rector was the driver and sole occupant of the vehicle.

                black dudes around here?"   The witness testified that she answered Rector's question in the negative
                

When Rector exited the car, Officer Matthews saw that he (Rector) was wearing a tight pair of designer blue jeans and no shirt. Rector told Officer Matthews that he had bought the items found in the trunk of his car from a black male in a white Ford pickup. Officer Matthews thereafter arrested Rector and brought him to the city jail. After arriving at the jail, Officer Matthews searched Rector and found a silver colored watch, one plain gold chain, a gold chain with a green stone, one gold chain with a gold star and a diamond in the center, one gold ring with a cross, and one woman's 1978 Anderson High School graduation ring with the initials "CKD" inside. Officer Matthews then exchanged Rector's jeans for jail clothes; Rector was not wearing any underwear.

The blue jeans taken from Rector were size 6, with a Calvin Klein brand name on them. An expert witness testified that the crotch area of the jeans tested positive for the presence of seminal stains. Arnold testified that the jeans taken from Rector were identical to those Davis was wearing when he last saw her. Arnold also identified a number of items found either on Rector's person or in his (Rector's) car that linked him to the burglary: the watch found in the blue jeans belonged to Arnold (it was in the dresser drawer of his apartment); the necklaces taken from Rector's car were similar to those Davis was wearing; the rings found in Rector's car belonged to Davis; the two rifles and strain gauge recovered from Rector's car were the items missing from the apartment; a blue-striped blouse found among the clothing in Rector's car was the same blouse Davis was wearing when Arnold last saw her alive; and a number of other items found in Rector's car, including a jar of pennies and miscellaneous clothing.

The jury was also told that Rector owned the 1969 Buick and that a number of items found inside the car (separate from the items found in the trunk) linked him to the burglary and abduction and murder of Davis. An Austin used car dealer testified that he sold Rector a 1969 green Buick Skylark on October 15, 1981 (approximately two days before the crime). The witness identified a document taken from a billfold found in the car as the receipt he gave Rector at the time of the sale. On the right front seat of the car, the police found bib overalls, and in a pocket was a copy of a traffic citation issued to Rector on October 15, 1981. An Austin police officer confirmed that he issued a traffic citation to Rector on that date. In addition, a leather sheath with a snap-over flap bearing the name "Schrade" was with the overalls; the Schrade sheath fit the knife found in Davis's apartment. The police also found a Rohm .22 caliber, six-shot revolver on the right front floorboard of the car; the cylinder held two live rounds, two spent shells, and two empty chambers.

Recovery of Davis's Body

On the morning of October 18, 1981, the nude body of Davis was discovered in the Colorado River just off of Redbud Island in Austin. Officials removed the body from the river at approximately 3 p.m. that day. The Medical Examiner's autopsy revealed that Davis had suffered a gunshot wound to the head (behind the right ear), and he recovered a .22 caliber bullet from Davis's brain. The Medical Examiner testified that the barrel of the gun which fired the shot was at least six inches away from Davis's head. In addition, the Medical Examiner concluded that Davis did not die from the gunshot wound because such a wound causes death within thirty minutes to an hour and because there were indications that Davis drowned. Based on A firearms expert also attempted to link up the .22 caliber bullet recovered from Davis's brain and the .22 caliber gun found in Rector's car. The expert testified that the bullet found in Davis's head was fired from a weapon that had eight lands and grooves inclined to the right. According to the expert, the gun recovered from Rector's car matched that description. However, the expert was unable to positively link the bullet taken from Davis's brain to Rector's gun because the bullet was mutilated.

the presence of water in her lungs, a dilated heart, bleeding in the...

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