Reed v. Thaler, A-02-CA-142 LY

• Court: U.S. District Court — Western District of Texas
• Writing for the Court: ANDREW W. AUSTIN
• Decision Date: 15 June 2012
• Docket Number: No. A-02-CA-142 LY,A-02-CA-142 LY
• Citation: Reed v. Thaler, No. A-02-CA-142 LY (W.D. Tex. Jun 15, 2012)
• Parties: RODNEY REED, Petitioner v. RICK THALER, Respondent

RODNEY REED, Petitioner

v.RICK THALER, Respondent

No. A-02-CA-142 LY

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

SIGNED: June 15, 2012

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

The Magistrate Court submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges, as amended.

Before the Court are: Petitioner's Second Amended Petition for Habeas Corpus Under 28 U.S.C. § 2254 (Clerk's Doc. No. 137), Respondent Thaler's Answer and Motion for Summary Judgment (Clerk's Doc. No. 150), and Petitioner's Response to Respondent's Motion for Summary Judgment and Answer (Clerk's Doc. No. 158).

I. CLAIMS PRESENTED

In 1998, Rodney Reed was convicted of the capital murder of Stacy Stites and sentenced to death by a Bastrop County, Texas jury. For more than a decade, Reed's attorneys have sought redress in both federal and state court. After a series of appeals and state habeas petitions, Reed'scase returns to this Court on a federal writ of habeas corpus. In his Second Amended Petition, Reed asks the Court to consider the following claims:¹

1. Reed is actually innocent of the capital murder of Stacey Stites.

2. The State deprived Reed of due process by suppressing evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), including:

a. The results of DNA tests performed on two beer cans by the Texas Department of Public Safety Crime Laboratory ("DPS crime lab");

b. Martha Barnett's statement that she saw Stites with Stites's fiancé Jimmy Fennell in the early morning hours on the day of her murder;

c. Mary Blackwell's statement that she overheard Fennell state that he would choke Stites with a belt if he ever caught her cheating on him;

d. Statements from Brenda, Jennifer, and Paul Prater that they saw Stites in the early morning hours on the day that she was murdered with persons other than Reed;

e. Pam Duncan's statement that Fennell was controlling and abusive during their dating relationship;

f. Evidence that Fennell and other Giddings police officers engaged in a pattern of brutality when interrogating suspects;

g. Evidence that the Bastrop County Sheriff was engaged in crimes of moral turpitude at the same time the Bastrop County Sheriff's Office was investigating Stites's murder;

h. Statements made by Giddings police officer David Hall regarding Fennell during Stites's murder investigation; and

i. Wendy Wallace's statement that she was stalked and harassed by Fennell and Hall while they were on duty as Giddings Police Officers.

3. Reed was deprived of his Sixth Amendment right to effective assistance as a result of trial counsel's failure to perform adequately, by failing to:

a. Properly investigate and discover information prior to trial concerning:

1. Assertions by the Praters that they saw Stites on the night of her murder with people other than Reed.

2. Fennell's propensity for violence; and

3. Reed's prior relationship with Stites;

b. Effectively impeach the State's forensic evidence; and

c. Timely offer the statements of Neal Hawken and Jason Allison into evidence during the guilt-innocence phase of his trial;

4. The cumulative effect of Reed's Brady allegations and his ineffective assistance of counsel claims undermines confidence in the outcome of the trial;

5. The State knowingly presented false and misleading testimony regarding Fennell in violation of Reed's Fourteenth Amendment right to due process;

6. The Texas death penalty statute under which Reed was convicted unconstitutionally prohibits the jury from being informed during the punishment phase about the effect of a single negative vote;

7. Reed was deprived of his rights under the Eighth and Fourteenth Amendments when evidence of an extraneous offense for which Reed had previously been acquitted was admitted during the punishment phase of his trial;

8. Reed's right to due process under the Fourteenth Amendment was violated when, during closing argument, the State implied that defense counsel had suborned perjury;

9. Reed's Fifth and Fourteenth Amendment rights were violated when the State commented on his failure to testify;

10. The trial court interfered with Reed's Sixth and Fourteenth Amendment right to prepare a defense by:

a. Refusing to grant Reed's motion for a continuance;

b. Excluding Jimmy Fennell's polygraph test results;c. Appointing counsel for two witnesses during the guilt/innocence phase of trial; and

d. Allowing the State to introduce evidence during the punishment phase of an extraneous offense for which he was previously acquitted;

11. Reed's Sixth Amendment right to counsel was violated because appellate counsel labored under an actual conflict of interest;

12. Reed's appellate counsel rendered ineffective assistance by failing to raise meritorious points of error on direct appeal in violation of his Sixth Amendment right to counsel;

13. Reed's death sentence violates the Sixth, Eighth, and Fourteenth Amendments because the State was not required to prove the mitigation special issue beyond a reasonable doubt as required by the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S.466 (2000), and Ring v. Arizona, 536 U.S. 458 (2002).

II. GENERAL BACKGROUND

A. Factual Background

In its 2008 opinion, the Court of Criminal Appeals provided a very detailed account of the facts that were developed in Reed's trial, as well as in the post-conviction proceedings. Ex parte Reed, 271 S.W.3d 698, 702-712; 713-15; 717-26 (Tex. Crim. App. 2008). Given this detailed account, there would be no purpose in this Court restating all of those facts. Accordingly, the Court will rely on that statement, and only briefly summarize the facts here.

Stacey Stites's body was found in the afternoon on April 23, 1996, on the side of a country road in Bastrop County, Texas. Upon the discovery of her body, the City of Bastrop Police and Bastrop County Sheriff's Departments joined forces with the Texas Rangers to investigate her apparent rape and murder. The lead investigator was Texas Ranger L.T. Wardlow. Over the subsequent eleven months, the authorities' investigation focused on Stites's acquaintances, particularly her fiancé, Jimmy Fennell. HEB, Stites's employer, offered a $50,000 reward, and the police identified roughly thirty male suspects. Even after Fennell provided a blood sample, whichexcluded him as the donor of semen found in and on Stites's body, the authorities continued to pursue him as a suspect. Ranger Wardlow interrogated Fennell multiple times and the authorities attempted to discover scenarios that would have made it possible for him to have been both at the murder scene at the time of the murder, and also at his apartment 35 miles away between 6:30 and 7:00 a.m. the same morning, where Stites's mother testified she spoke with him.

Eventually, a match was discovered between the DNA found at the scene and the DNA of Rodney Reed, a Bastrop resident who lived near the location at which Fennell's truck was found. After providing Reed with his Miranda warnings, the police interviewed him and he denied knowing Stites. In May of 1997, the State charged Reed with capital murder. The jury convicted him, and after a separate punishment hearing, sentenced him to death.

B. Procedural History

Reed appealed his conviction on several grounds, including that the evidence was factually insufficient. The Court of Criminal Appeals (CCA) rejected his claims, holding that "the strength of the DNA evidence connecting [Reed] to the sexual assault on [Stites] and the forensic evidence indicating that the person who sexually assaulted [her] was the person who killed her, a reasonable jury could find that [Reed] is guilty of the offense of capital murder." Reed v. State, No. AP-73,135, at *9 (Tex. Crim. App. 2000). The CCA thus affirmed Reed's conviction and sentence. Id. at 22.

1. Initial state habeas proceedings

Reed has filed numerous state habeas petitions. Reed filed an initial petition in November of 1999. In February 2001, before the CCA ruled on this petition, Reed filed a supplemental claim. The following February, the CCA denied his first petition and construed the supplement as a subsequent application. In Reed's second application, he claimed that the prosecution failed to turnover to defense attorneys a letter from a crime scene investigator to Lisa Tanner, the lead prosecutor. In the letter, the investigator, Wilson Young, provided the results of DNA tests on beer cans found near the murder scene. The report stated that neither Stites, Officer Hall (Fennell's neighbor, good friend, and fellow police officer), nor Investigator Selmala (one of the first respondents from Bastrop Police Department who arrived at the crime scene and, years later, committed suicide, which prompted an investigation as to whether he may have been involved in the murder), could be excluded as possible sources of DNA found on the beer can. Reed argued that Brady v. Maryland compelled the prosecution to turn over the letter to his defense attorneys, and the failure to do so merited habeas relief.

The trial judge held an evidentiary hearing on this claim. The letter was dated May 13, 1998, during the defense's case-in-chief. Dr. Elizabeth Ann Johnson, the defense's DNA expert, was scheduled to testify the next day. The prosecution had not planned on performing testing on the beer cans, because Ranger Wardlow felt the cans had been at the scene longer than Stites's body. However, Reed's defense team wanted to test the cans, so Young and Dr. Johnson swabbed the cans and performed DNA tests. When Dr. Johnson testified, she did not discuss the results from the DNA testing on the beer cans.

In the post-conviction evidentiary hearing, Tanner admitted that she learned...