Riley v. Cockrell
| Decision Date | 17 July 2002 |
| Docket Number | Civil Action No. 1:99cv005. |
| Citation | 215 F.Supp.2d 765 |
| Parties | Michael Lynn RILEY, Petitioner, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. |
| Court | U.S. District Court — Eastern District of Texas |
Alexander Lee Calhoun, Austin, TX, for Plaintiff.
Theresa Ann Kraatz and Deni S. Garcia, Austin, TX, for Respondents.
Petitioner Michael Lynn Riley ("Riley"), an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Riley challenged his conviction and death sentence imposed by the 114th Judicial District Court of Wood County, Texas, in cause No.12,101, styled The State of Texas v. Michael Lynn Riley.
On February 1, 1986, at approximately 9:30 a.m., Riley fatally stabbed Winona Lynn Harris, a convenience store employee, during a robbery. At approximately 1:00 p.m., Riley arrived at the Sheriff's office, hinted that he knew something about the killing and left. The Sheriff then went to Riley's house and brought him back to the office. Riley waived his Miranda rights and confessed to the killing. On September 18, 1986, he was indicted for capital murder pursuant to TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1989). He was tried before a jury and found guilty on November 17, 1986. Following a separate punishment hearing, the jury answered the special sentencing issues such that the trial judge sentenced Riley to death.
On November 10, 1993, the Texas Court of Criminal Appeals reversed his conviction and sentence on the grounds that a venireperson was improperly struck from the jury. Riley v. State, 889 S.W.2d 290, 296-97 (Tex.Crim.App.1993), cert. denied, 515 U.S. 1137, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1995).
The State of Texas opted to retry Riley. On June 16, 1995, Riley filed a motion to set aside the indictment on the grounds that the Texas capital sentencing statute was unconstitutional. At a pretrial motions hearing on July 10, 1995, the trial judge stated that the motion was denied, but inadvertently signed an order which granted the motion. The order was entered on that date.
Neither the trial court nor the parties were aware that the indictment had been set aside, because on September 5, 1995, Riley's second trial commenced. Riley pled guilty to the capital murder charge in the 1986 indictment, however, under Texas law a not-guilty plea was entered, and the State was required to prove beyond a reasonable doubt all of the elements of the charge. On September 6, 1995, a jury again convicted Riley. After a two-day punishment hearing, the jury again answered the first two special punishment issues in the affirmative and the third in the negative,1 and on September 8, 1995, the Hon. Cynthia Stevens Kent sentenced Riley to death.
On May 28, 1997, the Texas Court of Criminal Appeals affirmed the conviction and sentence in an unpublished opinion. State of Texas v. Michael Lynn Riley, No. 72,229. Riley did not seek a writ of certiorari from the United States Supreme Court. Instead, on April 1, 1998, Riley filed an application for a writ of habeas corpus in state court. The application was heard by Judge Kent, who was also the trial judge. At the June 26, 1998, evidentiary hearing on the application, the judge responded to Riley's claim that the trial court lacked jurisdiction because she signed an order setting aside the 1986 indictment. Refusing to recuse herself or to submit to questioning by counsel, the judge stated that her July 10, 1995, order was a clerical error and then entered an order reinstating the indictment nunc pro tunc.
On September 8, 1998, the trial court entered findings of fact and conclusions of law denying all of Riley's claims. On December 16, 1998, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions with the exception of findings 39 and 40.2 Ex Parte Riley, No. 39,238-01. On April 9, 1999, Riley filed a petition for a writ of habeas corpus in this court. On June 1, 1999, the Director answered and moved for summary judgment on all of Riley's claims. On January 4, 2001, Riley responded to the motion. It is thus ripe for determination.
28 U.S.C. § 2254(d) provides that
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In addition, 28 U.S.C. § 2254(e)(1) provides that
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
In the present case, the Texas Court of Criminal Appeals denied nearly all of Riley's claims and sub-claims on the merits, either on direct appeal or on his State habeas corpus application. This court's analysis of those claims and sub-claims is limited to determining whether the Texas Court of Criminal Appeals' decision contravened clearly established Supreme Court precedent, involved an unreasonable application of such precedent, or involved an unreasonable determination of the facts in light of the evidence presented. The sub-claims not directly addressed by the Texas Court of Criminal Appeals are reviewed de novo.
The presumption of correctness under 28 U.S.C. § 2254(e)(1) changes the way in which summary judgment motions are analyzed. In an ordinary civil case, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In a habeas corpus case, however, the evidence of the petitioner will not be credited, and inferences will not be drawn in his favor, unless he rebuts by clear and convincing evidence the facts found by the state court. Emery v. Johnson, 940 F.Supp. 1046, 1051 (S.D.Tex.1996), aff'd., 139 F.3d 191 (5th Cir.1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998).
In his petition, Riley raised three major claims:
1. The District Court lacked jurisdiction to try him for murder.
2. He received ineffective assistance of counsel at trial. (Riley raised seven sub-claims under this claim.)
3. He was denied a fair and impartial jury. (Riley raised five sub-claims under this claim.)
Riley contends that the trial court lost jurisdiction over his case when Judge Kent set aside the indictment, and as a result, his conviction in the trial that followed is invalid.
Although a conviction in the absence of a valid indictment is invalid, see Garcia v. Dial, 596 S.W.2d 524, 528 (Tex. Crim.App.1980), in the present case the judge issued a nunc pro tunc order reinstating the indictment. Under Texas law, the entry of a nunc pro tunc order reinstating a dismissed indictment after the jury has convicted the defendant cures the invalid conviction if the original dismissal of the indictment was a "clerical error." Jiminez v. State, 953 S.W.2d 293, 295-96 (Tex.App.-Austin 1997, writ ref'd.); English v. State, 592 S.W.2d 949, 955-56 (Tex. Crim.App.), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980). A "clerical error" is an error in which no judicial reasoning is involved, such as here where the judge stated in open court that the motion is denied, but checked the box on the order marked "granted" instead of the box marked "denied." By contrast, a "judicial error" occurs if the judge intends to grant the motion at the time she signed the order, but later realized that her legal reasoning was incorrect. Id.
In the present case, Judge Kent's factual findings on this issue were adopted by the Texas Court of Criminal Appeals. They were:
57. Regarding Applicant's claim that the indictment was dismissed, the Court finds that numerous motions were heard in pre-trial hearing on July 10, 1995 including three motions entitled: Motion to Quash the Indictment, Motion to Declare Unconstitutional Article 37.071, Motion to Declare Unconstitutional Article 37.071(g) and Motion to Set Aside Indictment Due to Unconstitutionality of the Statute. The Court signed many different orders but only directed the clerk to file those orders which were finally decided and ruled upon by the court. Although the order now complained about in this writ was signed the clerk was not directed to file this order as it was not signed by the judge for filing in the case and did not reflect the ruling of the court. The clerical error of the filing of this order was corrected by the trial court when the clerical error was brought to the court's attention in a nunc pro tunc order.
* * *
59. The Court further finds and Applicant admits that the order relied upon by Applicant in support of his jurisdictional complaint was the order submitted on Defendant's Motion to Set Aside Indictment Due to Unconstitutionality of the Statute. The Court further finds that it denied said motion, but through a clerical error the wrongly checked order was file marked by the clerk instead of the proper order reflecting the actual ruling of the trial court. This clerical error has been corrected by a nunc pro tunc...
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