Riley v. Cockrell

• Decision Date: 16 July 2003
• Docket Number: No. 02-41179.,02-41179.
• Citation: 339 F.3d 308
• Parties: Michael Lynn RILEY, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice-Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

339 F.3d 308

Michael Lynn RILEY, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice-Institutional Division, Respondent-Appellee.

No. 02-41179.

United States Court of Appeals, Fifth Circuit.

July 16, 2003.

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Alexander Lee Calhoun, Law Office of Alex Calhoun, Austin, TX, for Petitioner-Appellant.

Deni S. Garcia, Austin, TX, for Respondent-Appellee.

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

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner, Michael Lynn Riley ("Riley"), is a death-row inmate in the custody of the Texas Department of Criminal Justice, Institutional Division. The district court granted Riley a certificate of appealability ("COA") based on one of his sub-claims of ineffective assistance of counsel, because his trial counsel failed to investigate and present evidence with regard to Riley's possible mental retardation. In this motion, Riley urges this Court to grant him COAs on the three additional grounds that: (1) the trial court deprived itself of jurisdiction by granting a motion to set aside the indictment, which rendered Riley's conviction and sentence unconstitutional under the Due Process Clause; and (2) trial counsel was ineffective because, (a) he argued that there were no mitigating factors that arose from Riley's personal history, and (b) he failed to argue that Riley had accepted responsibility for his crime when trial counsel specifically urged him to plead guilty for that purpose.

The state habeas court rejected all of the grounds Riley now advances on appeal, including his claim of ineffective assistance of counsel based on counsel's failure to investigate and present evidence of Riley's possible mental retardation. The Texas Court of Criminal Appeals adopted all but two of the state habeas court's findings.¹ Aside from granting a COA based on Riley's sub-claim of ineffective assistance of counsel, the district court rejected these additional grounds as possible bases for a COA. We now DENY Riley's motion for additional COAs.

I. FACTS AND PROCEEDINGS

On February 1, 1986, at approximately 9:30 a.m., Riley fatally stabbed 23-year-old Winona Lynn Harris in the convenience store where she worked. Police found her stabbed and cut thirty-one times; some of the stab wounds were delivered with enough force to sever the underlying ribs. Later that day, Riley went to the Sheriff's office and told a deputy that he knew something about the murder, and left. The Sheriff went to Riley's house and brought him back to the Sheriff's office for further questioning. Riley led police to the evidence of the crime: bloodstained coveralls with $970 in the pocket that was hidden under some brush in a field close to Riley's house. Riley waived his Miranda rights and confessed to the murder.

A. Lack of Jurisdiction Claim

The state of Texas twice tried, and twice convicted Riley for capital murder. In Riley's second capital murder trial, his attorneys filed numerous pre-trial motions, including a "Motion to Set Aside Indictment Due to Unconstitutionality of Statute", filed on June 16, 1995, and a "Motion to Quash Indictment", filed July 10, 1995. The trial court addressed these motions at a hearing on July 10, 1995. At the hearing, the judge stated in open court that she denied the motion to quash the indictment. The judge further verbally denied Riley's Motion to Set Aside the Indictment Due to Unconstitutionality of the Statute.²

After the hearing, the court entered a written order, in which it checked "GRANTED", rather than "DENIED", in the space designated for the disposition of the motion. All parties proceeded to trial. Later, during Riley's state habeas appeal a year later, he challenged the validity of the trial court's jurisdiction due to its clerical mistake on the written order. The state habeas judge, who was the same as the state trial judge, held an evidentiary hearing. Based on the reporter's record and from state law, the judge determined that she had, indeed, denied the motion on the record, that the written order was clerical error, and that it was proper to rule on personal recollection. The state habeas court entered a nunc pro tunc order correcting the original order granting the motion to quash the indictment. The district court deferred to these findings in ruling that Riley was not entitled to a COA based on this ground.

B. Ineffective Assistance of Counsel Claims

Riley's counsel, William C. Wright ("Wright"), advised him to plead guilty in the guilt phase,³ and primarily focused on the punishment phase of the trial. While Wright mainly concentrated on the issue of Riley's future dangerousness, he presented some testimony from Riley's mother and sister, who testified about Riley's childhood in a large family without a father, where he helped care for siblings and provided financial assistance to both his mother and sister at different intervals. Riley's cousin testified that Riley was a good athlete and had made clocks as gifts for his family while in prison. The defense further presented testimony from several prison staff employees who testified that Riley was a model prisoner, had not displayed any violent tendencies, and was not a future danger in the prison setting. Wright did not highlight any possible mitigating factors during closing argument, aside from that evidence which demonstrated that Riley would not be a future danger in the prison setting. Instead, he stated: "I'm not asking you to look at mitigation. It's not — not there. Wouldn't lie to you." Wright later claimed, at the state habeas hearing, that his "no mitigation" argument was a measure taken to gain "credibility with the jury." The state habeas court found that this was a "reasonable trial strategy under the facts of the case," and that the outcome of the trial likely would not have been different if Wright had employed a different strategy.

Although Wright had advised Riley to plead guilty, in part, for the purpose of showing acceptance of responsibility for his crime, Wright never argued this point to the jury. Wright did, however, mention in his closing argument that Riley had confessed to the murder, and had led the police to the evidence when it was likely that the police would not have found it.⁴ Wright did not state that Riley had plead guilty, but he highlighted the fact that he and his co-counsel had put on a limited defense in the guilt phase.⁵ In the state habeas proceedings, Wright did not present an explanation for why he did not argue that Riley's guilty-plea was either relevant to future dangerousness or mitigation. ⁶ The district court assumed that counsel had been deficient for failing to incorporate the guilty plea within his final argument, but concluded that Riley had not sufficiently established prejudice.

II. STANDARD OF REVIEW

Because Riley filed his habeas petition on April 1, 1998, the Antiterrorism and Effective Death Penalty Act ("AEDPA") applies to this appeal. See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir.2002)(citing Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (noting that AEDPA applies to all federal habeas corpus petitions filed on or after April 24, 1996)). "Under AEDPA, a COA may not issue unless the applicant has made a substantial showing of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 894, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotations omitted)). To obtain a COA, the petitioner must show that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.

Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (quoting Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383 (internal quotations omitted)). In Miller-El, the Supreme Court stated that a petitioner seeking a COA must prove "something more than the absence of frivolity or the existence of mere `good faith' on his or her part." 123 S.Ct. at 1040. Furthermore, the Court reiterated the guideline set forth in Slack: when the district court has rejected the petitioner's constitutional claims, to satisfy § 2253(c), the petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595).

Moreover, in considering the petitioner's claims, 28 U.S.C. § 2254(e)(1) provides that:

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.

III. DISCUSSION

A. Lack of Jurisdiction Claim

Riley claims that because the trial court entered and signed an order granting his motion to set aside the indictment, the trial court lacked jurisdiction over his trial under Texas law. As such, Riley claims that his conviction and death sentence violate the Due Process Clause of the Fifth and Fourteenth Amendments. The State contends that the trial court's grant of the motion was a clerical mistake, as demonstrated by the trial court's verbal ruling in open court, and that the state habeas court's nunc pro tunc order cured the error. The district court agreed, and concluded that the trial court's "later nunc pro tunc order validly and retroactively restored the trial court's jurisdiction." Riley v. Cockrell, 215 F.Supp.2d 765, 772 (E.D.Tex.2002).

This Court will consider the sufficiency of the indictment as a basis for habeas relief if the mistake in the indictment is so fatally defective that it deprives the convicting court of jurisdiction. Meyer v. Estelle, 621...