Summers v. Dretke, 04-70017.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation431 F.3d 861
Docket NumberNo. 04-70017.,04-70017.
PartiesGregory Lynn SUMMERS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Decision Date02 December 2005

Danalynn Recer, The Gulf Region Advocacy Center, Houston, TX, Clive A. Stafford-Smith, Louisiana Crisis Assistance Center, New Orleans, LA, for Petitioner-Appellant.

Carrie Elizabeth Parsons, Austin, TX, for Respondent-Appellee.

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

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.


Petitioner-Appellant Gregory Lynn Summers ("Summers") appeals from the district court's denial of his application for a writ of habeas corpus. Summers also seeks a Certificate of Appealability ("COA") for claims not certified by the district court. Because Summers has failed to carry his burden in both, we affirm the judgment of the district court and deny Summers's application.

A. Underlying Crime and Involved Persons

Mandell Eugene Summers, Helen Summers, and Billy Mack Summers were fatally stabbed and left in a burning building. Evidence at trial revealed that Summers hired Andrew Cantu to murder Summers's relatives—father, mother, and uncle, respectively—for financial gain.1 For this crime, Texas tried, convicted, and sentenced Summers to death in 1991.

Cantu enlisted the aid of Raymond Gonzales and Paul Flores to carry out the act. (Cantu had solicited another, Max Aguirre, but Aguirre declined to join the conspiracy.) Cantu's payment was to be from money found in the house. Among others, Aguirre, Flores, and Gonzales each testified in Summers's trial to statements made by Cantu regarding Summers.

After the publication of news reports on the crime, Keenan Wilcox contacted the police and described how Summers had approached him to perform the same acts, i.e., the murder of Summers's relatives and the burning of their house. Wilcox reported that Summers offered to pay for the crime with money found in the house and from insurance proceeds. Wilcox testified about Summers's solicitation.

While in custody, Summers befriended William Spaulding, another inmate. Spaulding assisted Summers with legal work and prepared documents for Summers. When Spaulding realized that Summers was using documents prepared by Spaulding as false evidence, Spaulding contacted prison officials and told them of his encounter with Summers. During their interactions, Summers told Spaulding of Summers's part in the murders. Spaulding testified as to those events at Summers's trial.

B. Procedural History

The Texas Court of Criminal Appeals affirmed Summers's conviction on June 8, 1994. On October 7, 1996, the United States Supreme Court denied Summers's petition for a writ of certiorari. On October 1, 1997, Summers filed a habeas petition with the district court in Taylor County. The Texas Court of Criminal Appeals denied this application for state post-conviction relief on March 28, 2001.2

On April 4, 2001, Summers filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Texas. He filed an amended application on November 15, 2001. Summers asserted ten claims for relief. The application was opposed by Appellee-Respondent Doug Dretke, Director, Texas Department of Criminal Justice (the "Director").

On March 4, 2004, the district court released a Memorandum Opinion and Order granting the Director's motion for summary judgment. No such motion had been filed. In response to Summers's Motion to Alter and Amend Judgment, the district court issued an Amended Judgment on March 24, 2004. The Amended Judgment read: "The Court, having considered the allegations in the petition, the authorities and exhibits in the application, answer, and reply, and the evidence in the record, finds that the application is not well-taken and it will be denied." The district court then entered judgment "for the Director on all claims in Summers' [sic] application."

Summers filed a Notice of Appeal on April 23, 2004. On May 10, 2004, the district court granted a COA for three of Summers's original ten claims—the second, fourth, and fifth. The three claims included in the COA are: (1) the trial court violated Summers's constitutional rights by admitting Cantu's statements into evidence; (2) the state violated Summers's constitutional rights by withholding exculpatory evidence relevant to the credibility of certain witnesses; and (3) the trial court violated Summers's constitutional rights by giving jurors misleading and constitutionally defective instructions which prevented them from considering mitigating evidence at sentencing. The district court declined to issue a COA as to seven of Summers's claims. The parties have fully briefed the three certified issues, and the appeal currently pends before this court.

On August 3, 2004, Summers filed an Application for Additional Certificate of Appealability with this court, which raised four arguments: (1) this court should grant COA for all ten claims presented before the district court; (2) this court should grant COA for Summers's first, seventh, eight, ninth, and tenth claims; (3) reasonable jurists could disagree about whether Spaulding's testimony was admissible; and (4) reasonable jurists could disagree about the materiality of the testimony of Dr. Grigson, a witness for the state, and whether or not the state knowingly presented false evidence. The parties have fully briefed the application, which is currently pending before this court.


Summers filed his petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). As a result, the petition is subject to the procedures and standards imposed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

A. Appeal from a Denial of a Habeas Corpus Petition

"In a habeas corpus appeal, we review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court." Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.2001) (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998)). "A federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). As a result, whether at the district court or the circuit court, a federal court's review of a claim adjudicated in a state court is deferential:

Under § 2254(d), a federal court cannot grant habeas corpus relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (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.

Hughes v. Dretke, 412 F.3d 582, 588-89 (5th Cir.2005) (citing 28 U.S.C. § 2254(d)). Moreover, this court has held that "a federal habeas court is authorized by Section 2254(d) to review only a state court's `decision,' and not the written opinion explaining that decision." Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc)). See also Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001) ("The statute compels federal courts to review for reasonableness the state court's ultimate decision, not every jot of its reasoning.").

(1) Findings of Fact

A state court's factual findings are "presumed to be correct." Hughes, 412 F.3d at 589 (citing 28 U.S.C. § 2254(e)(1)). Before a federal court, "a petitioner has the burden of rebutting this presumption with clear and convincing evidence." Id. (citing 28 U.S.C. § 2254(e)(1)).

(2) Conclusions of Law

Under AEDPA, a federal court's assessment of a state court's conclusions of law is similarly deferential. The Supreme Court has determined that section 2254(d)(1) affords a petitioner two avenues, "contrary to" and "unreasonable application," to attack a state court application of law. See Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (noting the clauses have "independent meaning"). Under the first clause:

a state court decision is "contrary to ... clearly established Federal law, as determined by the Supreme Court" if: (1) "the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent."

Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.2002) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495).

Under the second clause, "a state court decision is `an unreasonable application of clearly established' Supreme Court precedent if the state court `correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.'" Id. (quoting Williams, 529 U.S. at 407-08, 120 S.Ct. 1495). The Supreme Court provided further guidance:

First, the Court indicated that the inquiry into unreasonableness is an objective one. Second, the Court emphasized that "unreasonable" does not mean merely "incorrect": an application of clearly established Supreme Court precedent must be incorrect and unreasonable to warrant...

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