Thacker v. Dretke

• Decision Date: 05 January 2005
• Docket Number: No. 04-70026.,04-70026.
• Citation: 396 F.3d 607
• Parties: Charles Daniel THACKER, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

396 F.3d 607

Charles Daniel THACKER, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 04-70026.

United States Court of Appeals, Fifth Circuit.

January 5, 2005.

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Robin Norris, Hart & Norris, El Paso, TX, for Petitioner-Appellant.

Carla Elaina Eldred, Austin, TX, for Respondent-Appellee.

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

Before SMITH, DeMOSS and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Charles Thacker seeks a certificate of appealability ("COA") from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Thacker cannot make a substantial showing of the denial of a federal constitutional right, we deny a COA.

I.

A state jury found Thacker guilty of capital murder and further answered Texas's special issues in a manner that required imposition of a death sentence. As summarized by the Texas Court of Criminal Appeals on direct review, the facts are as follows:

On the evening of April 7, 1993, during a telephone conversation with a friend, Karen Crawford said that she was going to go to the store for dog food. That same evening, a resident of her apartment complex informed the maintenance supervisor, Arkan Hall, that Crawford's keys were hanging from her mailbox, which was located in a common area near the apartment offices. Hall went to Crawford's apartment, but she did not answer the door. He then noticed her car, with her dog inside, parked near the mail room. While checking the area of the mail room and pool, Hall found the women's restroom locked. He beat on the door, and a man's voice answered from the inside. The man became quiet when Hall asked why he was using the women's restroom.

Hall attempted unsuccessfully to force open the door of the restroom. He then telephoned the apartment manager, Emily Vaughn. She and her husband Terrence Cowie arrived at the scene, and the three discussed what to do. Suddenly, the restroom door opened and [Thacker] emerged. A fight ensued when Hall attempted to stop him. Hall attempted to cut [Thacker] with his pocket knife, but [Thacker] sprayed him with mace and got away. [Thacker] sprayed Cowie as well, and then pushed his way through one of the two exit gates. Hall and others nearby chased [Thacker] down the block and tried to cut off his escape.

In the meantime, Vaughn found Crawford lying face down on the restroom floor. She was unconscious. One shoe and one leg of her jogging pants were pulled off; the other pants leg was pulled down to her ankle. Hall and another man administered CPR. They detected a heart beat, but she was not breathing. Some faint brain activity was detected when she arrived at the hospital, but it ceased within twenty-four hours.

Medical examiners concluded that Crawford's death was the result of strangulation. Crawford's neck was bruised on the front and left side and her face and eyes exhibited a condition known as pinpoint hemorrhaging. It was determined that a choke hold or "hammerlock" was the probable method of strangulation. No evidence of a completed sexual assault was found.

In the early morning hours of April 8, 1993, a police canine unit found [Thacker] hiding in a yard near Crawford's apartment complex. A truck containing papers bearing [Thacker's] name was found parked outside the offices of Crawford's apartment complex. [Thacker] was identified by several witnesses who saw him loitering about the mail room just before the offense. He was also identified by witnesses who saw him running where Crawford was found. A pubic hair matching a sample from Crawford was found in [Thacker's] underwear.

Thacker v. State, No. 71,891, at 2-3 (Sept. 18, 1996).

Thacker appealed, raising fifty-seven points of error. His conviction was affirmed on direct review, so he sought state collateral review, raising eight points of error, but was again denied relief. This denial was affirmed in an unpublished opinion by the Court of Criminal Appeals. Ex parte Thacker, No. 74,034 (Tex.Crim.App. Dec. 19, 2001) (unpublished), cert. denied, 537 U.S. 829, 123 S.Ct. 128, 154 L.Ed.2d 44 (2002).

Thacker filed his initial federal habeas petition, which the district court dismissed, without prejudice, to allow for complete state court exhaustion of his claim under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that juries must make determinations regarding aggravating and mitigating factors. After his second state habeas petition was dismissed, Ex parte Thacker, No. 48,092-02 (Tex.Crim.App. Dec. 10, 2003) (unpublished), Thacker renewed his federal habeas petition, raising nine grounds for relief. The district court denied relief and denied a COA. Thacker v. Dretke, No. H-04-CV-126 (S.D.Tex. May 27, 2004).

II.

Our review on a request for COA is highly circumscribed by statute. Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), to be entitled to relief a petitioner must show that the state court resolution of his case was either "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "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." 28 U.S.C. § 2254(d).¹ This high level of deference to state court proceedings "embodies the principles of federalism, comity, and finality of judgments...." Evans v. Cockrell, 285 F.3d 370, 374 (5th Cir.2002).

To grant a COA, however, we need not decide the ultimate merits of the underlying habeas petition; we ask only whether the petitioner has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claim or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). That is, our duty is to determine not whether Thacker is entitled to relief, but whether the district court's conclusion (that the state court adjudication was not contrary to or an unreasonable application of federal law) is one about which jurists of reason could disagree.²

III.

In his COA application, Thacker raises seven issues related to only two alleged errors: that (1) the instruction given the jury on his capital murder charge was a misstatement of Texas law, or at the very least was substantially confusing to the jury as to the sufficient level of intent required to convict; and (2) the trial court's disallowance of any reference to Thacker's parole eligibility in the presence of the jury was unconstitutional. Thacker argues that the erroneous jury charge violated his due process rights under the Fourteenth Amendment and the Trial by Impartial Jury Clause of the Sixth Amendment, and that he was deprived of his Sixth Amendment right to effective assistance of counsel. With respect to the parole eligibility question, Thacker avers that the purported error violates the Due Process Clause of the Fourteenth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Compulsory Process Clause of the Sixth Amendment.

A.

Texas law mandates that the court provide the jury with a written charge that describes the applicable law. See Tex.Code Crim. Proc. Ann. art. 3614. This statute has been interpreted as requiring "the judge to provide the jury with both an abstract statement of the law and an application of that abstract statement to the evidence in the case." Riley v. State, 830 S.W.2d 584, 586-87 (Tex.Crim.App.1992). The court instructed the jury, in the abstract portion, as follows:

A person commits the offense of murder if he intentionally causes the death of an individual or if he intends to cause serious bodily injury and intentionally commits an act clearly dangerous to human life that causes the death of an individual.

A person commits capital murder if he intentionally commits murder, as heretofore defined, and the person intentionally commits murder in the course of committing or attempting to commit aggravated sexual assault.

These instructions, when read in harmony, attempt to explain the uncontroversial principle that, under Texas law, one may not be convicted of capital murder without a finding that death was specifically intended. Murder, on the other hand, can be committed without that specific intent where an act obviously dangerous to human life causes death. Nevertheless, Thacker contends that the phrase "murder, as heretofore defined" confused the jury as to whether a specific intent was required to find him guilty of capital murder.³

Thacker's concern is not unfounded. In the midst of deliberations, the jury foreman sent a note to the court, querying,

On page 3, the charge says, "Now, if you find ... intentionally cause the death of...." Does that mean that the defendant had to have the intent to cause her death to be convicted of capital murder? Or as on page 1, "... if he intends to cause serious bodily injury and intentionally commits an act clearly dangerous to human life ..." sufficient to convict the defendant of capital murder in conjunction with the attempt to commit aggravated sexual assault.

In response, the court directed the jury "[p]lease refer to the charge and continue deliberating." The jury continued deliberating for fifteen minutes before returning a guilty verdict on the charge of capital murder.

On review of Thacker's first petition for state habeas relief, the Court of Criminal Appeals held that the instructions did not contain "any error at all," Ex...