Turner v. Johnson
| Decision Date | 19 February 1997 |
| Docket Number | No. 94-20839,94-20839 |
| Citation | 106 F.3d 1178 |
| Parties | Jessel TURNER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael B. Charlton, Michael B. Charlton Law Office, Houston, TX, for petitioner-appellant.
Gena A. Blount, Assistant Attorney General, Dan Morales, Attorney General, Margaret Portman Griffey, Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, and GARWOOD and DUHE, Circuit Judges.
Jessel Turner, a Texas death row inmate, seeks additional counsel, a stay of execution, and an evidentiary hearing on this, his first petition for federal habeas corpus relief. Finding Turner represented by very competent counsel and that he has received a full and fair hearing in state court, we deny that relief. In addition, because petitioner has not made a substantial showing of the denial of a federal right, we deny the requested Certificate of Probable Cause to appeal the district court's denial of a writ of habeas corpus as well as the successor Certificate of Appealability.
Near midnight on February 10, 1986, Jessel Turner walked up to a gas station in Houston, Texas and sought a ride from Archie Holmes, the driver of a cab parked there. Holmes was off duty but he asked his dispatcher to send out another cab for Turner. Turner spoke with Tracy McGrew, an employee of the station, as he waited for the cab. In a few minutes a cab driven by Charles Hunter picked up Turner and departed. A short time later Jimmy Darks, another cab driver, found Hunter lying in the road a few hundred yards from the station. He had been shot to death; his cab was gone.
Meanwhile, Turner had returned to the station driving a Chevrolet Impala. Shortly after Turner left, Houston police officers, alerted about the homicide and informed of Hunter's last dispatch, arrived at the gas station. As they were interviewing McGrew, who was giving them a description of Turner and his vehicle, Turner drove by. The police gave pursuit and, after a brief car chase, stopped Turner and placed him under arrest.
Turner was taken to a police station and placed in a line-up. McGrew identified Turner as the man who had entered Hunter's cab at the gas station a few minutes before Hunter's death. Archie Holmes, while unable to identify Turner positively as Hunter's last cab fare, advised of a similarity in appearance.
Around 8:00 a.m., while in police custody, Turner signed a written statement claiming that he had not been involved in Hunter's death. Several hours later he signed a second statement asserting that Hunter had threatened him with a pistol and that the fatal wound had been inflicted as the two men struggled for control of the gun. In a third statement, made at 2:40 p.m. that day, Turner admitted that the murder weapon was his but he stated that Hunter was killed when the weapon accidentally discharged. Finally, Turner gave a fourth written statement in which he confessed to robbing and kidnapping two women on the night of Hunter's murder.
Hunter's cab was found at Turner's apartment complex; a fingerprint from Turner's left ring finger was recovered from the outside of the front passenger door. A .22 caliber pistol was found under the front seat of the Impala Turner was driving when he was arrested. Ballistics tests confirmed that this weapon fired the shot which killed Hunter.
On April 13, 1987, Turner went on trial for capital murder while in the course of committing and attempting to commit a robbery, in violation of Section 19.03(a)(2) of the Texas Penal Code. Turner's motions to suppress the pretrial identifications and his statements to the police were denied. At the guilt phase Holmes and McGrew identified Turner as the man who had entered Hunter's cab shortly before his murder. The state also presented redacted versions of Turner's four statements, forensic evidence tying him to the crime, 1 and additional evidence of two extraneous armed robberies committed by Turner.
On April 23, 1987, the jury found Turner guilty of capital murder and the trial advanced into the punishment phase. The state presented significant other crimes evidence, including excerpts from Turner's four written statements. The only mitigating evidence Turner presented was testimony by two Harris County jailers that he was not a troublemaker and had helped restore order in the jail on several occasions. On April 27, 1987, the jury returned a unanimous affirmative response to the death penalty special issues and Turner was sentenced to death. His conviction and sentence were subsequently affirmed on direct appeal and the Supreme Court denied certiorari. 2
On June 11, 1992, Turner sought a state writ of habeas corpus. On June 29, 1994, after an evidentiary hearing, the trial court entered factual findings and legal conclusions, recommending that relief be denied; the Court of Criminal Appeals denied relief on the basis of the trial court's findings. 3 Turner filed a second application on October 3, 1994, and a second evidentiary hearing was held on October 10, 1994. On November 2, 1994, the trial court again recommended that relief be denied and the Court of Criminal Appeals adopted that recommendation. 4
Turner then filed the instant petition for federal habeas corpus relief, followed shortly thereafter by motions for a stay of execution and an evidentiary hearing. The state answered, filing a motion for summary judgment and a response to the request for a stay. The day before the scheduled execution the district court denied Turner's petition and declined to issue a Certificate of Probable Cause for appeal. Turner filed a notice of appeal, requested a CPC, 5 and sought and secured from this court a stay of execution in order that we might appropriately review the matter. 6
Turner first contends that the Supreme Court's recent decision in McFarland v. Scott 7 entitles him to the appointment of counsel and a stay order. Turner reads McFarland too expansively. The McFarland Court was concerned only with that period of time between the habeas petitioner's motion for the appointment of counsel and the filing of the initial petition. The Court reasoned that to preclude the issuance of a stay until a petition was filed would, as a practical matter, force the hasty and perhaps careless preparation and submission of a habeas petition merely to invoke the district court's power to enter a stay, a result inconsistent with section 848(q)(4)'s goal of providing effective legal representation for indigent capital defendants. Where, as here, a comprehensive petition has been filed, the mandate of McFarland has no application. 8 Turner has not established any "substantial grounds upon which relief might be granted" 9 and we perceive no error in the district court's ruling.
Turner next claims that despite the two postconviction evidentiary hearings in state court, he is entitled to an evidentiary hearing in federal court. "A federal habeas court must allow discovery and an evidentiary hearing only where a factual dispute, if resolved in the petitioner's favor, would entitle him to relief and the state has not afforded the petitioner a full and fair evidentiary hearing." 10 If the petitioner has been afforded a full and fair hearing in state court he may still claim an evidentiary hearing in federal court if he can show cause and prejudice for his failure to develop the desired facts in state court, or if the failure to hold such a hearing would result in a miscarriage of justice. 11
Turner, focusing upon the relatively short period between the filing of his second state habeas application and the evidentiary hearing thereon, complains that he was denied a full and fair hearing in state court because he was not allowed sufficient time to develop certain forensic evidence. 12 Turner's assertions, however plausible, are nonresponsive to the essential question whether he received a full and fair hearing in state court. In determining whether a state hearing was full and fair, we do not consider only the nature of the evidence which might have been adduced but, rather, inquire whether any procedural or substantive barriers precluded a fair presentation of that evidence during the state proceeding. 13
We previously have found the procedures governing Texas habeas corpus evidentiary hearings to be sufficient to produce a full and fair hearing. 14 The October 1994 evidentiary hearing was held specifically to address the claims of ineffective assistance of counsel raised in Turner's second state petition. At that hearing, Turner was represented by counsel familiar with the case and was afforded the opportunity to subpoena and question witnesses, submit exhibits and affidavits, cross-examine state witnesses, and generally to be heard. He received a full-blown evidentiary hearing. 15 Testimony from both of Turner's trial counsel were developed at that hearing and additional affidavits were entered into the record.
The record, and the opinions of the courts which have dealt with this case, make clear that the ballistics and medical testimony Turner challenges has been a matter of record since Turner's trial in 1987. Turner has not alleged that the weakness or inadequacy which he perceives in this evidence was not previously known to him; thus, his contention that he had inadequate time to prepare forensic rebuttal evidence for either state evidentiary hearing simply is not persuasive. Further, the record of the second evidentiary hearing reflects no request for a continuance so that such experts might be recruited. Unless state adjudicatory officials or procedures somehow impeded Turner's ability to submit exhibits and to subpoena and fully question...
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