Westley v. Johnson

• Decision Date: 13 May 1996
• Docket Number: No. 95-20635,95-20635
• Citation: 83 F.3d 714
• Parties: Anthony Ray WESTLEY, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 714

83 F.3d 714

Anthony Ray WESTLEY, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 95-20635.

United States Court of Appeals Fifth Circuit.

May 13, 1996.

Barry Abrams, Robert J. Scott, Abrams, Scott & Bickley, Houston, TX, for Anthony Ray Westley.

John Dury Jacks, Dan Morales, Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division.

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

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Anthony Ray Westley, convicted of murder and sentenced to death by a Texas state court, appeals from the district court's denial of his petition for a writ of habeas corpus. For the reasons discussed below, we affirm.

I.

On Friday, April 13, 1984, Debra Young (Young) was working in Eileen's Bait and Tackle, owned by Chester Frank Hall (Hall) and his wife, Eileen. At approximately 1:45 p.m., Anthony Ray Westley (Westley), John Dale Henry (Henry), and Walter Dunbar (Dunbar) entered the store. Hall had just walked out to go home. According to Young, Westley went up to her at the counter and asked for fishing worms. While she was preparing the bait, Westley grabbed her and stuck a gun in her face. Young started screaming and Westley threatened her: "Shut up, or I will kill you." He then demanded money and struck her in the chest, knocking her against the wall. Young opened the cash register and Westley ordered her to lie down behind the counter. Westley grabbed the money and then noticed a pistol case and money bag behind the counter, both empty. He patted Young's pockets for the gun and demanded the rest of the money. Young said her boss had taken it. Westley then told Young to turn her face to the wall and put a gun in her back. At that point, the bell on the front door rang as Hall entered the shop.

Westley stood, fired a shot toward the door, and ran out from behind the counter. Young testified that Westley fired the first shot, but then she heard a rapid succession of gunshots from both large and small caliber pistols, including Hall's small derringer. Young rose to a crouching position and peered over the counter. She saw Hall running toward the store's office with Westley and Henry in pursuit. Westley caught Hall before he reached the office and a struggle ensued. Young testified that Westley repeatedly hit Hall's head against a concrete fish tank. She also heard three to five more gunshots, none of which sounded like Hall's gun. Then she heard a final shot from the direction of Westley and Hall who were still scuffling and saw both men jerk.

Westley then ran from the store followed by Henry, who was wounded. Dunbar had been shot and was dying on the floor. Hall rose to his feet, came toward Young, collapsed and died. The next day, April 14, 1984, Young positively identified Westley at a line-up as the assailant who had threatened her and fought with Hall.

Officers from the Harris County Sheriff's Office arrived shortly after the shooting. Two guns were found at the scene--a .25 caliber automatic by Dunbar's body and a five-shot .22 caliber derringer by Hall's. Also, two 38 caliber slugs were recovered from the floor of the shop. During the investigation of the crime scene, three women--Sefaneze Henry, Martha Walker, and Chrischilla Cousan--arrived to view Dunbar, the assailant who had been killed. Sometime later, officers discovered that Dunbar lived at the same address as these three women. After questioning these women again, the police believed the other two robbers to be Westley and Henry.

At 9:50 a.m. on April 14, 1984, Westley, accompanied by his father, turned himself in to the police. Westley gave a written confession in which he admitted carrying a .22 caliber cowboy-style pistol and participating in the aggravated robbery. He also stated that Henry carried a .38 caliber pistol and was the one who threatened Young during the robbery. This statement was admitted as evidence at Westley's trial after a hearing in which the court found that it was given voluntarily.

The State also produced two witnesses at trial who saw two men run from the bait shop and flee in the getaway car. This car was eventually found a few miles from the residence of Walter Dunbar. Inside the car, police found two rolls of pennies believed to have been taken from the office of the bait shop.

A security guard and nurse at Northeast Memorial Hospital identified Westley and Henry as the two men who came to the emergency room at about 2:00 p.m. on April 13, 1984, for treatment of Henry's gunshot wound.

The medical examiner testified that Hall died from a gunshot wound that had been fired within six inches of the victim. At Westley's trial, C.E. Anderson, the state firearms examiner, testified that the fatal bullet was a .22 caliber long rifle, which could not be traced to either gun found at the scene. The firearms carried by Westley and Henry were never recovered. Anderson identified State's Exhibit No. 17, a picture of a cowboy-style handgun, as a long-barrel Ruger .22 caliber. Young and other witnesses identified the pistol depicted in this exhibit as similar to the type of gun Westley carried. On cross-examination, Anderson admitted that larger caliber handguns from the side looked like Exhibit 17 and that only an outside chance existed that this Ruger-style gun fired the fatal bullet. But Anderson maintained that other manufacturers made this style .22 from which the fatal round could have been fired.

Chrischilla Cousan, Henry's fifteen-year-old niece who lived in the same house as Westley, testified that she had seen Westley, Henry, and Dunbar talking on the morning of the robbery. She also saw Westley carrying a large, black pistol similar to Exhibit 17. Bertha Cousan, Henry's sister and another resident of the house, saw Westley carrying a dark, long-barreled pistol which looked like Exhibit 17. She also overheard Westley the night after the robbery relate that he had "wasted this white man," that Henry had been shot, and that Dunbar had died at the bait and tackle shop.

Both Westley and Henry were indicted for capital murder, but were tried separately. At Henry's trial, which was concluded on January 24, 1985, three months prior to Westley's trial, the State dropped the murder charge and Henry was convicted of aggravated robbery.

Westley was tried and convicted of capital murder on May 10, 1985. At the punishment phase of his trial, the State introduced evidence of two similar extraneous offenses. On May 29, 1982, Westley tried to rob the owner of a jewelry store. The owner testified that Westley pointed the gun at his head and pulled the trigger, but the gun did not fire. Westley pulled the trigger a second time shooting the owner in the chest and then fled. On April 3, 1984, Westley and one accomplice robbed a real-estate office. Three victims testified and identified Westley. Two of the witnesses also stated Westley had carried a large, black pistol.

In addition, the State introduced Westley's conviction of burglary after a guilty plea on February 2, 1978. He was given probation which was revoked when he committed a second burglary the day after his guilty plea.

Westley called five witnesses to testify that he was a fun person and had a good reputation for being peaceful and law-abiding. Three of the witnesses emphasized that Westley had grown up in a poor neighborhood. His father, Ellis Miller, testified that Westley was sorry for what he had done. None of the five were aware of his two burglary convictions.

On May 14, 1985, after the jury affirmatively answered the required special issues set out in Art. 37.071(b), V.A.C.C.P., ¹ Westley was sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence; certiorari was denied by the Supreme Court. Westley v. State, 754 S.W.2d 224 (Tex.Cr.App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989).

On October 12, 1989, Westley filed an application for writ of habeas corpus in the state trial court. A special master was appointed to conduct an evidentiary hearing. The master filed his proposed findings of fact and conclusions of law, recommending that Westley be granted relief. The trial court adopted the facts and conclusions and also recommended Westley be granted habeas relief. The Texas Court of Criminal Appeals summarily denied Westley's application. Ex Parte Westley, No. 22,911-01 (Tex.Crim.App. May 6, 1992) (unpublished).

Westley then filed a petition for writ of habeas corpus in the federal district court. Both Westley and the State moved for summary judgment. The district court referred the case to a magistrate who reviewed the state court findings and supporting record and recommended Westley be granted habeas relief. The district court, however, rejected the magistrate's recommendation and entered summary judgment for the State denying habeas relief on July 7, 1995. Westley filed a timely notice of appeal and the district court issued a certificate of probable cause. He appeals the district court's finding on two of his claims: ineffective assistance of counsel and prosecutorial misconduct.

II.

Westley initially argues that he was denied his Sixth Amendment right to effective counsel. The standard for evaluating an ineffective assistance of counsel claim comes from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The habeas petitioner has the burden to demonstrate both (1) that counsel's performance was deficient and (2) that the errors are so prejudicial as to "deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2063.

On the first prong, Strickland stated that "[j]udicial scrutiny of counsel's...