Wooten v. Thaler

Decision Date02 March 2010
Docket NumberNo. 07-70044.,07-70044.
PartiesLarry Wayne WOOTEN, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit


Robin Norris (argued) (Court-Appointed), Law Office of Robin Norris, El Paso TX, for Wooten.

Carole Susanne Callaghan, Asst. Atty Gen. (argued), Postconviction Lit. Div Austin, TX, for Thaler.

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

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.


Larry Wayne Wooten was convicted of capital murder in Texas and sentenced to death. After his conviction and sentence were affirmed on direct review, Wooten unsuccessfully sought state habeas relief. A federal district court also denied habeas relief in full, though it granted Wooten a certificate of appealability. He complains that late-arriving DNA evidence strengthened the state's case; that had he known of this evidence he would not have gone to trial. Now on appeal, we too find no constitutional infirmity and so AFFIRM the district court's denial of Wooten's petition.


The relevant facts are essentially undisputed. In 1997, a Texas state indictment charged Wooten with capital murder. Central to the state's case was DNA analysis of blood evidence found at the murder scene and elsewhere that would be—if reliable—virtually conclusive of guilt. The trial court directed the prosecution to turn over all DNA analysis and evidence in its possession. The prosecution furnished a preliminary DNA report to defense counsel in May 1997 and a further accounting of DNA evidence in January 1998. Defense counsel obtained their own experts who, on the basis of the evidence proffered thus far, believed the prosecution's DNA evidence unreliable. It was at this point that the prosecution presented Wooten's attorney with a plea deal: if Wooten pled guilty, he would receive a life sentence; if not, he would remain eligible for the death penalty. With his experts telling him that the prosecution's DNA analysis was faulty Wooten rejected the offer and his case proceeded toward trial.

Once jury selection was under way, however, additional data emerged from the DNA laboratory, which made it clear that the laboratory had unintentionally failed to turn over all available DNA evidence. This late-coming data also revealed the prosecution's DNA evidence to be significantly more reliable than initially apparent. Wooten's counsel moved for a continuance to permit their experts time to complete their evaluation. The trialcourt denied that motion, jury selection ended, and Wooten's trial began.

Defense counsel still assumed that they would be able to attack the veracity of the DNA evidence, albeit less convincingly. But, after opening statements were made and some witnesses were called, yet more evidence came in from the laboratory that suggested even that tempered strategy was probably misguided. The district court granted a twelve-day continuance to permit a full analysis by the defense experts. That analysis indicated that any apparent evidentiary flaws were illusory or had been corrected. The jury found Wooten guilty and he was sentenced to death.

Wooten's case and subsequent habeas petition worked their way through the state court, and we now review the district court's denial of his federal habeas petition. The district court granted a certificate of appealability to answer two questions: (1) whether Wooten's right to the due process of law was violated by his being unintentionally misled, at the time of his plea negotiations and trial preparation, into believing that the DNA evidence against him was not as strong as it turned out to be; and (2) whether defense counsel's being misled rendered their assistance constitutionally ineffective.


Wooten's federal habeas petition is subject to the heightened standard of review set forth in the Anti-Terrorism and Effective Death Penalty Act (AEDPA). When reviewing state proceedings, AED PA proscribes federal habeas relief unless the state court's adjudication on the merits (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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding."1 We review the district court's findings of fact for clear error and its conclusions of law de novo, "applying the same standards to the state court's decision as did the district court."2 "A state court decision is 'contrary to... clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases.' "3 "A state-court decision will also be contrary to... clearly established precedent if 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 reme Court precedent."4 "A state-court decision involves an unreasonable application of reme Court precedent if the state court identifies the correct governing legal rule from [the] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case."5 Finally, AEDPA requires us to presume state-court findings of fact to be correct "unless the petitioner rebuts that presumption by clear and convincing evidence."6

Wooten first contends that the prosecution's delay in producing the full weight of its DNA evidence violated his due process rights. No matter how Wooten chooses to characterize this claim, it ultimately "stems from the defendant's 'legitimate interest in the character of the procedure which leads to the imposition of sentence' of death."7 That interest embraces a right to fair notice if the defendant's case proceeds to trial—one that ensures "[a] defendant's right to notice of the charges against which he must defend, "8the right to "[n]otice of the issues to be resolved by the adversary process, "9 and the right to be free from the use of "secret testimony in the penalty proceeding of a capital case which the defendant has had no opportunity to consider or rebut."10

The right to fair notice, however, falls short of imposing a constitutional duty on the state to disclose incriminating evidence, and of course does not require the prosecution to hand over its case on a silver platter. Fair notice of the charges leveled and the issues to be resolved is one thing; any claim to notice of state evidence "stands on quite a different footing"11 because " '[t]here is no general constitutional right to discovery in a criminal case, and Brady, ' which addressed only exculpatory evidence, 'did not create one.' "12 Implicit in this broad principle is the absence of any constitutionally-footed duty to disclose evidence made stronger by state investigative efforts that continue after the defendant's arrest, subsequent to any plea negotiation, or during trial. For example, in Weatherford v. Bursey, the Supreme Court considered the due process claim of a defendant who had been convicted with the aid of surprise testimony of an accomplice who was an undercover agent.13Though the prosecution had not intended to introduce the agent's testimony, it reversed course the day of trial and put the agent on the stand.14 To maintain his cover, the agent had previously told thedefendant and his counsel that he would not testify against the defendant.15 The Court nonetheless declined to find a due process violation because any resulting "disadvantage" at trial, "was no more than exists in any case where the State presents very damaging evidence that was not anticipated."16 As a result, the defendant "must have realized that in going to trial the State was confident of conviction and that if any exculpatory evidence or possible defenses existed it would be extremely wise to have them available. Prudence would have counseled at least as much."17

Recognizing the difficulty of any noticeof-evidence due process claim, Wooten relies largely on Lankford v. Idaho, a bench trial of a capital case where the prosecution did not argue for death but the judge who had said nothing about a possible death sentence gave one anyway, with the observation that he thought the prosecutor too lenient.18 From Lankford, Wooten would extract a principle that "a defendant's critical decisions in a death penalty case are inconsistent with due process of law when based on misinformation furnished, or misimpressions fostered, by representatives of the government." Foregoing any argument that "the State had a constitutional duty under any theory, Brady or otherwise, to disclose the DNA evidence in question, " Wooten claims that, under Lankford "the State's incomplete disclosure of the DNA evidence under the trial court's discovery order was tantamount to a false representation that no other relevant DNA evidence existed." He says this "misrepresentation" led him to reject the plea offer and derailed his defense strategy, which focused on attacking the DNA's reliability.

Lankford found a due process violation because defense counsel was misled as to the issue (and ultimate sentence) to be argued;19 in this case, Wooten was aware of all issues to be considered, but bases his claim on putative defects born in the prosecution's untimely disclosure of inculpatory evidence. That distinction means the world, as the Supreme Court's notice-of-evidence jurisprudence—including Weatherford—demonstrates. Nevertheless, Wooten's argument is not without some merit, for there is a line of authority that leaves open the possibility that a defendant who is deliberately misled as to the full weight and import of the state's evidence might have a cognizable...

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