Young v. Stephens, 14–70011.

• Citation: 795 F.3d 484
• Decision Date: 29 July 2015
• Docket Number: No. 14–70011.,14–70011.
• Parties: Clinton Lee YOUNG, Petitioner–Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

795 F.3d 484

Clinton Lee YOUNG, Petitioner–Appellant

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 14–70011.

United States Court of Appeals, Fifth Circuit.

July 29, 2015.

As Revised July 30, 2015.

Margo Ann Rocconi, Esq., Federal Public Defender, Margaret Alice–Anne Farrand, Joseph Anthony Trigilio, Assistant Federal Public Defender, Federal Public Defender's Office, Los Angeles, CA, for Petitioner–Appellant.

Stephen M. Hoffman, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Respondent–Appellee.

Appeals from the United States District Court for the Western District of Texas.

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

Opinion

EDITH BROWN CLEMENT, Circuit Judge.

Petitioner–Appellant Clinton Lee Young (“Young”) was convicted of two murders and sentenced to death. Young's death sentence became final on April 3, 2006, when the Supreme Court denied his petition for a writ of certiorari. Young's habeas petitions, however, continue to be litigated. Now before this court are Young's requests for certificates of appealability (“COAs”) on his “Brady/Napue ,” ineffective assistance of counsel (“IAC”), and cumulative error claims, as well as his appeal of the district court's denial of his motion to stay and to supplement the record. For the reasons that follow, Young's motion for COAs is DENIED. The district court's ruling on his stay and motion to supplement is AFFIRMED.

I.

Young was convicted of capital murder on March 26, 2003, for killing Samuel Petrey and Doyle Douglas in November 2001. He was sentenced to death on April 14, 2003. A brief summary of his crimes follows. On the day of Douglas's murder, Young was with Mark Ray, David Page, Darnell McCoy, and Doyle Douglas. The five men drove in Douglas's car to buy marijuana at a residence in Longview, Texas. When Page returned to the car, having failed to get any marijuana, Young shot Douglas twice in the head at close range with a .22 caliber pistol. Young, Ray, Page, and McCoy—allegedly under threat from Young—then disposed of Douglas's body in a creek, where Ray apparently shot Douglas's dead body in the head.

After the murder Young became concerned that someone might recognize Douglas's car, which Young was driving. To obtain a new vehicle, Young and Page kidnapped Samuel Petrey in a grocery store parking lot and took his truck. A day later, concerned that Petrey could identify them, Young and Page drove Petrey to an isolated pumping station where Young shot and killed him. Young and Page then parted ways and Page reported the crimes to the police. Young was apprehended while driving Petrey's truck. At the time he was arrested he had a .22–caliber pistol in his possession which was later connected to the shell casings found at both murder sites. See Young v. State, No. AP–74643, 2005 WL 2374669, at *1–3 (Tex.Crim.App. Sep. 28, 2005) (detailing the murders).

At trial Ray, McCoy, and Page testified against Young. The prosecution stated that Ray and Page had not been offered any consideration for their testimony, except that Ray received testimonial immunity. After trial, Ray pleaded guilty to kidnapping, and received a fifteen-year sentence. Page pleaded guilty to aggravated kidnapping and received a thirty-year sentence. McCoy was not charged for any crimes related to Douglas's murder.

The Texas Court of Criminal Appeals (“TCCA”) affirmed Young's conviction on direct appeal. On April 22, 2005, Young filed his first state habeas claim while his direct appeal was pending, alleging fourteen errors. The state court held four days of hearings and thereafter recommended denying relief. A few months later Young moved to add eight new claims to his request for relief. The TCCA reviewed the record and concurred with the trial court's recommendation to deny relief; it also dismissed Young's new claims as a subsequent writ application and thus an abuse of the writ under Texas law. Ex Parte Young, No. WR–65137–01, 2006 WL 3735395, at *1 (Tex.Crim.App. Dec. 20, 2006). Young filed a petition for a writ of habeas corpus in the District Court for the Western District of Texas on December 20, 2007. On October 20, 2008, Young filed a motion to stay his federal case in order to return to state court and advance new prosecutorial misconduct claims. Young v. Stephens, No. CIV. MO–07–CA–002, 2014 WL 509376, at *1 (W.D.Tex. Feb. 10, 2014)vacated in part, 2014 WL 2628941 (W.D.Tex. June 13, 2014). The motion to stay was granted on February 25, 2009. Id. at *16. Young then filed his second subsequent petition for writ of habeas corpus with the state court.

Young asserted a variety of claims, including that the government withheld information about Ray and Page's plea agreements (which Young allegedly discovered in 2008) and that his trial counsel was ineffective for failing to prove that Ray and Page shot Douglas. The TCCA certified two issues and remanded the case to the trial court for consideration. Ex Parte Young, WR–65137–03, 2009 WL 1546625 (Tex.Crim.App. June 3, 2009). The state trial court held five days of evidentiary hearings to consider whether the prosecution withheld evidence related to plea negotiations with Ray and Page, as well as whether the prosecution withheld impeachment evidence that could have been used in cross-examination of A.P. Merillat. Ex Parte Young, No. CR27181–C (385th Judicial Dist., Midland County, Texas, May 18, 2011). The state court denied Young's petition for a writ on May 18, 2011, in a thorough 149–page opinion, holding “as a matter of fact that there was no express or implied plea agreement between Mark Ray and the State” or “David Page and the State.” Ex Parte Young, No. CR27181–C at *63–99, 123–140; Young, 2014 WL 509376, at *22. The TCCA affirmed. Ex parte Young, WR–65137–03 (Tex.Crim.App. June 20, 2012).

On October 18, 2012, Young filed his second amended federal habeas petition, which exceeded four-hundred pages. The district court denied this petition on February 10, 2014, issuing a comprehensive two-hundred page opinion. Young, 2014 WL 509376, at *199. The district court considered Young's Brady claim that “the prosecution failed to disclose to petitioner's trial counsel that it had offered prosecution witnesses Page and Ray ‘informal promises of leniency and of favorable plea agreements' ” and that “the prosecution knowingly elicited false testimony from both Page and Ray denying the existence of any promises or deals.” Id. at *26.

First, the district court noted that the state court had already heard “extensive live testimony” and found that there “were no plea agreements or promises of leniency made to either Page or Ray” and that “neither Page nor Ray testified falsely during petitioner's trial.” Id. The court considered the testimony from Young's third state habeas proceeding, where both Ray and his mother testified that Ray was offered a five-year sentence by a Sheriff's Deputy but not a prosecutor, in exchange for testifying against Young. Id. at *17, 28. The district court, however, did not find this testimony credible. The court explained that the relevant prosecutors and investigators denied making any plea offer. Id. More importantly, Ray's trial counsel testified that, though there were some preliminary discussions about a plea agreement, those conversations did not result in an actual plea offer. Id.

The district court also examined Page's testimony at the third state habeas proceeding. Page discussed a possible thirty-year plea deal with the prosecution. Id. at *29. This deal was conditioned on passing a polygraph test, which Page failed. Id. Consequently, Page's trial attorney did not believe that there was any plea agreement for Page. Id. Page's trial counsel testified that though Page hoped he would receive leniency for cooperating, he understood that there was not an enforceable agreement. Id. Further, the prosecution denied making any plea offers to Page. Id.

Based on the foregoing, the district court found that “the state habeas court reasonably rejected as factually flawed petitioner's contentions that either Page or Ray had been offered a plea agreement or that promises of leniency had been made to Ray or Page to induce their trial testimony against petitioner.” Id. at *30. Hence,

petitioner failed to show the existence of any evidence at the time of petitioner's trial concerning secret plea agreements or promises of leniency that could have been used to impeach Ray's or Page's trial testimony. Petitioner's first claim does not satisfy the first or second prongs of Brady analysis, i.e., petitioner has failed to establish that any potentially beneficial information regarding undisclosed plea agreements or promises of leniency made to Ray or Page actually existed at the time of petitioner's trial. In addition, because petitioner failed to establish that Ray or Page furnished any factually inaccurate testimony at petitioner's trial, petitioner's first claim also fails to satisfy the first and third prongs of Giglio/Napue analysis, i.e., petitioner failed to show Ray or Page gave any false testimony or that prosecutors knew Ray or Page testified falsely.

Id.

On June 3, 2014, four months after the district court's denial, Young filed a motion to supplement the district court record with recently obtained statements from James Kemp, Russell Stuteville, Amanda Williams, Pat Brook, and Page.¹ Young also filed motions to alter the judgment, for a COA, and for a stay to return to state court. The district court denied these motions, noting that “[o]ne of the recurrent problems in this cause has been petitioner's refusal to acknowledge the limited scope of this Court's authority in this federal habeas corpus proceeding.” Young, 2014 WL 2628941, at *3. As to Brady , the court found that Young appeared to be attempting to relitigate the district court's ruling. Id. at *18. But, if the claim was actually supported by new evidence, then the...