Fuller v. Johnson ( 1998 )

Revised November 16, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-41256
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TYRONE FULLER,
Plaintiff-Appellant,
VERSUS
GARY JOHNSON, DIRECTION, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
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October 27, 1998
Before DAVIS, JONES, and DUHÉ, Circuit Judges.
DAVIS, Circuit Judge:
Tyrone Fuller, a Texas death row inmate, appeals the district
court’s denial of his request for federal habeas relief. He raises
several claims in this appeal. We conclude that he has
procedurally defaulted on these claims. In the alternative, we
conclude that his claims are without merit. We therefore affirm
the dismissal of his petition for habeas relief.
I. Facts
Andrea Lea Duke’s body was discovered on her neighbor’s front
steps on January 20, 1988. She had died as a result of multiple
stab wounds to her chest and heart. Before she died, Duke was
severely beaten, raped, and left for dead. She died as she
struggled to reach her neighbor’s house.
Duke was attacked during the burglary of her duplex by John
McGrew, Kenneth Harmon and Petitioner, Tyrone Fuller. The police
recovered a bloody sock print on the hallway tile floor that was
consistent with Fuller’s footprint, but not those of his
codefendants. Blood typing and genetic marker testing of seminal
stains found on Duke’s bed excluded the possibility that Duke’s
boyfriend or either of the codefendants was the donor, but did not
exclude Fuller. DNA testing of seminal stains and hairs recovered
from Duke’s body excluded the possibility that they came from the
codefendants or Duke’s boyfriend, but did not exclude Fuller.
Tyrone Fuller was indicted for the capital murder of Andrea
Lea Duke while in the course of committing and attempting to commit
the offenses of aggravated sexual assault, burglary, and robbery in
violation of TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 1991).
Fuller was convicted of capital murder in March of 1989. The
jurors answered two special sentencing issues in the affirmative,
and the trial court sentenced Fuller to death.
Fuller appealed his conviction and sentence to the Court of
Criminal Appeals of Texas, which affirmed the conviction. Fuller
v. State, 827 S.W.2d 919 (Tex. Crim. App. 1992). Fuller’s petition
for a writ of certiorari was denied by the United States Supreme
Court in June of 1993. Fuller v. Texas, 509 U.S. 922, 113 S. Ct.
3035, 125 L. Ed. 2d 722 (1993). The Supreme Court denied a
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rehearing in August of 1993. Fuller v. Texas, 509 U.S. 940, 114 S.
Ct. 13, 125 L. Ed. 2d 765 (1993).
Fuller filed a state habeas petition, to which the trial court
submitted findings of fact and conclusions of law recommending
denial of the requested relief. The Court of Criminal Appeals
adopted the trial court’s recommendations and denied relief in
January of 1996. Ex parte Fuller, No. 30,127-01. The Supreme
Court denied writs in June of 1996. Fuller v. Texas, 517 U.S.
1248, 116 S. Ct. 2507, 135 L. Ed. 2d 196 (1996).
Fuller filed his first federal habeas petition in April 1996
and then requested leave to file an amended petition. The request
was granted, and Fuller’s amended petition was timely filed in July
of 1996. The district court appointed a magistrate judge to
conduct a hearing and propose findings of fact and conclusions of
law on Fuller’s habeas claims. After conducting an evidentiary
hearing, the magistrate judge entered proposed findings and
conclusions rejecting habeas relief. The district court adopted
the magistrate judge’s findings and conclusions and dismissed the
habeas petition in August of 1997. The district court granted a
Certificate of Probable Cause. Fuller now appeals the district
court’s judgment.
II. Procedure
A. The AEDPA
Because Fuller filed his habeas petition prior to the passage
of the 1996 Antiterrorism and Effective Death Penalty Act, the
regime set forth in that act does not apply to this case. Lindh v.
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Murphy, 521 U.S. 320, 117 S. Ct. 2059, 2063, 138 L. Ed. 2d 481(1997).
B. Procedural Default
Habeas relief will not be granted by a federal court “unless
it appears that the applicant has exhausted the remedies available
in the courts of the State.” 28 U.S.C. § 2254 (1994). The Supreme
Court has held that any petition containing an unexhausted claim (a
“mixed petition”) must be dismissed without prejudice for failure
to exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 510, 102
S. Ct. 1198, 1199, 71 L. Ed. 2d 279 (1982). Fuller's federal
habeas petition included some claims that were exhausted in state
court and some claims that were not. Fuller asked the district
court to dismiss his petition without prejudice so that he could
proceed in state court on his unexhausted claims. The district
court denied Fuller’s request because the unexhausted claims were
procedurally barred in state court and therefore the exhaustion
requirement was met.
Fuller argues that the district court erred in refusing his
request to dismiss the unexhausted claims without prejudice.
Fuller’s argument is without merit. The Supreme Court has held
that the exhaustion requirement only exists with respect to
remedies available at the time the federal petition is filed.
Therefore, the exhaustion requirement is satisfied if such claims
are procedurally barred under state law. Gray v. Netherland, 518
U.S. 152, 161, 116 S. Ct. 2074, 2080, 135 L. Ed. 2d 457 (1996).
See also Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct.
42546, 2557 n.1, 115 L. Ed. 2d 640 (1991); Engle v. Isaac, 456 U.S.
107, 125 n.28, 102 S. Ct. 1558, 1570 n.28, 71 L. Ed. 2d 783 (1982).
Fuller did not raise the claims he asserts before us in his
state habeas petition. We conclude that he is now foreclosed from
bringing these claims in a second habeas petition because of
Texas’s abuse of the writ doctrine.1 Ex parte Carr, 511 S.W.2d
523, 525-26 (Tex. Crim. App. 1974); Coleman, 501 U.S. at 735 n.1,
111 S. Ct. at 2557 n.1.
Fuller argues that Texas did not regularly apply the abuse of
writ doctrine when he filed his state habeas petition in May of
1995, and thus it would not serve as a procedural bar and fulfill
the exhaustion requirement. Although Fuller is correct that a
procedural rule that acts as a bar must be “firmly established and
regularly followed,” Ford v. Georgia, 498 U.S. 411, 423, 111 S. Ct.
850, 851, 112 L. Ed. 2d 935 (1991) (quoting James v. Kentucky, 466
U.S. 341, 348, 104 S. Ct. 1830, 1835, 80 L. Ed. 2d 346 (1984)), we
have previously determined that the abuse of writ doctrine was
strictly and regularly applied at the time Fuller filed his first
habeas petition. Emery v. Johnson, 139 F.3d 191, 195, 201 (5th
Cir. 1997). See also Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.
1995).
In Emery, this Court recognized that although the abuse of
writ doctrine historically had not been strictly and regularly
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Although an abuse of the writ rule was added to the Texas
Rules of Criminal Procedure in 1995, TEX. CODE CRIM. P. ANN. art.
11.071 § 5(c), the doctrine that preceded the adoption of this rule
constitutes adequate grounds to decide this appeal.
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applied, the irregularity was cured in 1994 when the Texas Court of
Criminal Appeals announced that the doctrine would thereafter be
strictly applied. 139 F.3d at 195-96. This panel is bound by
Emery’s precedent. Narvaiz v. Johnson, 134 F.3d 688, 694 (5th Cir.
1998). We therefore reject petitioner’s claim that the abuse of
the writ doctrine was not strictly or regularly applied. Thus,
Fuller would have been precluded from asserting his unexhausted
claims in a successive habeas petition in Texas state court.
Because Fuller could not have sought relief on his claims in
state court, the district court correctly concluded that it need
not dismiss Fuller’s petition without prejudice to permit him to
exhaust these claims. Although Fuller could overcome this
procedural default by demonstrating cause and prejudice for his
failure to bring all claims in his initial state habeas petition,
he made no such argument either to the district court or to this
Court.
Petitioner also argues that the procedural bar cannot operate
to preclude federal review of his claims because he may present
these claims to the Texas Court of Criminal Appeals under that
court's original habeas jurisdiction regardless of any writ abuse.
In September 1995, Texas adopted Article 11.071 § 5(a) of the
Texas Code of Criminal Procedure, which precludes a state court
from considering the merits of claims presented in a successive
habeas application unless predicate facts for a statutory exception
are established.
In Ex parte Davis, the Texas Court of Criminal Appeals,
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sitting en banc, considered whether it had habeas jurisdiction
separate and apart from that referred to in Article 11. 947 S.W.2d
216 (Tex. Crim. App. 1997). A minority of the court answered this
question in the affirmative. We conclude that this minority view
of the Texas Court of Criminal Appeals that it may have the right
to consider a successive habeas petition despite Article 11 does
not demonstrate a change in the strict, regular application of the
abuse of writ doctrine by Texas courts.
Because the claims Fuller brings in this petition are
procedurally barred in state court, these claims are not cognizable
in federal habeas proceedings. In the alternative, however, we
address the merits of these claims.
III. Ineffective Assistance of Counsel
Fuller challenges the district court’s denial of his claim
that his attorney was ineffective. Even were Fuller's claim not
procedurally defaulted, it is meritless.
To demonstrate that his counsel was constitutionally
ineffective, Fuller must make two showings. First, he must show
that his counsel’s performance was deficient--that counsel was not
reasonably competent and counsel’s advice was not “within the range
of competence demanded of attorneys in criminal cases.” Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674 (1984). Second, Fuller must show that his defense was
prejudiced by his counsel’s incompetence. Id.A. Failure to Investigate Juror Boyce Lee Lindsay
Fuller first argues that his counsel was constitutionally
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ineffective because both trial and appellate counsel failed to
raise the issue that one of his jurors had been legally accused of
theft. Juror Boyce Lee Lindsay was charged with theft at the time
he was selected to serve on Fuller's jury. The juror questionnaire
asked whether any juror was ever “charged, arrested, indicted,
convicted or received any type of probation or deferred
adjudication for any criminal offense above the level of a traffic
ticket.” Juror Lindsay replied “No” to this question.
In addition, during voir dire, the court instructed the panel
that if any panelist was under legal accusation for a felony or any
theft offense, the panelist must approach the bench. Juror Lindsay
heard this admonition, but remained silent. Juror Lindsay was
later selected as the twelfth member of the jury. Fuller argues
that had counsel conducted a thorough review of the jurors’
criminal records following the trial, they would have discovered
Lindsay's criminal charge and could have moved for and obtained a
new trial.
We decline to hold that counsel is ineffective under such
circumstances and none of the cases Fuller cites supports a
contrary conclusion. Competent counsel need not engage in such
searching investigations of jurors where no suspicion is raised
about the truthfulness of the juror's responses to questions.
In addition, Fuller has not satisfied the prejudice prong of
Strickland. Even were we to believe that Fuller has demonstrated
that his counsel was constitutionally deficient, Fuller has not
demonstrated how Juror Lindsay’s participation affected the
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reliability or the fairness of his trial.
B. Grand Jury Testimony
Petitioner next asserts that his counsel was constitutionally
ineffective for failing to advise him not to testify before the
grand jury in April 1988. Fuller argues that he was reluctant to
testify, but his counsel advised that if he testified, he might
escape indictment for capital murder. Counsel further advised that
he would have no problems answering the prosecutor’s questions.
Fuller’s counsel stated in her affidavit that she and Fuller
discussed the pros and cons of testifying, and discussed the
possibility that he might be indicted for murder and not capital
murder. Counsel stated that she could not imagine that she told
Fuller that he would have no problems answering the prosecutor’s
questions. Counsel further stated that Fuller was convinced of his
ability to persuade the grand jury that he was not involved in this
case. Ultimately, Fuller made the decision to testify. Counsel
and the prosecutor stated in their affidavits that the information
regarding Fuller at the time of the grand jury testimony indicated
that he was the least culpable of the three potential perpetrators.
Counsel stated that she was negotiating a plea bargain at that
time. Indeed, it was only later, after forensic evidence was
discovered, that the prosecutor concluded that Fuller was the
primary participant.
The district court, after conducting an evidentiary hearing,
found that "the state habeas court's findings are consistent and
comport to the evidence adduced at the [federal] evidentiary
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hearing." The district court then relied on the state court
findings that Fuller knowingly, voluntarily, and intelligently
waived his right not to testify before the grand jury. The state
court further found that Fuller insisted on testifying to the grand
jury, and that at the time of the grand jury testimony, he was
advising his attorneys that he was not involved in the murder or
sexual assault. The trial court also found that counsel did not
tell Petitioner that he would not be indicted for capital murder if
he testified, and did not advise him that he would have no problems
answering the prosecutor’s questions.
We agree with the district court that Fuller made an informed
choice to testify before the grand jury and that Fuller’s counsel
was not constitutionally ineffective for failing to advise Fuller
not to testify in these circumstances. We conclude that the
district court properly dismissed this claim as meritless.
IV. Sixth Amendment Right to Counsel
Fuller argues next that the state violated his Sixth Amendment
right to counsel by refusing to allow his counsel to be present
during the grand jury proceeding. In United States v. Mandujano,
the Supreme Court held that a witness has no constitutional right
to an attorney during grand jury proceedings when criminal
proceedings have not been instituted against the witness and
therefore the Sixth Amendment right to counsel has not attached.
425 U.S. 564, 581, 96 S. Ct. 1768, 1778, 48 L. Ed. 2d 212 (1976).
Because Fuller had not been indicted at the time of his grand jury
testimony, his Sixth Amendment right to counsel had not attached
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and therefore could not have been violated.
V. Juror Lindsay’s Presence and Fuller’s Due Process of Law
Fuller argues finally that the presence of Boyce Lee Lindsay
on his jury deprived him of his rights to due process and a fair
trial. Fuller argues that because Texas law disqualified Lindsay
from service on a jury, the failure to follow such law rendered his
trial unconstitutional. This Court does not review violations of
state law on habeas unless the violation renders the trial as a
whole fundamentally unfair. Engle v. Isaac, 456 U.S. 107, 135, 102
S. Ct. 1558, 1575, 71 L. Ed. 2d 783 (1982). Fuller’s only showing
of unfairness is that the state law was violated. Fuller has not
shown that the failure to follow a state law regarding the
composition of a jury renders the entire trial fundamentally
unfair. Fuller has thus not asserted a claim cognizable in federal
habeas corpus proceedings. Id. at 119, 102 S. Ct. at 1567.
Conclusion
In summary, we conclude that Fuller’s claims are not
cognizable on federal habeas because Fuller procedurally defaulted
on these claims in the state court. In the alternative, the claims
are without merit. We therefore affirm the judgment of the
district court dismissing Fuller’s habeas petition.
AFFIRMED.
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