Williams v. Scott ( 1994 )


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  •                    UNITED STATES COURT OF APPEALS
    for the Fifth Circuit
    _____________________________________
    No. 94-20375
    _____________________________________
    WILLIE RAY WILLIAMS,
    Petitioner-Appellant,
    VERSUS
    WAYNE SCOTT, Director, Texas Department of Criminal Justice,
    Institutional Division,
    Respondent-Appellee.
    ______________________________________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    ______________________________________________________
    (September 30, 1994)
    Before DAVIS, JONES, and DUHÉ, Circuit Judges.
    DUHÉ, Circuit Judge:
    Appellant Willie Ray Williams, a Texas death row inmate,
    appeals the denial of his petition for writ of habeas corpus.      The
    district   court   stayed   Williams's   execution,   granted   summary
    judgment in favor of the State, and granted Williams a Certificate
    of Probable Cause for appeal.    We affirm the summary judgment and
    vacate the stay of execution.
    BACKGROUND
    Willie Ray Williams and Jo Jo Nichols robbed a convenience
    store.   During the robbery, Williams murdered Claude Schaffer Jr.
    by shooting him in the back with a pistol while he was in a
    squatting position behind the counter.       Houston police arrested
    Williams three days later, at which time he voluntarily confessed
    to the murder.
    Williams pleaded guilty to capital murder.        At the punishment
    hearing,   Viola   Ferguson   testified   for   the   prosecution.      She
    identified Williams as having committed an armed robbery of a Taco
    Bell just four days before the murder.1       Williams then testified in
    his defense.     He admitted the Taco Bell robbery, and that he had
    carried    an   automatic   weapon   during   that   holdup.   He    denied
    committing any other armed robberies.         Charlotte Parker, Williams
    former girlfriend, testified for the prosecution in rebuttal.           She
    stated that Williams had committed two other armed robberies before
    the murder and two more afterwards.       She admitted accompanying him
    on two of those occasions.     The jury answered the special issues in
    the affirmative.2     The court then sentenced Williams to death.
    Williams filed this petition for writ of habeas corpus after
    exhausting his state remedies of direct appeal and habeas corpus.
    He raises due process issues under Giglio and Brady, and a claim of
    ineffective assistance of counsel.
    DISCUSSION
    1
    Williams was also convicted of theft in 1977.
    2
    The court submitted the following special issues to the jury:
    "(1) Whether the conduct of the defendant that caused the death of
    the deceased was committed deliberately and with the reasonable
    expectation that the death of the deceased or other would result;
    (2) whether there is a probability that the defendant would commit
    criminal acts of violence that would constitute a continuing threat
    to society; and (3) if raised by the evidence, whether the conduct
    of the defendant in killing the deceased was unreasonable in
    response to provocation, if any, by the deceased."      Tex. Crim.
    Proc. Code Ann. art. 37.071(b) (1981) (amended 1991).
    2
    Summary judgment is appropriate if the record discloses "that
    there is no genuine issue as to any material fact and that the
    moving party is entitled to a judgment as a matter of law."                      Fed.
    R. Civ. P. 56(c).      We review the district court's grant of summary
    judgment de novo.      Weyant v. Acceptance Ins. Co., 
    917 F.2d 209
    , 212
    (5th Cir. 1990).        We consider all the facts contained in the
    summary judgment record and the inferences to be drawn therefrom in
    the   light    most    favorable      to       the   non-moving    party.         
    Id. Nevertheless, in
    the review of a petition for writ of habeas
    corpus, we presume all state court findings of fact to be correct
    in the absence of clear and convincing evidence.                    28 U.S.C. §
    2254(d) (1988); Collins v. Green, 
    505 F.2d 22
    , 23 (5th Cir. 1974).
    I.   Giglio claim.
    Appellant contends that the State violated his right to due
    process under Giglio v. United States, 
    405 U.S. 150
    (1972). Giglio
    requires    the     disclosure   of    material       evidence    affecting       the
    credibility of a witness.        
    Id. at 154.
            The prosecution failed to
    disclose a plea agreement made with Parker's counsel.                A condition
    of the agreement required Parker's counsel not to communicate the
    agreement to Parker before she testified. The district court found
    Parker's testimony to be relevant to special issue number two
    (Williams's continuing threat to society).                Appellant asserts that
    the nondisclosed plea agreement is material impeachment evidence,
    and that failure to disclose it is a due process violation.
    The district court determined that nondisclosure of the plea
    agreement     was   immaterial     because       Parker    was   unaware    of   the
    3
    agreement.        Evidence is "material" if "there is a reasonable
    probability that, had the evidence been disclosed to the defense,
    the result would have been different."             United States v. Bagley,
    
    473 U.S. 667
    , 682 (1985).       Impeachment evidence is not material if
    the witness does not have knowledge of the underlying fact. United
    States v. Nixon, 
    881 F.2d 1305
    , 1309 (5th Cir. 1989); see also
    Willhoite v. Vasquez, 
    921 F.2d 247
    , 249 (9th Cir. 1990).                     On state
    habeas review, the court found that Parker had no knowledge of the
    plea agreement.          We presume that finding to be correct since
    Appellant    has    offered   no     evidence    within       one    of    the   eight
    exceptions to 28 U.S.C. § 2254(d) to refute the finding.
    Appellant relies on Burkhalter v. State, 
    493 S.W.2d 214
    , 218
    (Tex. Crim. App.), cert. denied, 
    414 U.S. 1000
    (1973), for the
    proposition that the witness's knowledge of the plea bargain is
    unnecessary.        We   disagree.      The     Texas    court      held    that   the
    prosecution's non-disclosure of an immunity agreement with the
    witness's attorney violated the defendant's due process rights.
    
    Id. at 219.
        In    Burkhalter,    however,       the    witness      "was   not
    completely in the dark" as to the existence of an agreement; "a
    very real inference not to prosecute" existed.3                     
    Id. at 217.
        In
    contrast, the state court hearing Appellant's habeas petition found
    that Parker was unaware of any agreement between the state and her
    attorney, and the record fully supports that finding.
    3
    In Campbell v. Reed, 
    594 F.2d 4
    , 7 (4th Cir. 1979), the Fourth
    Circuit did not require a witness to have knowledge of the exact
    terms of the agreement to find a due process violation.       The
    witness, however, "well knew that such an agreement did exist."
    
    Id. 4 Williams
    also argues in effect that had he known of a plea
    agreement,   he   could     have    argued   with    more    force   that   Parker
    expected to benefit from her testimony.             We are unable to say that
    Williams's argument has absolutely no merit. If Williams's counsel
    had known of the agreement between Parker's attorney and the
    prosecutor, counsel may have more effectively argued that Parker's
    lawyer had consciously or unconsciously telegraphed to her that a
    deal had been made.       However, we are persuaded in this case that
    the   marginal    benefit    Williams    would      have    obtained   from      this
    additional   fact    would    not    have    changed       the   outcome    of   the
    punishment hearing.       Williams's attorney vigorously cross-examined
    Parker about her motives for testifying.4                  Williams, through his
    cross-examination of Parker, strongly argued that she was expecting
    4
    During cross-examination, Parker was asked:
    Q. [W]hat are you charged with in [this capital murder case]?
    A. Resisting arrest; misdemeanor.
    Q. I beg your pardon? You are not charged with capital
    murder?
    A. No, sir.
    Q. You are not charged with a murder?
    A. No, sir.
    Q. You are not charged with aggravated robbery?
    A. Not in the murder case, no.
    ***
    Q. What has the District Attorney promised you to take the
    stand today and tell these stories?
    A. He hasn't promised me anything.
    Q. But, you haven't been charged . . . with capital murder,
    murder, robbery, aggravated robbery, or anything? Right?
    You have been charged with a misdemeanor?
    ***
    Q. You don't want to go to the penitentiary, do you?
    A. I don't think nobody wants to go to the penitentiary.
    Q. And you would say anything in the world to this jury to
    save yourself in this particular case, wouldn't you?
    R. Vol. III at 657-62.
    5
    compensation from the prosecutor in the form of leniency after
    Williams's trial was over.
    In sum, Parker's ignorance of the agreement substantially
    reduced its impeachment value.         Although disclosure to the jury
    that the prosecutor had made this concession had some marginal
    impeachment value, we are persuaded that under the facts presented
    here its non-disclosure did not affect the jury's verdict.              For
    that reason, Williams's Giglio claim must fail.5
    II.   Brady Claim
    Appellant also contends that the State violated his due
    process rights under Brady v. Maryland, 
    373 U.S. 83
    (1963).           Brady
    requires the prosecution to disclose all exculpatory evidence that
    is material to guilt or punishment.       
    Id. at 87.
      Cindy Ann Johnson
    was an eyewitness to the robbery, but did not testify at the
    punishment hearing.   The prosecution gave the defense a summary of
    her statement that included a cross reference to her full written
    statement.6    Defense   counsel   never    checked    the   full   written
    5
    Our conclusion is further supported by the testimony of Joe
    Cannon, Williams's lead counsel at the punishment hearing, who
    testified at Williams's state habeas hearing. Cannon referred to
    Parker as "a former girl friend who tried to tie [Williams] into
    two or three robberies and we managed to nullify the examination."
    When Cannon talked to some jurors afterwards, he noted that "they
    didn't pay any attention to [Parker]. They considered her an angry
    girl friend." Rather, it was Ferguson's testimony about Williams's
    armed robbery committed a few days before the murder that Cannon
    thought "was so critical and fatal to us." Writ Hearing R. at 70-
    71.
    6
    The summary stated: "She was behind the counter, observed the
    suspects enter the store, order beer and corn dog then pull the
    guns and shoot the complainant. Can identify two suspects. For
    details see written statement."
    6
    statement, which suggested that the victim may have provoked
    Williams relevant to special issue number three.
    A Brady violation does not arise if the defendant, using
    reasonable diligence, could have obtained the information.               United
    States v. Ramirez, 
    810 F.2d 1338
    , 1343 (5th Cir.), cert. denied,
    
    484 U.S. 844
    (1987).         The state court conducting habeas review
    found   that   Appellant      could     have   obtained    Johnson's    written
    statement.     We presume that finding to be correct.                  Because
    Appellant could have obtained the exculpatory statement through
    reasonable diligence, his Brady claim fails.
    III.    Ineffective Assistance of Counsel
    Appellant     contends      that    his   appointed    counsel    did   not
    effectively represent him.            To prove ineffective assistance of
    counsel, Appellant must show that his counsel's performance was
    deficient    and   that    the   deficient     performance    prejudiced     his
    defense.     Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984).
    Appellant raises his Sixth Amendment claim on three fronts:                  (1)
    counsel should have reviewed Johnson's full written statement; (2)
    counsel conducted a faulty voir dire; (3) counsel should not have
    recommended pleading guilty.
    Appellant's claim pertaining to Johnson's statement fails for
    lack of prejudice.        A showing of prejudice requires "a reasonable
    probability that, but for the counsel's unprofessional errors, the
    result of the proceeding would have been different.             A reasonable
    probability is a probability sufficient to undermine confidence in
    the outcome."      
    Id. at 696.
             Johnson testified at the trial of
    7
    Williams's    co-conspirator,        Joseph      Nichols.        The    state    court
    conducting habeas review found that her testimony contradicted her
    written statement.        Furthermore, Johnson testified that her prior
    written statement was incorrect.               Appellant has not provided any
    evidence   to    prove     that    Johnson's      testimony      would   have    been
    different had she testified at Williams's trial.                  The addition of
    Johnson's testimony does not create a reasonable probability that
    the result of the trial would have been different.
    Appellant also contends that his counsel's failure to voir
    dire prospective jurors on the difference between "deliberately"
    and "intentionally" rises to ineffective assistance of counsel.
    Deliberately is the intent element in special issue number one;
    intentionally      is     the     intent       element     for   capital    murder.
    Deliberately is the higher standard.                   See Heckert v. State, 
    612 S.W.2d 549
    , 552-53 (Tex. Crim. App. 1981).                 Thus, Williams could
    plead guilty and still contest special issue number one.
    In determining whether an attorney's performance is deficient,
    we must avoid the distortion of hindsight.                  We must evaluate the
    challenged      conduct    from    counsel's       perspective     at    the     time.
    
    Strickland, 466 U.S. at 689
    .          Voir dire occurred on January 21-22,
    1981.   The Texas Court of Criminal Appeals decided Heckert on
    February 25, 1981.         Thus, at the time of voir dire, no definite
    distinction      between    deliberately         and     intentionally     had    been
    authoritatively expressed. From counsel's perspective at the time,
    counsel's performance at voir dire was not deficient.
    8
    Finally, Appellant contends that his counsel's advice to plead
    guilty was faulty because the guilty plea foreclosed any argument
    on special issue number one.              Appellant now claims that his best
    defense was lack of intent; by pleading guilty he surrendered any
    opportunity      to   contest    intent       at    trial     or    at   the    punishment
    hearing.    For Appellant to succeed on his claim, he must show a
    reasonable probability that one juror would have agreed with him on
    special    issue      number    one.7         The    evidence       of   intent    against
    Williams,     however,     was     overwhelming.                 Williams      voluntarily
    confessed to the murder.                Dolly Jefferson testified that she
    entered the store at the same time as Williams and Nichols.                          After
    she left, she heard a gunshot and saw Williams run from the store
    carrying a tin box, which was the cash register's coin box.                         Two or
    three    other   witnesses      not     called       by    the     prosecution     at   the
    punishment hearing would have placed Williams at the scene of the
    crime.    Williams's own testimony, given during cross examination,
    showed that he shot Schaffer in the back while he was in a
    squatting    position     behind        the       counter.         Williams's     proposed
    testimony on his lack of intent which he now argues he was
    precluded from giving does not undermine confidence in the jury's
    decision on special issue number one.                     His ineffective assistance
    of counsel claim fails for lack of prejudice.
    CONCLUSION
    7
    The Texas capital sentencing scheme requires a unanimous vote by
    the jurors on the special issues to apply a death sentence. Tex.
    Crim. Proc. Code Ann. art. 37.071(d).
    9
    For the foregoing reasons, the district court's grant of
    Summary Judgment is AFFIRMED and its Stay of Execution is VACATED.
    10