Camacho v. Johnson ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10598
_____________________
GENARO RUIZ CAMACHO, JR.,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-2539-G)
__________________________________________________________________
April 17, 1998
Before DAVIS, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Genaro Ruiz Camacho, Jr., a Texas death row inmate convicted
of capital murder, seeks a certificate of probable cause to
challenge the district court’s denial of his petition for a writ of
habeas corpus. The certificate is DENIED; the stay of execution,
VACATED.
I.
In 1990, Camacho was convicted and sentenced to death for the
capital murder of David Wilburn. During the guilt phase, as
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
discussed infra, three eyewitnesses testified that they saw Camacho
shoot Wilburn; and the State also presented evidence of Camacho’s
involvement in the murders, a few days later, of Evellyn and Andre
Banks, who had been present when Wilburn was murdered. During the
punishment phase, the State presented evidence that Camacho had
committed two additional murders.
The Texas Court of Criminal Appeals affirmed, Camacho v.
State, 864 S.W.2d 524 (Tex. Crim. App. 1993); and the United States
Supreme Court denied Camacho’s petition for a writ of certiorari.
Camacho v. Texas, 510 U.S. 1215 (1994).
Camacho filed a state habeas application on 20 March 1995. In
mid-April, he moved for an evidentiary hearing; and, in mid-July,
he requested discovery and, again, an evidentiary hearing. On 7
August, less than two weeks after the State filed its answer, the
state habeas court entered findings of fact and conclusions of law
recommending that relief be denied. In early October, in an
unpublished opinion, the Texas Court of Criminal Appeals adopted
those findings and conclusions and denied habeas relief.
Two weeks later, on 23 October 1995, Camacho filed a federal
habeas petition, as well as a motion for stay of execution and an
evidentiary hearing. The district court granted the stay and
appointed counsel. On 24 November, the State filed an answer and
moved for summary judgment. On 26 December, Camacho applied for
funds to employ experts; three days later, he moved for leave to
conduct discovery. In late May 1996, Camacho filed a supplemental
application for funds to employ an expert. On 18 July 1996, the
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magistrate judge denied Camacho’s request for discovery, stating
that the discovery sought constituted an “impermissible fishing
expedition”.
The magistrate judge reported findings of fact and conclusions
of law in early January 1997, thoroughly analyzing Camacho’s claims
in painstaking detail, and recommended that an evidentiary hearing
was not required and that habeas relief be denied. In late April
1997, the district court overruled Camacho’s objections and adopted
the findings and recommendation, with only slight revision.
The district court denied Camacho a certificate of
appealability. But, because Camacho filed his habeas petition
before 24 April 1996, the effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214 (1996), pre-AEDPA law applies. See Green v. Johnson, 116 F.3d
1115 (5th Cir. 1997). Camacho seeks a pre-AEDPA certificate of
probable cause (CPC) from our court.
II.
In his CPC application, Camacho claims that the district court
erred in the following ways:
1. By denying habeas relief on his claims
(a) That he was denied due process of law and a fair
trial by the prosecution’s failure, in several instances, to
disclose evidence favorable to the defense, in violation of Brady
v. Maryland, 373 U.S. 83 (1963);
(b) That he is entitled to a new trial because of newly
discovered evidence which points directly to his innocence of the
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crime for which he was convicted and that, to deprive him of his
life without a jury’s consideration of such evidence, will deprive
him of his life without due process of law;
(c) That the prosecutor’s use of peremptory challenges
to exclude from the jury three members of minority races was based
on racial grounds in violation of the Equal Protection Clause and
Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny; and
(d) That he was denied his constitutional right to a
fair trial by an impartial jury because of the admission of
evidence relating to the murders of Evellyn and Andre Banks four
days after the murder for which he was convicted and sentenced to
death; and,
2. Concomitantly,
(a) By refusing to allow discovery, especially as to a
recantation concerning the newly discovered evidence;
(b) By refusing to conduct an evidentiary hearing; and
(c) By denying funds to employ experts.
Furthermore, except for his Batson claims, Camacho maintains
that, because the state habeas judge neither presided over his
capital murder trial, nor conducted an evidentiary hearing, the
presumption of correctness accorded to state court factual
findings, pursuant to pre-AEDPA 28 U.S.C. § 2254(d), does not
apply. The district court applied AEDPA in denying habeas relief;
but, as discussed, we must, instead, consider Camacho’s CPC motion
under pre-AEDPA law. Nevertheless, we will, for purposes of this
opinion, assume that the presumption does not apply (except, as
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discussed infra, with respect to Camacho’s Batson claims, as to
which there are findings of fact by the trial judge).
To obtain a CPC, a habeas petitioner must make “a substantial
showing of the denial of a federal right”. Lucas v. Johnson, 132
F.3d 1069, 1073 (5th Cir. 1998) (internal quotation marks and
citation omitted). “This standard does not require petitioner to
show that he would prevail on the merits.” Drew v. Collins, 5 F.3d
93, 95 (5th Cir. 1993), cert. denied, 510 U.S. 1171 (1994).
Instead, the petitioner must “demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate
to deserve encouragement to proceed further.” Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983) (emphasis in original; internal
quotation marks and citation omitted).
Because several of Camacho’s claims require consideration of
the trial testimony of certain witnesses, that evidence, as
presented by individual witnesses, rather than described
collectively, is stated in considerable detail as a backdrop to our
consideration of Camacho’s CPC application. The facts are also
summarized in our court’s opinion affirming Camacho’s federal
kidnaping conviction; on appeal from that conviction, Camacho
raised some of the same claims he asserts now as the basis for
federal habeas relief. See United States v. Jackson, 978 F.2d 903
(5th Cir. 1992), cert. denied, 509 U.S. 930 (1993).
Sam Junior Wright testified for the State as follows. On 20
May 1988, at approximately 8:00 a.m., he and his three-year-old
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son, Andre Banks, were upstairs in his residence at 7927 Nassau
Street, in the Pleasant Grove area of Dallas, Texas. Wright lived
there with Evellyn Banks (Andre’s mother) and her two sons, who had
already left for school. After hearing Evellyn Banks, who was
downstairs at the time, cry out, Wright looked downstairs and saw
a black man, whom he did not recognize, and another man, whom he
recognized from prior drug-related dealings as “Gino”. (At the
time, Wright did not know “Gino’s” last name; Dallas Police and the
FBI later identified him as the petitioner, Genaro Camacho. The
black man was later identified as Juan Jackson.)
The black man ordered Wright and his son downstairs. When
Wright got there, he saw a white man (later identified as George
David Cooke) whom he had never seen before. Another “white guy”
(later identified as Larry Gene Merrell, referred to in the record
as an “Indian”), whom Wright also had never seen before, came in
through the back door. Gino did not have a weapon, but the other
three intruders were armed. Gino (Camacho) asserted that Wright
owed him $20,000, and stated that, if Wright did not get the money,
he would kill Evellyn and Andre Banks. Gino then hit Wright.
Upon hearing a knock at the door, Gino took a .357 Magnum from
one of his accomplices and stood behind the door. David Wilburn,
Wright’s driver, entered the house. Gino ordered Wilburn to lie
face-down on the floor, and shortly thereafter shot him in the back
of the head. Gino told one of his accomplices to handcuff Evellyn
Banks.
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Wright escaped through the front door while the intruders were
distracted by the sound of the back door slamming. He saw a
neighbor, and shouted to her to call the police. He eventually
went to Evellyn’s mother’s home and told Evellyn’s brother what had
occurred. Evellyn’s brother went to Wright’s house and gave the
name “Gino” to the police. Wright later called the FBI and, after
his subsequent arrest (for failing to appear for sentencing on a
1985 drug conviction), gave a statement to the FBI. At the time of
trial, Wright was serving a 22-year sentence in a federal
institution for the 1985 drug conviction and for failing to appear
for sentencing. On cross-examination, Wright testified that he had
moved for reduction of sentence, but that the motion had not yet
been heard.
One of Evellyn Banks’ sons, Cecil DeWayne Banks, identified
Camacho in court and testified that he had seen Camacho at the
Nassau residence on about four occasions prior to the day of the
incident, 20 May 1988; and that Camacho never came alone, but
usually was accompanied by at least two or three other men.
Evellyn Banks’ brother, Darrell Anthony Banks, testified that he
met Camacho at the Nassau house; and that on one occasion Camacho
mentioned that Wright owed him money.
Sabrina Wilson testified as follows. In May 1988, she lived
across the street from Wright’s house. Around 8:30 a.m. on 20 May
1988, when crossing the street after leaving a friend’s house, she
saw a white car, and Wright shouted at her to call the police,
because the people in the car had tried to kill him. She saw a
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driver and passenger, but did not know if anyone was in the back
seat. Wilson was six to eight feet from the driver’s side of the
car, and got a close look at the driver, whom she identified in
court as Camacho.
After calling the police, Wilson went to work. A detective
showed her some photographs the next day (21 May), and she
identified Camacho’s photograph. (Outside the presence of the
jury, in an identification hearing, Wilson testified that she was
shown the photographs “within a day or two” after the incident.)
Retired Dallas Police Officer L. C. Lake testified that, while
on patrol, he was called to Wright’s house; that he observed the
burglar bars opened, the front door ajar, and a cut chain and
padlock on the ground; and that, inside the front door, he saw a
black male who appeared to be dead.
Dallas Police Detective Michael W. Black testified that he
responded to the call on Nassau on 20 May 1988; that a chain had
been cut off the burglar bars on the front porch and pieces of the
chain were on the ground; that the front door had been forced open,
and pieces of the door frame were in the living room inside the
front door; that Wilburn’s body was face-down in the living room
just inside the front door; that the bullet entered the lower part
of the back of Wilburn’s head and exited through his cheek; that
bullet fragments were found on the rug just beneath Wilburn’s head,
and a large bullet fragment was on the carpet three feet from
Wilburn’s head; that it appeared to have been an execution-type
killing; that drugs and drug paraphernalia were found in the house;
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and that the fingerprints found at the scene were not identified as
those of any of the individuals arrested.
Following a competency hearing outside the presence of the
jury, accomplice George David Cooke testified as follows. Around
6:00 a.m. on 20 May 1988, Camacho awakened him and said that he
wanted Cooke to go with him “to collect some money”. Cooke,
Jackson, and Merrell traveled to Wright’s house in a white Lincoln
driven by Camacho. Jackson, who was riding in the front passenger
seat, took two semiautomatic pistols and a .357 Magnum from a bag
under his feet and distributed them. When they arrived at Wright’s
house, pursuant to Camacho’s orders, Jackson cut the lock on the
burglar bars around the front porch; and Merrell went around the
side of the house and cut the telephone lines. Camacho kicked the
front door open. At some point, the .357 Magnum was handed to
Cooke. Jackson brought Sam Wright and Andre Banks downstairs, and
Camacho asked Wright what happened to his money. Camacho mentioned
that he had “left his boy” (referring to heroin) with Wright.
Upon hearing a knock at the door, Camacho stepped behind the
door and opened it; Jackson told the person at the door (Wilburn)
to come in. Camacho shut the door behind Wilburn, got the .357
Magnum, ordered Wilburn to get on his knees, patted him down, and
then ordered him to lie face-down on the floor. Camacho told
Jackson to shoot Wilburn if Wilburn moved or spoke. After
questioning Wright again about the money Wright owed him, Camacho
walked over to Wilburn, put the gun to the back of his head, and
shot him. After further questioning of Wright about his money,
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Camacho ordered Jackson to handcuff Evellyn Banks, and said that
“we had to take them all with us”. As they were leaving the house,
Wright ran away. Camacho, who was driving, ordered Jackson to get
Wright, but Jackson said he could not catch him. As they were
driving away, they saw Wright running across a field and Camacho
told Jackson to shoot him, but Jackson said he was too far away.
Cooke testified that the captives were taken to a Dallas
apartment he rented with Eddie Blaine Cummings. After three days,
Camacho, Cooke, Spencer Charles Stanley, and Evellyn and Andre
Banks traveled to Oklahoma in Cooke’s car. Stanley had given Cooke
a list of items that he wanted Cooke and Camacho to buy before the
trip, including “tape, a knife, pillow, some lime ... and some
rope”. The group went to a motel in Ardmore, Oklahoma, arriving
after midnight. Stanley left to “dig a hole”. Camacho assured
Evellyn Banks that he had ordered an airplane to be flown to an
airstrip, and that he would see that she and Andre Banks were flown
“somewhere where she had some relatives”.
Cooke testified further that, at approximately 10:00 p.m. that
night, Camacho, Cooke, Stanley, and Evellyn and Andre Banks left
the motel, ostensibly to go to the airstrip. After driving to a
remote area, the group walked through some woods, following
Stanley, who was carrying Andre Banks on his back, to the grave
Stanley had dug. Stanley threw Andre Banks into the grave and shot
him, and then shot Evellyn Banks. Camacho ordered Stanley “to use
the rest of the bullets” on Andre Banks, who was “still making some
noises”.
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After burying Andre and Evellyn Banks, Camacho, Stanley, and
Cooke drove to Lake Texoma to dispose of the shovel, pickaxe, and
weapon before returning to the motel in Ardmore. They were joined
there by Cummings and Pamela Miller; and then all of them returned
to Dallas.
Cooke testified that he had been arrested on 15 August 1988,
and charged with two counts of aggravated kidnaping. After his
arrest, he led the FBI to the grave of Evellyn and Andre Banks. At
the time of the state trial, he had entered a guilty plea in
federal court and was to be sentenced approximately a month later,
in mid-May 1990. He had also been indicted as an accomplice to
murder and kidnaping in Dallas County, and intended to plead guilty
to those charges.
On cross-examination, Cooke testified that he and Cummings
rented the car that was used to drive to Wright’s house on 20 May
1988; that he purchased the semiautomatic weapons used at Wright’s
house; and that he rented the motel room in Oklahoma. He was
initially charged with capital murder, but that charge was later
reduced to murder. Pursuant to his plea agreement for the
aggravated kidnaping charge in federal court, his sentence was to
be capped at 24 years, although the maximum punishment for that
offense is life imprisonment.
Another accomplice, Larry Gene Merrell, also testified for the
State. In most respects, Merrell’s testimony about the events at
Wright’s house was consistent with Cooke’s. However, according to
Merrell, Cooke (rather than Jackson) distributed the weapons in the
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car; Merrell (rather than Camacho) opened the door for Wilburn; and
Merrell (rather than Camacho) was standing behind the door.
Merrell’s testimony was also consistent, for the most part, with
Wright’s testimony; however, Merrell testified that he entered
Wright’s house through the front door (rather than the back, as
Wright testified). Merrell testified further that he saw Camacho
shoot Wilburn in the back of the head; and that he went back to
Oklahoma on the Sunday following the murder (22 May) and did not
see Camacho or the kidnaped victims again.
Merrell had been arrested on 16 September 1988, and made a
statement to the FBI. At the time of the state trial, he had
pleaded guilty in federal court to one count of kidnaping and was
awaiting sentencing; and he intended to plead guilty to a Dallas
County kidnaping charge. On cross-examination, Merrell testified
that, pursuant to his plea bargain, he was subject to a maximum
punishment of eight years.
FBI Special Agent Tase Bailey testified regarding the
investigation and arrests of the suspects, as follows. On the
evening of 21 May, FBI Agent Figueroa contacted him and advised
that he had developed the name of a suspect. At that time, they
knew only that the suspect was named “Gino” and that he had been
arrested previously by another police department. The next
morning, 22 May, they determined that the suspect’s name was Genaro
Camacho. They obtained a photograph of Camacho, and Dallas Police
conducted photographic line-ups. They were also trying to identify
a white male, a black male, and possibly another Hispanic male.
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Agent Bailey testified that Cooke led investigators to the grave of
Evellyn and Andre Banks, and to the location where the weapon used
to murder them had been thrown into Lake Texoma.
On cross-examination, Agent Bailey testified that Cummings and
Cooke were close associates; that Cummings selected the car used in
the kidnaping and ordered Cooke to purchase the semiautomatic
weapons; that Cooke stated that the handcuffs used on Evellyn Banks
were obtained from Cummings; that Cummings offered jewelry, which
he had stolen from his mother, to Cooke in exchange for the
weapons; and that Merrell and Stanley were hometown friends of
Cummings. On redirect examination, Agent Bailey testified that the
reason Camacho, Cummings, and the others came together in Dallas
was narcotics activity — Camacho was related to persons in Mexico,
and they planned to fly marijuana into the Dallas area and
distribute it from there; and that, when Camacho was arrested on 31
March 1989, as he came across the bridge from Mexico into McAllen,
Texas, he used the name “Tomas Sanchez”.
The defense case consisted of further cross-examination of
Wright, Agent Bailey, and Cooke. When Cooke and Wright were asked
to demonstrate how Camacho shot Wilburn, Cooke indicated that
Camacho held the gun in his left hand; Wright, that Camacho used
his right.
The defense also presented the testimony of a Tarrant County
probation officer and a psychologist. The probation officer
testified that Wright had been placed on probation in 1981 for
unlawful possession of a controlled substance (78 pounds of
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marijuana); that he had failed to report to the probation office at
least 10 times; and that his probation had never been revoked. The
psychologist testified that, after conducting a series of
psychological tests on Cooke, at the request of Cooke’s attorney,
he determined that Cooke was insane on 20 May 1988, and that
Cooke’s “recollection of facts is ... very problematical ...
[because] he has delusional disorder problems”. The defense theory
was that Wright and Cooke were not credible witnesses, and that
someone other than Camacho shot Wilburn.
Cummings testified as a rebuttal witness for the State, as
follows. He met Camacho about two months prior to Wilburn’s
murder, and he and Camacho discussed “making some big money” by
flying marijuana into the United States from Mexico. On 20 May
1988, he and Pamela Miller were at the apartment when Evellyn and
Andre Banks were brought there by Camacho, Cooke, Merrell, and
Jackson. Camacho told him that he (Camacho) had ordered Cooke to
kill “the man”, but that Cooke could not follow orders, so he
(Camacho) had to “kill the man”. Although Camacho had discussed
killing Merrell, it was agreed that Cummings would take Merrell
back to Oklahoma and would try to locate an airplane to use in
transporting Camacho to Mexico and then in transporting marijuana.
Cummings had been arrested on 5 August 1988, and indicted in
federal court as an accessory; had pleaded guilty; and was awaiting
sentencing.
FBI Special Agent Jose Figueroa also testified as a rebuttal
witness for the State, as follows. On 20 May 1988, he received a
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call from the Dallas Police about the murder and kidnaping. He
went to the neighborhood and spread the word that he needed to talk
to Wright as soon as possible. On 21 May, at approximately 10:00
p.m., Wright called him and stated that the shooter was named
“Gino”. On 22 May, based on information provided by Wright in the
21 May telephone conversation, he learned that “Gino” was Camacho.
After Wright was arrested, Agent Figueroa interviewed him and
showed him a photographic spread, from which Wright identified
Camacho’s photograph. On cross-examination, Agent Figueroa
testified that there is no physical evidence that ties Camacho to
Wright’s house or to the grave site in Oklahoma.
Finally, Jeaneene Elizabeth Wallace testified as a rebuttal
witness for the State, as follows. Her friend, Cummings,
introduced her to Camacho. In early May 1988, she was with
Camacho, who was angry, and who “said that this man had owed him a
lot of money, like $8,000.00, and then he grabbed me by the throat
and he stuck his thumb in my throat and he said he was going to
kill this man and his family because he grew good coca and he grew
good marijuana and that this man owed him money”.
A.
Camacho contends that the prosecution violated Brady by
failing to disclose: (1) the full extent of Cooke’s plea bargain
agreement with the State; (2) that the State’s original theory
involved three, rather than four, suspects, as reflected in the
initial prosecution report prepared by Dallas Police Officer T. J.
Barnes; (3) the affidavit of James Scott, who witnessed some of the
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events surrounding the murder, and the fact that Scott identified
someone other than Camacho from a photographic lineup; (4) that
Jane Wallace did not identify Camacho from a photographic lineup as
being at Wright’s house on 20 May 1988; and (5) that Rose Wallace
was coerced by police to make a positive identification of Camacho
when she was shown a photographic lineup. (Camacho asserted a
similar Brady claim on appeal from his federal kidnaping
conviction. See United States v. Jackson, 978 F.2d at 912.) For
these Brady claims, Camacho maintains that the district court also
erred by denying his discovery and evidentiary hearing requests.
As is well-known, “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution”. Brady, 373
U.S. at 87 (emphasis added). In United States v. Bagley, 473 U.S.
667 (1985), a majority of the Court held that, regardless of
whether requested by the accused, favorable evidence (exculpatory
or impeachment) is material “if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different”. Bagley, 473 U.S. at 682
(opinion of Blackmun, J.); id. at 685 (White, J., concurring in
part and concurring in judgment). And, in Kyles v. Whitley, 514
U.S. 419 (1995), the Court emphasized that Bagley materiality “is
not a sufficiency of the evidence test”, id. at 434; and that, in
determining materiality, the suppressed evidence must be
“considered collectively, not item-by-item”. Id. at 436. We
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review the Brady ruling de novo. See East v. Johnson, 123 F.3d
235, 237 (5th Cir. 1997).
1.
Before considering, collectively, the materiality of the
allegedly undisclosed items, Camacho’s contentions and the prior
proceedings with respect to each of the items are summarized.
a.
Camacho contends that the State’s failure to disclose the
extent of eyewitness Cooke’s plea bargain agreement with the State
violated his rights under the Fifth, Sixth, and Fourteenth
Amendments, because the full extent of the agreement was critical
to a determination of Cooke’s credibility. Concomitantly, he
asserts that the district court erred by denying his request to
depose Cooke about Cooke’s understanding of the plea agreement, and
by denying his request for an evidentiary hearing to resolve
disputed factual issues which were not fully and fairly resolved in
state court.
At a pretrial hearing on 19 February 1990, before the
commencement of testimony in Camacho’s capital murder trial, the
attorney who represented Cooke in federal court testified that his
understanding of the state plea bargain agreement was that it was
for a life sentence; the attorney who represented Cooke on the
state charges, that he had no knowledge regarding the agreement.
As stated, Cooke testified at trial that his agreement with
the State was that he would not be charged with capital murder and
would receive a life sentence in exchange for his guilty plea to
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kidnaping and murder. And, at the close of the State’s case-in-
chief, the prosecutor stated that Cooke had agreed to plead guilty
to the Dallas County charges and that, in exchange for his plea,
the State had agreed that, if Cooke testified truthfully, it would
recommend a life sentence to be served concurrently with any
sentence previously imposed in federal court. When Cooke was
recalled by the defense, he testified that he was “exposed to two
life sentences in the state”.
Approximately a month after trial, in June 1990, Camacho moved
for a new trial, alleging that, in return for his testimony, Cooke
had received additional promises from the State that were not
revealed to defense counsel and were not presented to the jury. At
a hearing on the motion, Camacho introduced a 10 May 1990 letter
(dated two days after Camacho was sentenced to death), from Hugh
Lucas, lead counsel for the State at Camacho’s trial, to Dennis
Brewer, Cooke’s lawyer on the federal charges, to which was
attached a page outlining the State’s plea agreement with Cooke.
The attachment stated that Cooke had not been indicted for capital
murder; that the State agreed to recommend a life sentence,
concurrent, on the Dallas County case; that, upon discharge of
Cooke’s federal sentence, or the expiration of 20 calendar years,
whichever is greater, the State would recommend parole and that
Cooke be released from incarceration; and that, after the
expiration of 30 calendar years, the State would recommend that
Cooke be discharged from all Dallas County sentences.
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Camacho’s trial counsel, Joseph Montemayor and Julius
Whittier, testified that they did not learn of the entire agreement
until after Camacho was sentenced to death. On the other hand,
Brewer (counsel on federal charges) testified that the attachment
to Lucas’ 10 May letter reflected his understanding of the
agreement between Cooke and the State; and that the agreement had
been reached prior to Cooke’s testimony in Camacho’s trial. When
asked by Camacho’s counsel if it was a “substantial benefit” for
the State not to oppose parole eligibility, Brewer testified that
“it’s a terrible detriment ... if the State does oppose it ...
compared to the other alternative I guess it would be considered a
benefit.”
Lucas testified that he never agreed to recommend parole for
Cooke; that the 10 May letter was prepared hurriedly, in response
to a request by Brewer, who needed the letter in federal court that
day, and mistakenly included the terms regarding parole
recommendation; that he was out of town when Cooke entered his
guilty plea, and did not have an opportunity to correct the
agreement; and that Cooke’s testimony at trial set out the plea
agreement as he believed it to be at that time.
Edwin King, Cooke’s attorney in state court, testified that
the plea agreement was that Cooke was going to get a life sentence;
and that he never saw Lucas’ 10 May letter until the day Cooke
entered his guilty plea in state court. King testified further
that, in his opinion, the State’s recommendation regarding parole
was not “worth the paper it’s written on”, but that “it made
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Cook[e] feel better”; that he told Cooke that the agreement was
that he was going to get life sentences, concurrent, and that, at
a minimum, the State would not oppose his eligibility for parole;
that both he and Brewer told Cooke that any parole decision would
be made by the Board of Pardons and Paroles, not by the Dallas
County District Attorney’s Office; and that the State’s agreement
not to oppose parole eligibility “wasn’t so important that [Cooke]
would have changed his mind”, because Cooke was more concerned
about his federal sentence.
Cooke, who was incarcerated in Oklahoma at the time, did not
testify at the hearing on the new trial motion, because Camacho’s
counsel was unable to secure his presence. (There is no indication
in the record that Camacho’s counsel sought a continuance of the
hearing in order to obtain Cooke’s testimony.) At the conclusion
of the hearing, the trial court denied the motion.
The state habeas court concluded that Camacho was procedurally
barred from raising the issue of whether the State failed to reveal
the extent of Cooke’s plea agreement, because he did not raise the
issue on direct appeal. Alternatively, it found that Camacho
failed to prove that an agreement existed outside the papers signed
in Cooke’s case.
The district court held that disclosure of the State’s
agreement to recommend parole was not required, because those terms
did not become part of the plea agreement until after Camacho’s
trial ended; and that, although the State had agreed, prior to
Cooke’s testimony, that it would not actively oppose parole for
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Cooke at the end of his federal sentence, such agreement was not
required to be disclosed because it was immaterial. The court
rejected Camacho’s request for an evidentiary hearing, stating that
Cooke’s testimony was unnecessary, because “the record makes it
clear that no Brady violation occurred”.
b.
The next claimed Brady violation is not disclosing the initial
prosecution report of Dallas Police Officer T. J. Barnes, which
reflects the State’s initial theory that the offense involved three
perpetrators. Camacho asserts that Barnes’ report, which states
that Wright could testify that three men entered his house, could
have been used to impeach Wright’s trial testimony that four
entered. And, again, he contends that the district court erred by
denying his discovery and evidentiary hearing requests on this
issue.
The state habeas court rejected this claim, after making
detailed findings; for example, that the State’s initial theory was
readily available to the defense through medical reports, and
because the substance of Barnes’ report was identical to the
affidavit supporting the arrest warrant (a public record).
The district court held that Wright’s trial testimony that
three men were in his house when he was forced downstairs, and that
a fourth entered later, was consistent with the statement in
Barnes’ initial report that Wright could testify that Camacho and
two other men broke into his house. It concluded that, in the
light of Cooke’s and Merrell’s testimony, which corroborated
- 21 -
Wright’s testimony that four men entered and that Camacho shot
Wilburn, the collateral nature of the alleged contradiction between
Barnes’ report and Wright’s testimony compelled the conclusion that
the undisclosed impeachment evidence was not material.
c.
The prosecution is claimed to have also violated Brady by
failing to disclose the affidavit of James Scott, given to Dallas
Police on the day of the incident, 20 May. Camacho asserts that
Scott’s testimony would have been favorable to him, because Scott
saw only three men leave Wright’s house, and because Scott saw a
black man driving the car away from Wright’s house, which would
have contradicted Sabrina Wilson’s testimony that Camacho was
driving.
Scott’s 20 May affidavit states that he saw a Mexican man, a
white man, and a black man at Wright’s house that morning; that he
saw three men drag Evellyn Banks and her son to the car and put
them in the back seat; that the white man and the Mexican man sat
in the back seat with Evellyn and Andre Banks; and that “the
colored man” drove.
Scott did not testify at Camacho’s capital murder trial, but
he testified for the defense in Camacho’s federal kidnaping trial.
Consistent with his affidavit, he testified that he saw three men
arrive at, and leave from, Wright’s house on 20 May 1988; and that
the black man was driving the car as it left. He described the
Mexican man as having “sort of long” hair, “back on his neck”.
- 22 -
But, when asked at the federal trial whether there was any
question in his mind about who was driving the car, Scott replied:
“That’s what I thought. I was scared because I didn’t want to get
too close.” And, when then asked whether he saw only three men
get into the car, Scott stated: “That’s all I seen. It may have
been more, but that’s what I seen go to the car.” When the car
came back around the block, Scott did not know whether the black
man was still driving.
Scott testified further at the federal trial that a detective
showed him some photographs of some “Spanish” individuals the next
day, and he indicated to the detective the man he thought he had
seen, but the detective told him he had picked the wrong one. On
cross-examination, Scott testified that he did not see the men
drive up and did not see how many people got out of the car; and
that Sabrina Wilson was in a position to see who was driving.
In its response to Camacho’s state habeas application, the
State submitted the affidavit of prosecutor Lucas, in which he
stated that he interviewed Scott in April 1990, prior to Camacho’s
state trial, and that Scott told him he was shown a photographic
lineup and could not identify anyone.
The state habeas court rejected this claim, with extensive
findings; for example, that Scott’s identity as a potential witness
was disclosed to the defense; that any inconsistency between
Scott’s affidavit and the statements of other witnesses was not
material, because Scott was equivocal in his identification of the
driver of the getaway car, and his testimony did not exclude
- 23 -
Camacho from being present at, and responsible for, the murder;
that Scott’s testimony that he was shown a photographic lineup was
not credible; but that, even if he had been shown the lineup, the
fact that he may have identified someone other than Camacho was not
exculpatory, because Scott did not witness the murder and was not
called as a witness.
Likewise, the district court held that Scott’s affidavit was
not inconsistent with the state trial testimony that three men
entered the front door of Wright’s residence, while the fourth went
around the side of the house to cut the telephone line. It stated
that, because three eyewitnesses testified that they saw Camacho
shoot Wilburn, and because Scott testified at Camacho’s federal
trial that, although he only saw three men come out of the house,
there may have been more than three men involved, Scott’s affidavit
was not material.
The district court stated further that Scott’s statement
regarding the driver was not material to whether Camacho murdered
Wilburn. It noted also that Scott testified at the federal
kidnaping trial that he “thought” the black guy was driving, but
was scared and did not want to get too close, and that Wilson’s
testimony that Camacho was driving was corroborated by the
testimony of Merrell and Cooke that Camacho drove the car to and
from Wright’s house.
The district court concluded that Camacho had failed to
overcome the presumption that the state habeas court’s findings
regarding whether Scott was shown a photo spread and did not
- 24 -
identify Camacho were correct. Finally, it held that the
information in Scott’s affidavit could have been discovered through
the exercise of reasonable diligence, because Scott’s name was
provided to defense counsel in the State’s first witness list,
filed 15 December 1989.
d.
The fourth Brady claim is for not disclosing that Jane
Wallace, who did not testify at Camacho’s capital murder trial, had
failed to identify him as one of the perpetrators. Jane Wallace
testified for the defense in Camacho’s federal trial that, on the
morning of 20 May 1988, she saw a “Mexican” at Wright’s house, but
could not see his face because his back was turned toward her; and
that she thought she saw four to five men coming out of Wright’s
house.
She testified further that a detective showed her some
photographs; that, when asked if she had ever seen any of the men
in the photographs, she pointed out Camacho’s photograph, and
signed the back of it, but she did not tell the detective where she
had seen the man before, because he did not ask; and, that she
recognized Camacho’s photograph because she had seen him at
Wright’s residence on previous occasions, but she did not see him
there on the morning of 20 May 1988. She testified further that
she did not remember seeing Camacho that morning, but that he could
have been there.
The state habeas court found that Jane Wallace’s testimony was
not exculpatory, because she did not claim that Camacho was not
- 25 -
present at Wright’s house on the morning of the offense; and that
her identity was disclosed to the defense prior to trial.
The district court held that Brady does not require the
disclosure of such evidence, because Jane Wallace did not tell the
police when she had seen Camacho at the time she identified his
photograph; accordingly, the State did not know that Jane Wallace
identified Camacho’s photograph because she had seen him at
Wright’s house on occasions prior to the murder, but that she did
not see him there on the morning of the murder.
Camacho contends that the district court’s conclusion is
contradicted by Detective Barnes’ investigative notes, which state
that “Jane Wallace ... identified Camacho and said she had seen him
at Sam’s house numerous times before”. He asserts that he is
entitled to an evidentiary hearing to resolve the factual dispute
regarding whether the police knew the basis for Jane Wallace’s
identification of Camacho.
e.
The final Brady claim is for failing to disclose that Rose
Wallace had been coerced into identifying Camacho’s photograph.
Camacho asserts that her testimony would have been favorable to his
defense, because it would have discredited the police investigation
of the State’s theory of the case; alternatively, that reasonable
jurists could disagree on whether her testimony would be favorable,
and that the questions surrounding this evidence, including the
display of the photographic spreads, are at least adequate to
deserve encouragement to proceed further (obtain CPC).
- 26 -
Rose Wallace did not testify in Camacho’s capital murder
trial, but she testified for him at his federal trial, as follows.
On 20 May 1988, she saw Evellyn Banks in handcuffs sitting in the
car by herself, but did not see Andre Banks; she saw two men
outside Wright’s house; and she had seen “the Mexican guy” in the
newspaper (as discussed below), but he had his back toward her.
Later, a police officer showed her three photographs and asked her
if she could identify anyone. She told him that she could not,
because the man had his back to her. The officer told her she had
to pick one, and showed her which photograph to pick. Although she
signed the back of Camacho’s photograph, she did not know if the
man she saw at Wright’s house was Camacho; the photograph she
signed was the same one that was in the newspaper.
In response to Camacho’s state habeas application, the State
submitted the affidavit of Detective Barnes, who stated that
Camacho’s photograph did not appear in the newspaper until after
Rose Wallace identified it.
The state habeas court found that Rose Wallace’s allegations
of coercion were not credible, and that Camacho had failed to prove
that any coercion was exculpatory, because Rose Wallace was not
called as a witness in his capital murder trial.
The district court held that, because Rose Wallace did not
testify at Camacho’s capital murder trial, her forced
identification was not favorable to his defense, because he could
not use the evidence to impeach her. The court stated further that
her testimony would not have materially helped Camacho’s defense,
- 27 -
because she testified at the federal kidnaping trial that she could
not identify the Hispanic male who was present at Wright’s house on
the day of Wilburn’s murder, because his back was toward her.
2.
As discussed supra, we assume that the presumption of
correctness does not apply to the state habeas court’s underlying
factual findings on the Brady claims. In addition, we assume that
Camacho’s claim regarding Cooke’s plea agreement is not
procedurally barred. Nevertheless, considering the allegedly
undisclosed evidence collectively, we conclude that Camacho has not
shown that there is a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been
different.
We agree with the district court that Camacho has not shown
that the State suppressed an agreement to recommend parole or
discharge for Cooke, because the evidence reflects that the
agreement did not exist until after Camacho’s capital murder trial,
when the prosecutor mistakenly included those terms in a hurriedly-
drafted letter for Cooke’s federal counsel. Although the State
did not disclose to Camacho’s counsel that it had verbally agreed
to not oppose Cooke’s parole, there is no basis for inferring that
such an agreement influenced Cooke’s testimony, in the light of the
evidence that Cooke was well aware that the Dallas County District
Attorney’s Office had no influence over parole decisions made by
the Texas Board of Pardons and Paroles. (His counsel on the State
- 28 -
charges testified that he and the attorney representing Cooke in
federal court so informed Cooke, as noted supra).
Cooke’s eyewitness testimony about Wilburn’s murder was
corroborated by the eyewitness testimony of Wright and Merrell. It
was further corroborated by Wilson’s testimony that Camacho drove
the car away from the scene of the murder, and by the testimony of
Cummings, to whom Camacho admitted committing the murder.
Considering the jury’s knowledge that Cooke had avoided a capital
murder charge by pleading guilty, there is no reasonable
probability that its determination of his credibility would have
been affected by knowledge of whatever marginal benefit Cooke might
receive from the State’s agreement not to oppose his parole. See
Pyles v. Johnson, ___ F.3d ___, ___, 1998 WL 94881, at *13 (5th
Cir. 1998) (where State’s witness admitted that self-interest
motivated his testimony, disclosure of the terms of a better deal
than described by the witness at trial “would have at best had a
marginal negative impact on the jury’s credibility assessment”).
The State asserts that Camacho has not demonstrated that the
evidence regarding James Scott and Jane and Rose Wallace was
suppressed, because each of their names appeared on the State’s
first witness list, filed three months before trial, and the
defense, exercising reasonable diligence, could have interviewed
each of them and discovered what each knew about the events of 20
May 1988. Although the State is correct that “[a] Brady violation
does not arise if the defendant, using reasonable diligence, could
have obtained the information”, Williams v. Scott, 35 F.3d 159, 163
- 29 -
(5th Cir. 1994), cert. denied, 513 U.S. 1137 (1995), we will make
yet another assumption beneficial to Camacho: that the disclosure
of the identities of these witnesses was not adequate to apprise
the defense of their knowledge of the relevant events.
Nevertheless, we conclude that the suppressed evidence, to the
extent that it was exculpatory, was not material.
None of the three claimed to have witnessed the murder, and
their testimony was not consistent. Even assuming that Rose
Wallace was coerced into identifying Camacho, her testimony would
not have impeached that of the eyewitnesses to the murder. The
statement in the investigative notes that Jane Wallace stated that
she had seen Camacho at Wright’s house numerous times before does
not support an inference that she told the police officer that she
did not see Camacho at Wright’s house on the day of the murder.
Moreover, neither Rose nor Jane Wallace could say that Camacho was
not present at Wright’s house on the morning of 20 May, because
both stated that the “Mexican” man had his back to them.
Scott’s statement that he saw three men enter the house and
three men drive away from the house is not inconsistent with the
trial testimony that three men (Camacho, Cooke, and Jackson)
entered the front of the house, while the fourth (Merrell) went
around to the back of the house to cut the telephone line, and
entered the house later. The fact that Scott did not see the
fourth man is understandable, because he did not see the men get
out of the car and did not look outside until he heard the noise
made by the three men who were breaking in at the front door.
- 30 -
Likewise, Scott’s statement that he saw three men leave was not
necessarily inconsistent with the trial testimony that Camacho sent
Jackson to look for Wright, who had escaped. Moreover, at the
federal kidnaping trial, Scott was equivocal about whether three
men or more got into the car after coming out of Wright’s house; as
noted, he stated: “That’s all I seen. It may have been more, but
that’s what I seen go to the car.”
Scott’s statement that he thought that a black man was driving
as the car departed, but was unsure who was driving when the car
came back around the block, is insignificant and does not exculpate
Camacho from responsibility for the murder, because, as noted,
Scott admitted that he was scared to get too close, and that
Wilson, who positively identified Camacho as the driver, was in a
better position to do so.
Contrary to Camacho’s assertion, Wilson was not the only
disinterested witness who placed Camacho at the scene of the
murder. Wright also placed him there. Camacho has not shown that
Wright had a motive to identify Camacho, rather than one of the
others, as the shooter.
Scott’s alleged “misidentification” also is not exculpatory,
because Scott could not identify any of the perpetrators. Although
Scott apparently told a police officer during the investigation
that the “Mexican” had “shoulder length” hair, he testified at the
federal trial that it was “[n]ot real long” and was “back on his
neck”. In the light of the fact that the photographs of Camacho
indicate that his own hair was fairly long, he has not demonstrated
- 31 -
that Scott’s description fit any other possible suspect more than
it fit him.
Even assuming that Scott was shown a photographic lineup,
Scott’s federal trial testimony that a detective told him that he
had picked the wrong photograph out of a lineup does not undermine
our confidence in the verdict. Scott did not claim to have
witnessed the murder, and three of the eyewitnesses to it testified
that Camacho shot Wilburn. Their testimony was corroborated by
Wilson’s identification of Camacho as the driver of the car and by
Cummings’ testimony that Camacho admitted to him that he committed
the murder.
The fact that the State’s initial theory was that three men
committed the offense was a matter of public record and was
available to Camacho and his counsel. But, even assuming that the
State had a duty to disclose it, this is neither material nor
exculpatory. That Detective Barnes’ initial report indicates three
suspects were involved does not tend to demonstrate that Camacho
was not one of them. Nor, again, does it undermine the testimony
of three eyewitnesses that Camacho shot Wilburn.
Camacho asserts that he was entitled to discovery and an
evidentiary hearing, because there is a factual dispute regarding
when the FBI and Dallas Police learned of Camacho’s identity and
obtained a photograph of him. This contention is based on Wilson’s
trial testimony that she was shown a photographic lineup “the day
after” (21 May) the offense occurred, which purportedly contradicts
other evidence that the FBI and Dallas Police did not learn
- 32 -
Camacho’s identity until 22 May, after Wright’s telephone
conversation with FBI Agent Figueroa on the evening of 21 May.
Camacho asserts that the inconsistency raises the “all important
question” of how the FBI or Dallas Police Department learned of
Camacho’s identity prior to his being identified by Wright.
The alleged discrepancy was apparent at Camacho’s state trial,
and could have been explored then. In any event, the record
demonstrates that, in Wilson’s state court testimony, she was
mistaken about the lineup date. As stated, in the identification
hearing outside the presence of the jury immediately prior to her
trial testimony, Wilson stated that she was shown the lineup a day
or two after the incident. At the federal trial, Wilson testified
that she gave a description of the suspects to FBI agents on 21
May, but was not shown any photographs at that time, and then, on
22 May, Detective Barnes showed her a photographic lineup. Her
testimony is corroborated by Agent Figueroa’s testimony at the
federal trial that he first obtained a photograph of Camacho on 22
May and gave that photograph to Detective Barnes for use in a
photographic lineup to be shown that day to Wilson.
In sum, the net effect of evidence that the State’s initial
theory involved three suspects rather than four; that a witness who
did not testify at trial saw only three suspects and thought the
driver of the getaway car was black rather than Hispanic; that
witnesses who did not testify at trial were unable to identify
Camacho as being at Wright’s house on 20 May; that another witness
who did not testify at trial was coerced into identifying Camacho’s
- 33 -
photograph; that one witness was mistaken as to when she was shown
a photographic lineup; and that the State had agreed not to oppose
parole for one of the accomplice eyewitnesses, is not sufficient to
undermine our confidence in the verdict. Therefore, we conclude
that there is no reasonable probability that, had such evidence
been disclosed, the outcome of Camacho’s trial would have been
different.
Concomitantly, because Camacho has not demonstrated the
existence of a factual dispute that, if resolved in his favor,
would entitle him to relief, the district court did not err by
denying his requests to employ an expert, and for discovery and an
evidentiary hearing. See Perillo v. Johnson, 79 F.3d 441, 444 (5th
Cir. 1996) (a federal habeas petitioner is entitled to discovery
and an evidentiary hearing only “[w]hen there is a factual dispute
[that], if resolved in the petitioner’s favor, would entitle [him]
to relief and the state has not afforded the petitioner a full and
fair evidentiary hearing”); see also Harris v. Johnson, 81 F.3d
535, 540 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 1863
(1996).
B.
Camacho contends that he is entitled to a new trial because of
newly-discovered evidence pointing to his innocence, and that
executing him without a jury’s consideration of such evidence would
deprive him of his life without due process. Along this line, he
contends that he is entitled to discovery, funds with which to
employ an expert witness, and an evidentiary hearing.
- 34 -
“[I]t has long been a habeas rule that ‘the existence merely
of newly discovered evidence relevant to the guilt of a state
prisoner is not a ground for relief on federal habeas corpus.’”
Lucas v. Johnson, 132 F.3d at 1074 (quoting Herrera v. Collins, 954
F.2d 1029, 1034 (5th Cir. 1992), aff’d, 506 U.S. 390 (1993)). “[A]
claim of ‘actual innocence’ is not itself a constitutional claim,
but instead a gateway through which a habeas petitioner must pass
to have his otherwise barred constitutional claim considered on the
merits.” Herrera, 506 U.S. at 404. Camacho appears to rely on the
Supreme Court’s assumption, arguendo, that “a truly persuasive
demonstration of ‘actual innocence’ made after trial would render
the execution of a defendant unconstitutional, and warrant federal
habeas relief if there were no state avenue open to process such a
claim”. Id. at 417. The Court noted that “the threshold showing
for such an assumed right would necessarily be extraordinarily
high”. Id.
Camacho’s claim is based on the 14 August 1992 affidavit of
Bobby Newton (dated more than four years after the murder), which
was attached to Camacho’s state habeas application. The affidavit
states that, early in the morning on 19 May 1988 (the day before
the murder), Newton was sitting on the front porch of a friend,
Danny Sheffield, directly across the street from Wright’s house;
that three men arrived in a big, light-colored car and knocked on
the door of Wright’s house; that Wilburn opened the door; that one
of the men shot Wilburn in the back of the head, causing Wilburn to
- 35 -
fall to the floor, face-first; and that he knew Camacho, but did
not see him at Wright’s house on the morning Wilburn was murdered.
In response to Camacho’s state habeas application, the State
submitted the affidavit of Detective Barnes, who stated that the
events described in Newton’s affidavit did not match the physical
evidence; and the affidavits of long-time residents of the
neighborhood, who stated that they did not know either Newton or
Sheffield.
The state habeas court rejected this claim, and made extensive
factual findings; for example, that Newton was not credible,
because he did not assert that he was present on the date the
offense occurred, and because the events described by Newton were
contrary to the physical and eyewitness evidence.
The district court held that it was unnecessary to consider
whether the state court’s findings were supported by the record,
because Newton subsequently recanted the contents of his affidavit.
In a 27 May 1996 letter to Camacho’s counsel, Newton stated:
Mr. Murphy I am writing you back to let you
know that I don’t wish to testify for you or
the State because when I gave you this so-
called affidavit 4 years ago it was because at
that time I need a lawyer to help stop me from
coming to T.D.C. Mr. Murphy I am very sorry
about this man but I can’t an will not help
him because I wasn’t there. I lie so you
would help me an I was willing to lie for him
but since I have done my time here in T.D.C.
without your help why would you have the nuts
to send me these papers. I tell you this one
thing if you are the State have me come to
court I will tell those people I didn’t see
nothings also my mother and father didn’t see
anything so they better not come up hurt in
any way.... But I will not lie for him or you
so Mr. Murphy please let me do my time an go
- 36 -
home to my family.... I will not testify for
him or against him. I didn’t see or hear
anything. I was running from the Law myself
when I seen you I seen my way out of here but
you didn’t help me so I will not lie for you
that life so don’t write or send me anything
because I will tell the State the truth. You
have a nice day tell Mr. Camacho to pray but
if he killed Evellyn Bank an the baby boy he
should an will pay. But I will not have their
blood on my hand. NO!! WAY.
Concerning his assertion that the district court erred by
refusing to allow discovery on Newton’s recantation and to conduct
an evidentiary hearing, Camacho maintains that discovery was
necessary to determine whether counsel’s suspicions about post-
affidavit contacts by law enforcement agencies with Newton were
responsible for his recantation. And, he contends that he was
entitled to depose the physician who performed the autopsy of
Wilburn, to determine whether Wilburn was shot as Newton stated in
his affidavit.
Camacho also maintains that the district court erred by
denying his motion for authorization to employ an independent
private pathologist. In that motion, Camacho asserted that his
counsel had informally consulted with Dr. Charles Petty, a
pathologist and former Chief Medical Examiner for Dallas County,
who testified at trial; that Dr. Petty reviewed the autopsy report
and his trial testimony along with photographs of the crime scene;
and that Dr. Petty was of the preliminary opinion that, although he
testified at trial that the cause of death was consistent with an
individual who had been forced to lie on the floor and had a weapon
placed either at or near his body and the trigger pulled, the
- 37 -
physical evidence of the autopsy and crime scene is equally
consistent with the version of events related in Newton’s affidavit
— that Wilburn was shot standing up just inside the doorway.
Camacho contends further that he is entitled to a CPC on this
claim because someone other than Newton gave a similar account to
the police and the news media on the day of the murder. In
support, Camacho relies on a 20 May 1988 newspaper article, in
which it is reported that a Dallas Police Officer said that
“[w]hile the assailants were in the house, a visitor knocked on the
door and was shot to death as he stood in the doorway”, and that an
unidentified witness said that, after Wilburn knocked on the door,
“[s]omebody said come in and then they shot him right at the door”.
Even assuming that a claim has been stated for federal habeas
relief based on actual innocence, it fails for a number of reasons.
First, as the district court noted, Newton recanted. Second, his
affidavit falls far short of “a truly persuasive demonstration of
‘actual innocence’”. See Herrera, 506 U.S. at 417. In his
affidavit, Newton claims to have observed the murder the day before
it occurred. The record contains evidence that he had one
misdemeanor and five felony convictions; and that Sheffield, the
friend Newton claims to have been visiting on the day of the
murder, did not live in either of the houses located directly
across from Wright’s. Newton’s statement that the victim was
already at Wright’s house when the perpetrators arrived, and opened
the door for them, is contradicted by testimony that entry into the
house was forced and by crime scene photographs showing that a part
- 38 -
of the door frame was broken when entry into the house was forced,
as well as by the newspaper article Camacho relies on, which states
that the unnamed witness stated that the victim drove up after the
suspects arrived and was killed after they opened the door for him.
Finally, the affidavit is contradicted by the eyewitness testimony
of three individuals inside the room when Wilburn was shot.
Camacho’s conclusory assertion that unidentified law
enforcement officers might have influenced Newton’s recantation is
speculative and insufficient to demonstrate the existence of a
factual dispute that, if resolved in his favor, would entitle him
to relief. Accordingly, for this claim, he was not entitled to
expert assistance, discovery, or an evidentiary hearing.
C.
Relying on Batson v. Kentucky, 476 U.S. 79 (1986), Camacho
contends that the prosecutor’s exercise of peremptory challenges to
exclude three minority venire members (Elizabeth Gamboa, who is
Hispanic; Johnny Crowder and Charles Brooks, both of whom are
black) from the jury were racially motivated and that the
prosecutor’s reasons for striking them were pretextual.
To establish a Batson violation, Camacho must prove, of
course, that the strikes were motivated by purposeful racial
discrimination. Batson, 476 U.S. at 94 n.18; see also Purkett v.
Elem, 514 U.S. 765, 767-68 (1995). In a federal habeas proceeding,
the trial court’s rulings on discrimination and pretext are factual
findings that are presumptively correct. See Purkett, 514 U.S. at
769 (quoting pre-AEDPA 28 U.S.C. § 2254(d)); Washington v. Johnson,
- 39 -
90 F.3d 945, 954 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117
S. Ct. 1259 (1997). Inasmuch as the factual findings on the Batson
claims were made by the trial court after a live evidentiary
hearing, we do not understand Camacho to contend that the
presumption is inapplicable to these claims.
At the conclusion of voir dire, but before the jurors were
sworn, the trial court conducted a hearing on Camacho’s charge that
the State’s peremptory challenges were racially motivated; the
prosecutor gave the following reasons for them.
As for Elizabeth Gamboa, he noted her youth (she was 24); she
still lived at home with her parents; her apparent lack of
understanding of some of the terms used in the indictment; and his
belief that she was “just not assertive enough to make a critical
decision on someone’s life”.
Crowder was struck because he indicated on his juror
questionnaire that he did not believe in the death penalty, but
testified during voir dire that, under certain circumstances, he
did believe in it. The prosecutor testified that he tried to make
sure that no one was selected as a juror who had circled the
following statement, as had Crowder, on his questionnaire:
“Although I do not personally believe in the death penalty, as long
as the law provides for it I could assess it under the proper set
of facts and circumstances.”
Finally, with respect to Brooks, his questionnaire appeared to
be contradictory as to whether he believed in the death penalty;
and, during voir dire, Brooks “could not adequately explain what to
- 40 -
me was a discrepancy [—] he didn’t believe in the death penalty in
one question. The next question was, he did believe in it, and he
just ... he cannot adequately explain that answer.” The prosecutor
also had some concern that Brooks was answering the questions in a
such a way as to ensure that he was selected as a juror, because
the bailiff had told him that someone who would be questioned that
day had expressed an interest in serving on the jury and had asked
how to respond to the questions in a way that would ensure
selection.
Following the hearing, the trial court made extensive findings
of fact, including that the State gave no explanations based on
group bias; that it had articulated nondiscriminatory reasons for
the use of its peremptory challenges; and that there was no
purposeful discrimination by it in the exercise of its peremptory
challenges.
These findings are fully supported by the record. See 28
U.S.C. § 2254(d) (pre-AEDPA); Purkett, 514 U.S. at 769.
Accordingly, Camacho is not entitled to a CPC on his Batson claims.
D.
Camacho’s final claim is that the admission of evidence of the
murders of Evellyn and Andre Banks deprived him of a Sixth
Amendment “right to a fair trial”. At trial and on direct appeal,
Camacho objected to this evidence on general relevance grounds.
And, he did not present this claim in his state habeas application.
However, he asserts constitutional grounds for the first time in
his federal habeas petition.
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The State contends that federal habeas review is barred by
Camacho’s failure to raise this claim in state court, because, if
Camacho attempted to raise it in a new state habeas application,
the Texas Court of Criminal Appeals would find an abuse of the
writ. See Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997).
It contends further that state review would be barred by the
absence of a contemporaneous objection on Sixth Amendment grounds.
Alternatively, it contends that Camacho has not established that
the admission of this evidence violated the Constitution.
It goes without saying that, in reviewing state evidentiary
rulings, the role of federal courts “is limited to determining
whether a trial judge’s error is so extreme that it constituted
denial of fundamental fairness.” Woods v. Johnson, 75 F.3d 1017,
1038 (5th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 150 (1996).
“The test applied to determine whether a trial error makes a trial
fundamentally unfair is whether there is a reasonable probability
that the verdict might have been different had the trial been
properly conducted.” Kirkpatrick v. Blackburn, 777 F.2d 272, 278-
79 (5th Cir. 1985), cert. denied, 476 U.S. 1178 (1986). “Habeas
relief is warranted only when the erroneous admission of evidence
played a crucial, critical and highly significant role in the
trial.” Lucas v. Johnson, 132 F.3d at 1082 (internal quotation
marks, brackets, and citation omitted).
When considering challenges to the admission of extraneous
offenses under the Due Process Clause of the Fourteenth Amendment,
which guarantees “fundamental fairness” (as noted, Camacho’s claim
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is based on his asserted Sixth Amendment “right to a fair trial”),
our court has considered two factors: whether there is a strong
showing that the appellant committed the offense; and whether the
extraneous offense is rationally connected with the offense
charged. See Pentecost v. Estelle, 582 F.2d 1029, 1031 (5th Cir.
1978); Hills v. Henderson, 529 F.2d 397, 400 (5th Cir.), cert.
denied, 429 U.S. 850 (1976).
Assuming that federal habeas review is not procedurally
barred, Camacho has not shown that the evidence was admitted
erroneously. First, there was a strong showing, through eyewitness
testimony, as to Camacho’s involvement in the kidnaping and murder
of Evellyn and Andre Banks. And, those murders are rationally
connected with Wilburn’s; the murders of Evellyn and Andre Banks
eliminated two of the eyewitnesses to Camacho’s murder of Wilburn.
But, even assuming that the evidence was admitted erroneously,
Camacho still has not shown that it had a substantial impact on the
verdict or rendered his trial fundamentally unfair. As Camacho
conceded in his brief filed in the Texas Court of Criminal Appeals
on direct appeal, the evidence of his guilt was “overwhelming”, and
the State’s case was “powerful and unimpeached”. This is true even
without considering the evidence of the murders of Evellyn and
Andre Banks. Again, three eyewitnesses — Wright, Cooke, and
Merrell — testified that Camacho shot Wilburn. Again, Wilson
testified that she saw Camacho leaving the scene. And, again,
Cummings testified that Camacho admitted to him that he had
committed the murder. In sum, as the district court stated, the
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evidence of Camacho’s guilt for Wilburn’s murder was so
overwhelming that there is no reasonable probability that the jury
would have acquitted Camacho had the evidence of the murders of
Evellyn and Andre Banks been excluded. Accordingly, this issue
also does not provide a basis for a CPC.
III.
Because Camacho fails to establish a basis for a certificate
of probable cause, his request for the certificate is DENIED and
the stay of execution is VACATED.
CERTIFICATE OF PROBABLE CAUSE DENIED;
STAY OF EXECUTION VACATED
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