Hughes v. Quarterman , 160 F. App'x 431 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 4, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-70022
_____________________
PRESTON HUGHES, III,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CV-4073
_________________________________________________________________
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Preston Hughes, III was convicted and sentenced to death for
the 1988 murders of fifteen-year-old Shandra Charles and her three-
year-old cousin, Marcell Taylor. He requests a certificate of
appealability (“COA”) to appeal the district court’s denial of
federal habeas relief for sixteen claims. The request is GRANTED,
in part, and DENIED, in part.
*
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this opinion should not be published and is not precedent except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.
I
At trial, the State presented evidence that Hughes stabbed
both of the victims in the neck and chest. Shandra Charles lived
long enough to tell police that “Preston” had stabbed her after
trying to rape her. The police officers went to a nearby apartment
complex. The only person living there named “Preston” was Hughes.
He agreed to accompany the officers to the police station, where he
later gave two written statements admitting that he had stabbed
both victims.
At the punishment phase, Tracy Heggar testified that Hughes
had raped her in 1985 when she was thirteen years old. She
testified further that Hughes had threatened her with a gun in an
attempt to prevent her from testifying against him about the rape.
The State presented evidence that, at the time of the murders,
Hughes was serving two ten-year probated terms for the aggravated
sexual assault and aggravated assault of Heggar. Six of Hughes’s
friends and his mother testified that he was a good-natured, non-
violent person. Hughes testified at the guilt and punishment
phases of trial.
The Texas Court of Criminal Appeals affirmed Hughes’s
conviction and sentence on direct appeal. Hughes v. State, 878
S.W.2d 142 (Tex. Crim. App. 1993), cert. denied, 517 U.S. 1152
(1994). His first state habeas application was denied with a
written order. Ex parte Hughes, No. 45,876-01 (Tex. Crim. App.
Sept. 13, 2000). His second state habeas application was dismissed
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as an abuse of the writ. Ex parte Hughes, No. 45,876-02 (Tex.
Crim. App. Nov. 14, 2001).
In an 82-page opinion, the district court denied Hughes’s
petition for federal habeas relief and denied a COA. Hughes now
requests a COA from this court for eight claims.
II
To obtain a COA, Hughes must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A).
To make such a showing, he must demonstrate that “jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In
making our decision whether to grant a COA, we conduct a “threshold
inquiry”, which consists of “an overview of the claims in the
habeas petition and a general assessment of their merits.” Id. at
327, 336. “While the nature of a capital case is not of itself
sufficient to warrant the issuance of a COA, in a death penalty
case any doubts as to whether a COA should issue must be resolved
in the petitioner’s favor.” Ramirez v. Dretke, 398 F.3d 691, 694
(5th Cir. 2005) (internal quotations and citations omitted).
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A
Based on our limited, threshold inquiry and general assessment
of the merits of Hughes’s claims, we conclude that the following
claims present issues that are adequate to deserve encouragement to
proceed further:
Claim 3: Whether the jury instructions at the punishment
phase of the trial gave the jury a means for considering and giving
effect to Hughes’s mitigating evidence, and whether this claim is
procedurally barred.
Claim 5: Whether, at the punishment phase, the jury
improperly considered a prior conviction that was later overturned
on appeal.
Claim 6: Whether the prosecutor violated Hughes’s rights
under the Fourteenth Amendment by arguing at the close of the
punishment phase that Hughes’s counsel was wrong to cross-examine
Tracy Heggar, who testified as a witness for the State.
Accordingly, we GRANT a COA for these claims. If petitioner
Hughes wishes to file a supplemental brief with respect to the
merits of the claims for which a COA has been issued, he may do so
within thirty days of the date of this order. The supplemental
brief should address only matters that have not already been
covered in the brief in support of the COA application. The State
may file a response fifteen days thereafter.
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B
Hughes has failed to demonstrate that jurists of reason could
disagree with or find debatable the district court’s resolution of
the issues presented in the following claims, and we therefore DENY
his request for a COA for those claims, for the reasons set forth
below:
Claim 1: Whether the district court erred by holding that
many of Hughes’s claims were procedurally barred and/or barred by
Teague v. Lane, 489 U.S. 288 (1989). The district court noted
that Hughes had conceded that he raised most of his claims for the
first time in his second state habeas application, which the Texas
Court of Criminal Appeals had dismissed as an abuse of the writ.
The district court applied well-settled precedent to hold that the
Texas abuse of the writ doctrine provided an independent and
adequate state ground for the purpose of imposing a procedural bar.
It held that, although the changes in the law were external
factors, Hughes had failed to allege how the government had
interfered with his ability to discover and investigate his claims,
or that his claims were unavailable at the time he filed his direct
appeal or his first state habeas application. The district court
held that Hughes did not fit within the fundamental miscarriage of
justice exception because he had not presented any evidence
establishing that he did not commit the crime for which he was
convicted or that he is otherwise actually innocent of the charges
against him. The court also rejected each of the barred claims on
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the merits and, therefore, concluded that Hughes had not
established prejudice. The district court’s application of Teague
and the procedural bar based on the Texas abuse of the writ
doctrine is not debatable. We therefore DENY a COA for this claim.
Claim 2: Whether Hughes’s statements to the police were
obtained in violation of the Constitution because he was verbally
threatened, physically abused, and intoxicated. The district court
held that this claim is procedurally barred. Although Hughes filed
a written motion to suppress his confession, which was denied by
the trial court following a hearing, he did not challenge the
voluntariness of his confession on direct appeal. Instead, he
argued that the confession was inadmissible as fruit of an illegal
arrest in violation of the Fourth and Fifth Amendments. He raised
those same claims in his initial state habeas application. The
district court stated that Hughes did not make any allegation or
argument that his statements were tainted by verbal threats,
physical abuse, or intoxication until his second state habeas
application, which was dismissed as an abuse of the writ.
Alternatively, the district court held that this claim is
without merit. It noted that the state trial court conducted a
hearing on Hughes’s motion to suppress and concluded that Hughes’s
statements were voluntary. The district court recited the
following factual findings by the state trial court: Hughes’s
assertion that his confession was coerced by threats or abuse was
not credible; Hughes’s demeanor did not reflect a person who would
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be easily intimidated into making a false confession; Hughes had
extensive experience with the criminal justice system; Hughes was
an expert in martial arts; Hughes was allowed to make several
private telephone calls after making his statements, but he did not
complain about threats or abuse to the persons he called; and
photographs taken of Hughes shortly after he was charged did not
show any evidence of physical abuse. The district court held that
Hughes’s conclusory affidavit, unsupported by any other evidence,
was insufficient to undermine the detailed findings of fact made by
the state trial court.
Finally, the district court held that any error was harmless
in the light of the other evidence of guilt.
Although the district court’s harmless error analysis
erroneously refers to evidence that was not introduced until the
punishment phase of the trial, its conclusions that this claim is
procedurally barred or, alternatively, meritless in the light of
the state court’s factual findings, are not debatable. We
therefore DENY a COA for this claim.
Claim 4: Whether the evidence is insufficient to support the
jury’s finding that Hughes acted deliberately in killing the second
victim, three-year-old Marcell Taylor. Hughes relies for support
on his statement to the police that he stabbed the little boy after
the little boy began crying and walked between Hughes and Shandra
Charles (the first victim). He contends that this evidence shows
that he did not deliberately stab the second victim, but only
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stabbed him accidentally when the child wandered into the path of
his knife while he was stabbing the first victim.
The district court held that this claim is procedurally barred
because Hughes raised it for the first time in his second state
habeas application, which was dismissed as an abuse of the writ.
Alternatively, the district court held that the claim failed on the
merits. The district court noted that both of the victims were
stabbed in the chest and neck, perforating their carotid arteries
and jugular veins. The district court cited state law holding that
evidence that a person is armed and has repeatedly stabbed his
victim is proof that his actions were deliberate. The district
court concluded that, based on the facts that both of the victims
suffered nearly identical wounds and were stabbed repeatedly, a
rational trier of fact could have found that Hughes had adequate
time to contemplate the effect of his actions on Marcell Taylor
during the course of the offense. Reasonable jurists would not
find the district court’s decision debatable. Accordingly, Hughes
is not entitled to a COA for this claim.
Claim 6 (in part): As stated earlier, we have granted a COA
for Hughes’s claim that the prosecutor violated his rights under
the Fourteenth Amendment by arguing at the close of the punishment
phase that Hughes’s counsel was wrong to cross-examine Tracy
Heggar, who testified for the State. Hughes also requests a COA
for his claims that the prosecutor’s argument violated the Sixth
and Eighth Amendments.
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The prosecutor argued that Heggar’s testimony “alone is enough
to put the needle in this man’s arm. And for that little girl to
be brought down here and for [defense counsel] to put her on trial
again is not right.” Defense counsel objected; the prosecutor
apologized; and the court overruled the objection. The prosecutor
then said: “They have done nothing wrong. They’re trying to
protect their client. It’s their job. It doesn’t mean it’s the
right thing to do.” Defense counsel objected again, and the trial
court sustained the objection and instructed the jury to disregard
the last remark of the prosecutor and not consider it for “any
purpose whatsoever”.
On direct appeal, the Texas Court of Criminal Appeals held
that the argument was improper and that the trial court erred by
overruling the initial objection. However, it concluded that the
error was cured by the prompt instruction to disregard the second
comment.
The district court held that Teague bars any claim of
prosecutorial misconduct under the Sixth and Eighth Amendments
because challenges to improper prosecutorial remarks are governed
by the Fourteenth Amendment. The district court’s decision with
respect to the Sixth and Eighth Amendments is not debatable. We
therefore DENY a COA for this claim insofar as it relies on the
Sixth and Eighth Amendments.
Claim 7: Whether Hughes’s conviction and sentence were
obtained in violation of his right to equal protection, because
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capital punishment is disproportionately imposed on members of his
race (African-American). Hughes argues that the Supreme Court’s
decision in Bush v. Gore, 531 U.S. 98 (2000), provides a broader
interpretation of equal protection and entitles him to an
evidentiary procedure like the one described in Batson v. Kentucky,
476 U.S. 79 (1986), to allow him to determine whether impermissible
racially-based factors were considered by the individuals involved
in investigating, arresting, and prosecuting the case against him.
The district court held that this claim is procedurally barred
because Hughes raised it for the first time in his second state
habeas application, which was dismissed as an abuse of the writ.
Alternatively, the district court rejected the claim on the merits
because Hughes had not presented any direct evidence that his
conviction was obtained as a result of racially discriminatory
practices of the type that might support an equal protection claim.
The court held that Bush v. Gore does not require an evidentiary
hearing to determine the intent of the police and prosecutors and
that, even if a Batson-type inquiry of the sort suggested by Hughes
were performed in this case, Hughes would not be entitled to relief
because there are race-neutral explanations for his arrest and
prosecution, and he cannot show that, but for his race, the police
would not have investigated him as a suspect or that the
prosecution would not have charged this case as a capital offense.
In the further alternative, the district court held that the rule
proposed by Hughes -- that Bush v. Gore affords a Batson-type
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challenge to determine whether the individuals involved in
investigating, arresting, and prosecuting a case acted with
discriminatory intent in seeking the death penalty -- is barred by
Teague. The court rejected Hughes’s contention that his claim is
covered by the Teague exception for principles essential to a
concept of ordered liberty.
Reasonable jurists would not find the district court’s
rejection of this claim debatable. Accordingly, we DENY a COA.
Claim 8: Whether Hughes is entitled to relief under the
Eighth and Fourteenth Amendments because there is new evidence that
makes it clear that he is no longer a danger to society. The “new”
evidence Hughes offers in support of this claim is that he has been
a well-behaved prisoner on death row for over twelve years and has
reached an age where the rate of offense among the population of
males drops off dramatically.
The district court held that this claim is procedurally barred
because it was raised for the first time in Hughes’s second state
habeas application, which was dismissed as an abuse of the writ.
Alternatively, the district court denied relief on the merits
because no federal authority supports the claim. Moreover, the
district court observed that the evidence presented by Hughes,
although recent in time, does not qualify as “new”. The court
noted that Hughes and his mother and several other witnesses at the
punishment phase testified that Hughes would behave well in prison
if given a life sentence. Therefore, the court held that the jury
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at the punishment phase was not precluded from considering the
possibility that Hughes might enjoy an unblemished disciplinary
record while on death row or the possibility that, with the passage
of time, his propensity to engage in violent behavior might
diminish. In addition, the district court concluded that relief is
barred under Teague because the rule proposed by Hughes -- that
post hoc proof of good behavior in prison and a defendant’s
advanced age are sufficient reasons to set aside a jury verdict
based on its determination of evidence presented at trial that the
defendant poses a future danger to society -- is not dictated by
precedent existing at the time his conviction became final. The
district court’s decision is not debatable. Therefore, we DENY a
COA for this claim.
COA GRANTED in part and DENIED in part.
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