Kutzner v. Cockrell ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-20857
RICHARD WILLIAM KUTZNER,
Petitioner - Appellant,
VERSUS
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
For the Southern District of Texas
August 7, 2002
Application for Permission to File Successive Habeas
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
I.
Richard William Kutzner was convicted and sentenced to death
by a jury in Montgomery County Texas in September 1997 for the
murder of Kathryn Harrison. He is currently scheduled to be
executed, August 7, 2002. Kutzner’s conviction was affirmed by the
Texas Court of Criminal Appeals, Kutzner v. State, 994 S.W.2d
180(Tex. Crim. App. 1999). He did not seek a writ of certiorari
from the United States Supreme Court.
Kutzner sought habeas relief in the Texas state court and
relief was denied by the Texas Court of Criminal Appeals. He then
sought federal habeas relief which was denied in the district court
and this court denied Kutzner a certificate of appealability.
Kutzner v. Johnson, 242 F.3d 605 (5th Cir. 2001).
On August 5, 2002, Kutzner filed a petition in federal
district court styled “Motion for DNA Testing” to form the basis
for a motion for authorization to file a successive habeas
petition. Kutzner sought a stay from the district court and argued
that if he were permitted a stay and were permitted to conduct DNA
testing, he would seek to file four claims in a successive federal
habeas petition. The district court held that Kutzner had failed to
demonstrate that he had any colorable new constitutional claims to
offer that would qualify as a ground for a successive habeas
petition under 28 U.S.C. § 2244(b). The district court then denied
the application for stay and the request for DNA testing.
II.
A.
Kutzner filed a notice of appeal from that ruling and an
application for a certificate of appealability. Under the Anti-
Terrorism and Effective Death Penalty Act (AEDPA), a petitioner
must obtain authorization from the Court of Appeals before filing
a successive habeas corpus application. § 2244(b). This court is
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precluded from authorizing a successive petition unless the mover
shows that the claim sought to be asserted is based on either newly
discovered evidence or a new rule of constitutional law made
retroactive to cases on collateral review by the Supreme Court that
was previously unavailable. § 2244(b)(2)(a) and (b).
Although Kutzner made no application to this court for
authorization to file a successive habeas petition, because of the
press of time, we treat Kutzner’s notice of appeal and application
for certificate of appealability as a motion for authorization to
file a successive habeas application. Our focus is on whether
Kutzner has demonstrated that the factual predicate for his claim
could not have been discovered through the exercise of due
diligence; and whether such facts, if proven, would have
established that, but for the constitutional error, no reasonable
fact finder could have found petitioner guilty of murdering Ms.
Harrison. 28 U.S.C. § 2244(b)(2)(B)(I) and (ii).
B.
During the investigation of Ms. Harrison’s murder, the police
recovered scrapings of skin from under her fingernails and two
strands of hair on her body. The fingernail scrapings and one of
the hairs were disclosed to Kutzner before trial. Before trial
neither the state nor Kutzner undertook to test either the
fingernail scrapings or the hair then known to exist. Kutzner’s
counsel argued to the jury that the identification of the killer
was the sole issue before them and criticized the state for failing
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to test the nail scrapings and hair and produce DNA evidence that
could have revealed the killer’s identity. As the district court
noted, “Kutzner knew of the scrapings, blot, and first hair at
trial, on appeal, during his state habeas petition and during his
federal habeas petition. He never requested its testing.”
C.
Kutzner raised three constitutional claims that allegedly
could not have been presented earlier due to prosecutorial
misconduct: (1) the State withheld potentially exculpatory evidence
— a hair as well as a red substance on cellophane collected at the
crime scene; (2) the State knowingly put on false testimony that no
DNA testing of fingernail scrapings collected at the crime scene
was possible; and (3) the State allowed false testimony concerning
the scrapings to go uncorrected. However, Kutzner fails to
establish Brady1 or Giglio2 error that would qualify for successive
habeas relief.
To establish a Brady v. Maryland claim, Kutzner must prove
that the prosecution suppressed favorable, material evidence that
was not discoverable through due diligence. 373 U.S. at 87; Rector
v. Johnson, 120 F.3d 551, 558 (5th Cir. 1998). Brady does not
obligate the State to furnish a defendant with exculpatory evidence
that is fully available to the defendant through the exercise of
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Brady v. Maryland, 373 U.S. 83 (1963).
2
Giglio v. United States, 405 U.S. 150 (1972).
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reasonable diligence. Rector, 120 F.3d at 558. When evidence is
equally available to both the defense and the prosecution, the
defendant must bear the responsibility of failing to conduct a
diligent investigation. Herrera v. Collins, 954 F.2d 1029, 1032
(5th Cir. 1992), aff’d, 506 U.S. 390 (1993). In this sense, Brady
applies only to “the discovery, after trial[,] of information which
had been known to the prosecution but unknown to the defense.”
United States v. Agurs, 427 U.S. 97, 103 (1976).
In this case, essentially all of the “suppressed” evidence was
discussed at trial when State’s witness Peggy Frankhouser was
cross-examined by Kutzner regarding the biological evidence
collected at the crime scene.
It is clear from the exchange with this witness that Kutzner
understood that at least one hair, possibly “a couple,” were
collected at the crime scene. To the extent that Kutzner argues
that a second hair was suppressed, it appears that Ms.
Frankhouser’s memory was somewhat incomplete; however, the issue
was not pursued. Kutzner was also aware that fingernail scrapings
were gathered but not tested. Further, the cellophane was
discussed twice. No evidence was suppressed and trial counsel
could have tested any piece of it at the time of trial. Kutzner
fails to demonstrate that prosecutorial misconduct in this regard
prevented him from discovering the factual basis of his successive
claims at the time his first habeas petition was litigated.
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Similarly, Kutzner fails to prove the elements of Giglio v.
United States, i.e., that the State knowingly presented or failed
to correct materially false testimony during trial. 405 U.S. at
153-54; Kutzner v. Johnson, 242 F.3d at 609. Importantly, due
process is not implicated by the prosecution’s introduction or
allowance of false or perjured testimony unless the prosecution
actually knows or believes the testimony to be false or perjured;
it is not enough that the testimony is challenged by another
witness or is inconsistent with prior statements. Kutzner, 242
F.3d at 609; Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990);
United States v. Sutherland, 656 F.2d 1181, 1203 (5th Cir. 1981).
As Ms. Frankhouser’s testimony makes clear, she was unsure of
the number of hairs collected and offered to consult her notes on
the matter. Kutzner did not pursue the matter further. Moreover,
Frankhouser testified that no DNA testing was conducted on the
fingernail scrapings, not that no DNA testing was possible. Once
again, Kutzner chose not to pursue the matter. As stated above,
Kutzner even argued the dearth of scientific evidence to the jury
as proof of reasonable doubt. See, e.g., 13 SR 107-09.
The evidence proving Kutzner’s guilt was certainly
circumstantial, but it was not weak. Tie wraps and electrical
wiring used to restrain the victim and choke her were linked to
Kutzner. Further, multiple items — money orders, a VCR, and a
computer keyboard — taken from the two crime scenes were traced
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back to Kutzner. Also and perhaps most damaging was evidence that
Kutzner committed another murder in Harris County about two weeks
earlier with striking similarities to the Harrison murder. In
light of this evidence, DNA exclusions or identifications from
fingernail scrapings or stray hairs could not have affected the
outcome of this case. Both victims were murdered in a place of
business where dozens - possibly hundreds - of people had
unwittingly deposited genetic material over the preceding months.
Petitioner focuses on the single strand of hair that the state
discovered since the trial. But even if this hair is tested and it
is determined not to belong to Kutzner, this would not be
persuasive evidence of his innocence. This is particularly true in
light of the state’s strong circumstantial evidence of guilt. As
a result, Kutzner fails to make a prima facie showing that DNA
tests would prove his innocence of the murder of Kathryn Harrison.
For the reasons stated above, Kutzner has failed to meet the
successive petition requirements of the AEDPA because:
1) Petitioner does not rely on a new rule of constitutional
law;
2) He has not demonstrated that the predicate facts for his
claims could not have been discovered previously through
the exercise of due diligence; and
3) Even if the tests of hair and nail scrapings revealed
that they belonged to someone other than Kutzner, this
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would be insufficient to establish by clear and
convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant
guilty of the underlying offense.
III.
Kutzner argues that we should not treat his pleadings filed in
the district court and in this court as an application to file a
successive habeas petition. He relies on McFarland v. Scott, 512
U.S. 849 (1994), and its holding that appointed counsel and a stay
of execution is available in a post conviction proceeding under §
2254 or § 2255. We do not agree with Kutzner, however, that this
right to a stay of execution is absolute.
The core concern of McFarland — that an un-counseled prisoner
would be required to “proceed without counsel in order to obtain
counsel and thus would expose him to the substantial risk that his
habeas claims never would be heard on the merits,” 512 U.S. at 856
— is not implicated here. Kutzner was represented by qualified
counsel appointed under section 848(q)(4)(B) and his original §
2254 petition was fully litigated on the merits. Further, current
counsel has represented Kutzner for more than one year. “The
McFarland Court was concerned only with that period of time between
the habeas petitioner’s motion for the appointment of counsel and
the filing of the initial petition.” Turner v. Johnson, 106 F.3d
1178, 1182 (5th Cir. 1997) (emphasis added). Thus, McFarland does
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not justify appointment of counsel or stay of execution for the
preparation of a second federal habeas petition.
Finally, a federal court is without jurisdiction to consider
a request for stay of execution in connection with a successive
habeas petition “in the absence of express authorization by this
[C]ourt pursuant to 28 U.S.C. § 2244(b)(3)(A).” Martinez v. Texas
Court of Criminal Appeals, 292 F.3d 417, 423 (5th Cir.), cert.
denied, 122 S. Ct. 1992 (2001). For reasons stated above, such
authorization is not warranted in this case. Kutzner had
sufficient time to seek appointment of counsel, investigate the
instant claims, and litigate them in his original habeas petition
because the bases of Kuztner’s claims were available to him since
the time of trial proceedings. Allowance of a stay of execution
under these circumstances would signal tacit approval of endless
stays for the preparation of endless successive petitions.
Kutzner also argues that his motion for assistance to prepare
a successive petition should - like a Rule 60(b) motion - not be
characterized as an attempt to file a successive petition.
Contrary to Kutzner’s argument, a motion under Rule 60(b) is the
equivalent of a second or successive habeas petition subject to the
standards of section 2244(b). Hess v. Cockrell, 281 F.3d 212, 214-
15 (5th Cir. 2002); Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir.
1999), cert. denied, 530 U.S. 1206 (2000); United States v. Rich,
141 F.3d 550, 551-52 (5th Cir. 1998). Like a Rule 60(b) motion,
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Kuztner’s motions for DNA testing and stay of execution in the
lower court essentially attacked his conviction and sentence on
constitutional grounds by leveling accusations of prosecutorial
misconduct. Although his protestations are without merit, Kutzner
has no other explanation for why he did not raise the instant
issues earlier. Thus, there is no functional distinction between
Kutzner’s motions and a request for successive habeas relief.
Nevertheless, even assuming arguendo that Kutzner’s appeal
should be considered an application for certificate of
appealability (“COA”), he is not entitled to relief. It is well
settled that the Court’s appellate jurisdiction in habeas cases is
premised on 28 U.S.C. § 2253(c)(1)(A). The COA standard to be
applied is whether Kuztner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Dowthitt v. Johnson,
230 F.3d 733, 740 (5th Cir. 2000), cert. denied, 532 U.S. 915
(2001). This standard “includes showing that reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. at 483-84 (internal
quotations and citations omitted); Dowthitt, 230 F.3d at 740.
Ordinarily, “the determination of whether a COA should issue
must be made by viewing the petitioner’s arguments through the lens
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of the deferential scheme laid out in 28 U.S.C. § 2254(d).”
Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert.
dismissed, 531 U.S. 1134 (2001). However, because Kuztner’s appeal
is functionally a second or successive petition for habeas relief,
Fierro v. Johnson, 197 F.3d at 151, Kutzner’s claims should be
viewed “through the lens” of 28 U.S.C. § 2244(b)(2). In essence,
the issue is whether it is debatable that Kutzner has substantially
proved the elements of section 2244(b)(2)(B)(i) & (ii) —
constitutional error and actual innocence established by newly
discovered evidence. Therefore, under either standard this appeal
is meritless.
CONCLUSION.
For reasons stated above, we treat Kutzner’s filings as a
petition for authority to file a successive habeas. We conclude
that Kutzner has failed to meet the successive petition
requirements of 28 U.S.C. § 2244 (b)(2)(B)(i) and (ii). We,
therefore, deny petitioner authority to file a successive habeas
petition. We also deny his motion for stay of execution.
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