Dowthitt v. Johnson ( 2000 )

Revised November 21, 2000
1 IN THE UNITED STATES COURT OF APPEALS
2 FOR THE FIFTH CIRCUIT
3 ____________________
4 No. 00-20159
5 ____________________
6 DENNIS THURL DOWTHITT
7 Petitioner - Appellant
8 v.
9 GARY L. JOHNSON, DIRECTOR,
10 TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
11 INSTITUTIONAL DIVISION
12 Respondent - Appellee
13 _________________________________________________________________
14 Appeal from the United States District Court
15 for the Southern District of Texas
16 _________________________________________________________________
17 October 16, 2000
18 Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
19 Judges.
20 KING, Chief Judge:
21 Texas death row inmate Dennis Thurl Dowthitt appeals from
22 the district court’s denial of habeas corpus relief. In order to
23 obtain review of his claims, Dowthitt seeks a certificate of
24 appealability (COA) from this court, pursuant to 28 U.S.C.
25 § 2253(c)(2). We deny Dowthitt’s request for a COA.
26 I. FACTUAL AND PROCEDURAL BACKGROUND
27 At Dowthitt’s trial, the State presented evidence that
28 Dowthitt and his son, Delton Dowthitt (“Delton”), age 16, picked
29 up Gracie and Tiffany Purnhagen, ages 16 and 9, respectively, on
30 June 13, 1990 in a bowling alley parking lot. According to
31 Delton’s testimony at Dowthitt’s trial, Dowthitt sexually
32 assaulted Gracie with a beer bottle and cut her throat with a
33 knife.1 Meanwhile, Delton strangled Tiffany with a rope.2
34 Following a jury trial, Dowthitt was convicted of the murder
35 of Gracie Purnhagen committed in the course of aggravated sexual
36 assault. On October 9, 1992, based on the jury’s answers,
37 Dowthitt was sentenced to death for capital murder. The Texas
38 Court of Criminal Appeals affirmed his conviction and sentence on
39 June 26, 1996. See Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim.
40 Ohio App. 1996).
41 On August 18, 1997, Dowthitt filed a state petition for
42 habeas relief. The state district court, on March 6, 1998,
43 entered findings of fact and conclusions of law and recommended
44 that habeas relief be denied. The Court of Criminal Appeals,
45 adopting most of the findings and conclusions, denied Dowthitt
1
The evidence indicated that Dowthitt cut Gracie’s throat
once before and once after the sexual assault. Gracie was still
alive during the assault.
2
Delton pled guilty to the murder of Tiffany Purnhagen.
Pursuant to a plea agreement, he was sentenced to 45 years and
testified against his father at trial. In addition, the second
murder charge for Gracie’s death was dropped.
2
46 habeas relief. See Ex Parte Dowthitt, No. 37,557 (Tex. Crim.
47 App. Sept. 16, 1998). On April 19, 1999, the United States
48 Supreme Court denied Dowthitt’s petition for a writ of
49 certiorari. See Dowthitt v. Texas, 119 S. Ct. 1466 (1999).
50 After obtaining appointment of counsel and a stay of
51 execution, Dowthitt filed his petition for habeas corpus relief
52 in federal district court on December 30, 1998. In response to
53 Dowthitt’s amended petition on February 12, 1999, the State moved
54 for summary judgment. The district court, on January 7, 2000,
55 held an evidentiary hearing on Dowthitt’s actual innocence claim.
56 On January 27, 2000, the district court filed a detailed and
57 careful Memorandum and Order and entered a final judgment,
58 denying Dowthitt habeas relief on all claims, dismissing his case
59 with prejudice, and denying Dowthitt’s request for a COA. After
60 the district court denied his Rule 59(e) motion, Dowthitt timely
61 appealed to this court, requesting a COA and reversal of the
62 district court’s judgment denying habeas relief.
63 II. DISCUSSION
64 Because Dowthitt’s petition for federal habeas relief was
65 filed after April 24, 1997, this appeal is governed by the Anti-
66 Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
67 L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d
68 773, 775 (5th Cir. 2000) (“Petitioners whose convictions became
3
69 final before the effective date of the AEDPA were given a grace
70 period of one year to file their federal habeas petitions,
71 rendering them timely if filed by April 24, 1997.”). Under
72 AEDPA, a petitioner must first obtain a COA in order for an
73 appellate court to review a district court’s denial of habeas
74 relief. See 28 U.S.C. § 2253(c)(1)(A).
75 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue
76 unless the petitioner makes “a substantial showing of the denial
77 of a constitutional right.” This standard “includes showing that
78 reasonable jurists could debate whether (or, for that matter,
79 agree that) the petition should have been resolved in a different
80 manner or that the issues presented were adequate to deserve
81 encouragement to proceed further.” Slack v. McDaniel, 120 S. Ct.
82 1595, 1603-04 (2000) (internal quotations and citations omitted);
83 see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000).
84 The formulation of the COA test is dependent upon whether
85 the district court dismisses the petitioner’s claim on
86 constitutional or procedural grounds. If the district court
87 rejects the constitutional claims on the merits, the petitioner
88 “must demonstrate that reasonable jurists would find the district
89 court’s assessment of the constitutional claims debatable or
90 wrong.” Slack, 120 S. Ct. at 1604. On the other hand,
91 [w]hen the district court denies a habeas petition on
92 procedural grounds without reaching the prisoner’s
93 underlying constitutional claim, a COA should issue
94 when the prisoner shows, at least, that jurists of
95 reason would find it debatable whether the petition
4
96 states a valid claim of a denial of a constitutional
97 right and that jurists of reason would find it
98 debatable whether the district court was correct in its
99 procedural ruling.
100 Id. (emphasis added); see also Hernandez v. Johnson, 213 F.3d
101 243, 248 (5th Cir. 2000).
102 Furthermore, “the determination of whether a COA should
103 issue must be made by viewing the petitioner’s arguments through
104 the lens of the deferential scheme laid out in 28 U.S.C.
105 § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.
106 2000). We give deference to a state court decision for “any
107 claim that was adjudicated on the merits in State court
108 proceedings” unless the decision was either “contrary to, or
109 involved an unreasonable application of, clearly established
110 Federal law, as determined by the Supreme Court of the United
111 States,” 28 U.S.C. § 2254(d)(1), or the decision “was based on an
112 unreasonable determination of the facts in light of the evidence
113 presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).
114 The “contrary to” requirement “refers to the holdings, as
115 opposed to the dicta, of . . . [the Supreme Court’s] decisions as
116 of the time of the relevant state-court decision.” (Terry)
117 Will. v. Taylor, 120 S. Ct. 1495, 1523 (2000). The inquiry
118 into whether the decision was based on an “unreasonable
119 determination of the facts” constrains a federal court in its
120 habeas review due to the deference it must accord the state
121 court. See id.
5
122 Under the “contrary to” clause, a federal habeas court
123 may grant the writ if the state court arrives at a
124 conclusion opposite to that reached by . . . [the
125 Supreme Court] on a question of law or if the state
126 court decides a case differently than . . . [the
127 Supreme Court] has on a set of materially
128 indistinguishable facts. Under the “unreasonable
129 application” clause, a federal habeas court may grant
130 the writ if the state court identifies the correct
131 governing legal principle from . . . [the Supreme
132 Court’s] decisions but unreasonably applies that
133 principle to the facts of the prisoner’s case.
134 Id.
135 Section 2254(d)(2) speaks to factual determinations made by
136 the state courts. See 28 U.S.C. § 2254(e)(1). While we presume
137 such determinations to be correct, the petitioner can rebut this
138 presumption by clear and convincing evidence. See id. Absent an
139 unreasonable determination in light of the record, we will give
140 deference to the state court’s fact findings. See id.
141 § 2254(d)(2).
142 Dowthitt seeks a COA from this court on the following
143 issues3: (1) actual innocence, (2) ineffective assistance of
144 counsel, (3) admission of DNA evidence without a factual
145 predicate, (4) State misconduct, (5) failure to instruct the jury
3
Dowthitt states in his opening brief that he does not
appeal all of the issues decided by the district court; he also
states that he does not appeal all of the sub-issues within the
issues he does appeal. As such, he preserves only the briefed
issues for this appeal. See 28 U.S.C. § 2253(c)(3) (“certificate
of appealability . . . shall indicate which specific issue or
issues” are the basis for relief); see also Trevino v. Johnson,
168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that issues not
briefed on appeal are deemed waived).
6
146 on lesser-included offenses, and (6) the district court’s limited
147 evidentiary hearing.
148 A. Actual Innocence
149 “Claims of actual innocence based on newly discovered
150 evidence have never been held to state a ground for federal
151 habeas relief absent an independent constitutional violation
152 occurring in the underlying state criminal proceeding.” Herrera
153 v. Collins, 506 U.S. 390, 400 (1993).4 Rather, a claim of actual
154 innocence is “a gateway through which a habeas petitioner must
155 pass to have his otherwise barred constitutional claim considered
156 on the merits.” Id. at 404. In order for Dowthitt to obtain
157 relief on this claim, “the evidence must establish substantial
158 doubt about his guilt to justify the conclusion that his
159 execution would be a miscarriage of justice unless his conviction
160 was the product of a fair trial.” Schlup v. Delo, 513 U.S. 298,
161 316 (1995) (emphasis added).
162 The Herrera Court did assume, arguendo, “that in a capital
163 case a truly persuasive demonstration of ‘actual innocence’ made
164 after trial would . . . warrant habeas relief if there were no
165 state avenue open to process such a claim.” 506 U.S. at 417.
166 However, this circuit has rejected this theory. See Graham v.
4
“This rule is grounded in the principle that federal
habeas courts sit to ensure that individuals are not imprisoned
in violation of the Constitution — not to correct errors of
fact.” Id.
7
167 Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied, 120 S.
168 Ct. 1830 (2000).
169 Thus, Dowthitt must first raise substantial doubt about his
170 guilt, which would then cause us to examine any barred
171 constitutional claims.5 Dowthitt’s main argument in support of
172 his innocence is that his son Delton confessed to killing
173 Gracie.6 Dowthitt bases this claim on the following: a signed
174 declaration by his nephew Billy Sherman Dowthitt that Delton told
175 him that “Delton killed his girlfriend”; an unsigned affidavit of
176 David Tipps, a former prison inmate in Delton’s prison block,
177 stating that Delton claimed to have killed both girls; a signed
178 affidavit by Joseph Ward, a defense investigator, who states he
179 drew up the affidavit that Tipps later refused to sign out of
180 fear for himself; a signed affidavit of James Dowthitt,
181 Dowthitt’s brother, that his son Billy told him that Delton said
182 he had killed both girls; and Dowthitt’s own written proffer of
183 innocence.
5
See section II.C, infra, which discusses a procedurally
barred claim.
6
In his reply brief, Dowthitt also simply lists other
arguments in support of his actual innocence claim, such as
Delton’s prior violent conduct and the lack of physical evidence.
However, because he did not address these sub-issues in his
opening brief, we will not consider them. See Pyles v. Johnson,
136 F.3d 986, 996 n.9 (5th Cir. 1998) (“An appellant abandons all
issues not raised and argued in his initial brief on appeal.”
(internal quotations and citation omitted)); see also Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
inadequately argued issues are considered waived).
8
184 Not finding it necessary to conduct an evidentiary hearing,
185 the state habeas court rendered its decision based upon the
186 record. The court found that Delton “did not recant his trial
187 testimony” that Dowthitt killed Gracie and that Billy “never
188 stated that Delton . . . said he killed both girls.”
189 The federal district court did, however, hold an evidentiary
190 hearing on Dowthitt’s actual innocence claim. Delton again
191 testified in this evidentiary hearing that his father killed
192 Gracie and that he never told Billy otherwise. The court held
193 Dowthitt’s other proffered statements inadmissible hearsay and
194 found that even if Billy’s statement were to be considered, they
195 failed to provide any convincing account of the events.
196 Determining, in addition, that the state findings were not
197 unreasonable, the district court held that Dowthitt’s claim of
198 actual innocence fell far short of the threshold set by the
199 Supreme Court in Herrera.
200 We conclude that Dowthitt has not raised “substantial doubt”
201 as to his guilt. Dowthitt’s newly discovered evidence consists
202 solely of affidavits, and these affidavits are “particularly
203 suspect . . . because they consist of hearsay.” Herrera, 506
204 U.S. at 417. What Delton allegedly told others is hearsay and
205 does not fall under any exception to the hearsay rule. Cf. FED.
206 R. EVID. 804(b)(3) (statement against interest exception requires
207 that the declarant be unavailable, and in this case, Delton, far
208 from being unavailable, testified at trial and at the district
9
209 court’s evidentiary hearing). Not only do Dowthitt’s proffers
210 consist of hearsay (some with multiple levels), one is also
211 unsigned. As such, this evidence is not nearly strong enough to
212 raise a substantial doubt about Dowthitt’s guilt. Cf. Schlup,
213 513 U.S. at 331 (finding that the “sworn testimony of several
214 eyewitnesses that . . . [the petitioner] was not involved in the
215 crime” raised a sufficient issue that required an evidentiary
216 hearing).
217 In addition, even if we were to consider Billy’s hearsay
218 affidavit, we agree with the State that it does not possess
219 sufficient “indicia of reliability” due to its inconsistency with
220 the physical evidence. The physical evidence established that
221 Gracie (who was considered Delton’s girlfriend) died from knife
222 wounds to her throat after being sexually assaulted, while her
223 younger sister Tiffany was strangled. Billy, however, states
224 that Delton said he strangled his girlfriend, while Dowthitt
225 sexually assaulted and stabbed the “little girl.” As this does
226 not comport with the physical evidence, Billy’s statements do not
227 provide us with a convincing account of the events.
228 Furthermore, what Dowthitt puts forth is actually not “newly
229 discovered” evidence. He presented the substance of the
230 affidavits at his trial. In particular, as the state habeas
231 court found, “Delton’s first confession, in which he stated that
232 he killed both girls, was admitted in evidence.” Delton was
233 cross-examined as to his plea agreement and his prior
10
234 inconsistent confession.7 Thus, the jury had the opportunity to
235 take into account both versions of the murders and determine
236 which was more credible. The jury, with the ability to listen to
237 live testimony, was in a better position to judge the credibility
238 of the witnesses and the accounts of the events; absent a lack of
239 support in the record, we will not second guess their
240 determination. See United States v. Ramos-Garcia, 184 F.3d 463,
241 466 (5th Cir. 1999) (stating that the jury evidently did not
242 believe the alternative explanation of the events and that the
243 court would “‘not second guess the jury in its choice’”); United
244 States v. Kaufman, 858 F.2d 994, 1004 (5th Cir. 1988) (finding
245 that it was a “serious mistake . . . to second-guess judgments
246 that . . . [were made] firsthand”).
247 We find that Dowthitt’s proffered evidence establishing his
248 actual innocence fails to raise a substantial doubt as to his
249 guilt.
250 B. Ineffective Assistance of Counsel
251 Dowthitt must make a substantial showing of a denial of his
252 Sixth Amendment right to counsel to obtain a COA. His
253 ineffective assistance of counsel claim meets the threshold
7
During the State’s rehabilitation of Delton’s testimony,
Delton’s attorney testified as to a prior consistent statement:
that, prior to the plea agreement, Delton had told him that his
father killed Gracie. The state court, on direct appeal, found
that the admission of the attorney’s testimony was not erroneous.
11
254 question under AEDPA, § 2254(d)(1), that the rule of law be
255 clearly established at the time of the state court conviction in
256 1992. This is so because the merits of an ineffective assistance
257 of counsel claim are governed by the well-established rule of
258 Strickland v. Washington, 466 U.S. 668 (1984). Dowthitt must
259 establish both prongs of the Strickland test in order to prevail.
260 First, he “must show that counsel’s performance was deficient.”
261 Id. at 687. Second, he “must show that the deficient performance
262 prejudiced . . . [his] defense.” Id.
263 Deficient performance is established by showing “that
264 counsel’s representation fell below an objective standard of
265 reasonableness.” Id. at 688; Hernandez v. Johnson, 213 F.3d 243,
266 249 (5th Cir. 2000). Moreover, as the Supreme Court has
267 counseled, a “fair assessment of attorney performance requires
268 that every effort be made to eliminate the distorting effects of
269 hindsight . . . and to evaluate the conduct from counsel’s
270 perspective at the time.” Strickland, 466 U.S. at 689. Thus,
271 our scrutiny of counsel’s performance is highly deferential. See
272 id. We must be particularly wary of “argument[s] [that]
273 essentially come[] down to a matter of degrees. Did counsel
274 investigate enough? Did counsel present enough mitigating
275 evidence? Those questions are even less susceptible to judicial
276 second-guessing.” Kitchens v. Johnson, 190 F.3d 698, 703 (5th
277 Cir. 1999).
12
278 Prejudice ensues when “there is a reasonable probability
279 that, but for the counsel’s unprofessional errors, the result of
280 the proceedings would have been different.” Clark v. Johnson,
281 --- F.3d ----, 2000 WL 1285270, *7 (5th Cir. 2000) (internal
282 quotations omitted) (quoting Strickland, 466 U.S. at 694). “A
283 reasonable probability is a probability sufficient to undermine
284 confidence in the outcome.” Strickland, 466 U.S. at 694.
285 In his ineffective assistance of counsel claim, Dowthitt
286 raises several sub-issues concerning his mitigation defense,
287 investigation, and closing arguments. We will examine each of
288 his claims in turn.
289 1. Failure to Present a Mitigation Defense
290 Based on Mental Illness
291 Dowthitt argues that trial counsel failed to present a
292 mitigation defense based on mental illness. In support of this
293 argument, Dowthitt points to several aspects of his life and
294 trial. He states that his habeas counsel located records
295 indicating he suffered from mental illness that were not
296 discovered by trial counsel. A 1964 re-admission form from
297 Austin State Hospital shows that a young Dowthitt was diagnosed
298 as having a “schizophrenic reaction” of a “chronic paranoid type”
299 and was committed temporarily. The admission history also states
300 that when Dowthitt was hospitalized due to an automobile accident
301 in August 1962, a test “showed slight brain damage.” In
302 addition, Dowthitt points to Sergeant Walter Blakeslee’s
13
303 statement of July 14, 1964 recommending that Dowthitt be
304 discharged from the Air Force. Blakeslee stated “it was evident
305 to . . . [him] that Airman Dowthitt was suffering from some
306 mental deficiency.”
307 Dowthitt also relies heavily on declarations from Dr. Paula
308 Lundberg-Love and Dr. Faye E. Sultan, mental health experts hired
309 by habeas counsel. Lundberg-Love stated that her “clinical
310 impression was that . . . [Dowthitt] was not sadistic or
311 sociopathic.” She further wrote that Dowthitt’s “profile was
312 consistent with paranoid and schizophrenic features” and that he
313 suffers from depression. Sultan stated in her affidavit that the
314 interrogation videotapes showed Dowthitt’s “severe mental
315 problems” and that the trial mental health expert’s “examination
316 was cursory.” She also wrote that Dowthitt “functions quite
317 peacefully and successfully within the prison environment,”
318 rebutting the predictions made at trial about his potential for
319 future dangerousness.
320 Dowthitt argues that trial counsel’s affidavits provide
321 further support for their deficient performance with regard to
322 his mitigation defense. He states that, by their own words,
323 trial counsel did not investigate mental health defenses because
324 they “had no knowledge that Defendant suffered brain damage,” and
325 “he appeared sane and competent at all times.” Dowthitt further
326 quotes trial counsel’s affidavit: “During our many interviews
327 Defendant never appeared to be suffering from any mental problems
14
328 other than being upset and unhappy about his circumstances.”
329 Dowthitt asserts that such impressions on the part of trial
330 counsel were not reasonable because he was on anti-depressants
331 during that time, because his video-taped interrogation exposes
332 his unstable state of mind, and because the Lundberg-Love and
333 Sultan declarations confirm his mental illness.
334 Citing to Goss v. State, the State responds that Texas
335 caselaw has discounted mitigation evidence not relevant to the
336 crime or future dangerousness. 826 S.W.2d 162, 165 (Tex. Crim
337 Ohio App. 1992), cert. denied, 509 U.S. 922 (1993). The State further
338 argues that, even in the face of Dowthitt’s repeated denials of
339 any mental problems, trial counsel retained a psychiatrist to
340 examine Dowthitt. The State also points out that Dowthitt
341 received funds for neuropsychological expert assistance during
342 the state habeas corpus proceedings, but that no evidence from
343 that expert’s testing has ever been presented.
344 As for the reports of Lundberg-Love and Sultan, the State
345 asserts that they are precluded from consideration because they
346 were not presented to the state courts. Further, the State
347 claims that Dowthitt has not established cause and prejudice for
348 his failure to develop this evidence below. Finally, citing to
349 the district court’s findings, the State argues that even if the
350 reports were considered, they are insufficient because Lundberg-
351 Love and Sultan appeared to have formed their impressions from
352 speaking with Dowthitt’s habeas counsel.
15
353 In reply, Dowthitt argues that under the Supreme Court’s
354 decision in (Terry) Williams v. Taylor, the “nexus” requirement
355 for mitigation evidence is erroneous. He further states that
356 although the State continuously refers to “brain damage,” he is
357 contesting trial counsel’s failure with regard to “mental
358 illness.” And, Dowthitt asserts that the Lundberg-Love and
359 Sultan reports are not barred from consideration because he has
360 established “cause” via the denial of funding to obtain experts
361 by the state habeas courts.
362 As for Dowthitt’s brain damage claim, the state habeas court
363 found that Dowthitt was competent to stand trial, that no
364 neuropsychological expert had found that Dowthitt suffered from
365 brain damage, and that Dowthitt exhibited no signs of brain
366 damage. These findings8 are not unreasonable in light of the
367 record, and Dowthitt has not presented clear and convincing
368 evidence rebutting their presumption of correctness. Moreover,
369 Dowthitt concedes these findings in his reply brief by abandoning
370 his initial reliance, in part, on brain damage. He states that
371 “mental illness . . . is the mitigation evidence upon which . . .
372 [he] bases his ineffectiveness claims.”
373 As for the evidence indicating “mental illness” (the Austin
374 State Hospital and the Air Force records), we are bound by the
8
The state habeas court also found trial counsel’s
affidavits, explaining that Dowthitt did not appear to be
suffering from mental problems, to be credible.
16
375 state habeas court’s findings that these records included
376 “information which could have hurt . . . [Dowthitt’s] case.”9
377 Such information included, among other data, the following: that
378 Dowthitt attempted to rape his eight-year old niece, that he had
379 allegedly molested the same girl when she was five, that he had
380 an immature personality (as opposed to psychotic tendencies), and
381 that he “showed a temper and insisted on having his own way.” In
382 light of these details, the state habeas court’s findings are
383 clearly supported by the record. See 28 U.S.C. § 2254(d)(2).
384 Thus, even assuming arguendo that trial counsel were
385 deficient in failing to discover these medical records,10
386 Dowthitt was not prejudiced in his defense. See Buxton v.
387 Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989) (“Strickland allows
388 the habeas court to look at either prong first; if either one is
389 found dispositive, it is not necessary to address the other.”).
390 There is no “reasonable probability” that the outcome would have
391 been different because the evidence was double edged in nature.
9
The state habeas court also found that Dowthitt was not
medicated during trial with any anti-depressant or other mind-
altering medication.
10
We note that Dowthitt steadfastly denied to his trial
counsel that he had any mental problems. See Strickland, 466
U.S. at 691 (“The reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s own
statements or actions.”). Still, trial counsel did retain a
psychiatrist, Dr. Fred Fason, to examine Dowthitt; the Sixth
Amendment does not require counsel to continue searching until
they find an expert willing to provide more beneficial testimony
on their behalf.
17
392 As such, trial counsel’s actions in not discovering and
393 presenting the records to the jury to bring out indications of
394 mental illness do not create a “probability sufficient to
395 undermine confidence in the outcome.” Strickland, 466 U.S. at
396 694.
397 The state habeas court did not make additional findings
398 dealing with Dowthitt’s asserted mental illness because Dowthitt
399 did not present any other evidence to that court. The Lundberg-
400 Love and Sultan affidavits were introduced for the first time to
401 the district court on federal habeas review. Thus, we must
402 initially answer the threshold question of whether we are
403 precluded from considering these affidavits. Although both the
404 State and Dowthitt argue this issue as one of “factual
405 development” under § 2254(d) and (e),11 it is more accurately
406 analyzed under the “exhaustion” rubric of § 2254(b).12
407 “We have held that a habeas petitioner fails to exhaust
408 state remedies when he presents material additional evidentiary
409 support to the federal court that was not presented to the state
410 court.” Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)
11
Section 2254(e) deals with when a petitioner is entitled
to an evidentiary hearing in federal district court even though
he has failed to develop the factual bases of his claims in state
habeas proceedings.
12
Section 2254(b)(1)(A) states, in part, that “a writ of
habeas corpus . . . shall not be granted unless it appears that
the Applicant has exhausted the remedies available in the courts
of the State.”
18
411 (emphasis added); see also Young v. Lynaugh, 821 F.2d 1133, 1139
412 (5th Cir. 1987), abrogation on other grounds recognized by
413 Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989); Brown v.
414 Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983). Furthermore, “we
415 are unwilling to . . . accommodate new factual allegations in
416 support of a previously asserted legal theory, even though these
417 factual allegations came into existence after the state habeas
418 relief had been denied.” Joyner v. King, 786 F.2d 1317, 1320
419 (5th Cir. 1986) (emphasis added).
420 Thus, we must first determine whether this claim is before
421 us “in a significantly different and stronger evidentiary posture
422 than it was before the state courts.” Joyner, 786 F.2d at 1320.
423 We find that Dowthitt does not allege “new facts” via the
424 affidavits of the two experts because “all crucial factual
425 allegations were before the state courts at the time they ruled
426 on the merits” of Dowthitt’s habeas petition. See Young, 821
427 F.2d at 1139; cf. Graham, 94 F.3d at 969 (finding no exhaustion
428 in the case because petitioner did present significant new facts
429 in his federal petition). Dowthitt had presented to the state
430 habeas court his assertions of mental illness of the
431 schizophrenic, paranoid type. The Lundberg-Love and Sultan
432 affidavits add little to those claims.
433 While we find that consideration of these affidavits is not
434 precluded, we do not find them to demonstrate a substantial
435 showing of the denial of the Sixth Amendment right to counsel.
19
436 Even if trial counsel had obtained this information, Dowthitt
437 fails to demonstrate that such information would have altered the
438 jury’s judgment. Sultan’s affidavit is based on her review of a
439 portion of the paper record, and she did not personally interview
440 Dowthitt. We also agree with the district court’s assessment
441 that “much of Dr. Sultan’s initial declaration is based on her
442 discussions with habeas counsel rather than on independent
443 analysis” because her statements put forth information that she
444 could not have known otherwise.13
445 Lundberg-Love’s affidavit also presents similar problems.
446 She stated that she could have testified to Dowthitt’s mental
447 trauma “that he was experiencing as a result of witnessing Delton
448 sexually assault Gracie after he had cut her throat and killed
449 her sister prior to . . . [Dowthitt’s] arrival back at the murder
450 scene.”14 As the jury had decided not to believe Dowthitt’s
451 claims, this version of the murders would not be credited during
452 sentencing. Therefore, even assuming arguendo that trial
453 counsel’s performance was deficient,15 Dowthitt fails to make a
13
For example, Sultan states that Dowthitt “spent much of
the interrogation hooked up to a polygraph machine, looking
terrified and confused.” However, she does not list the
interrogation videotapes among the materials that she reviewed.
14
Lundberg-Love also noted that she would have testified
regarding the consequences of his mental illness.
15
We pause briefly to address the parties’ arguments
regarding the “nexus” requirement for a mitigation defense. So
far as the State is asserting that mitigating evidence “not
connected to the crime or future dangerousness” cannot be
20
454 substantial showing of prejudice on this Strickland claim as he
455 does not demonstrate a sufficient probability that the alleged
456 errors of trial counsel undermined confidence in the outcome.
457 See, e.g., Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir.), cert.
458 denied, 527 U.S. 1055 (1999) (“The potential negative impact of
459 the retardation evidence, in addition to the cold-blooded nature
460 of the murder and . . . [defendant’s] other violent conduct,
461 persuades us that the outcome of the sentencing would not have
462 been different if counsel would have investigated further.”).
463 2. Failure to Competently Prepare and Use Dr. Fason
464 Dowthitt next asserts constitutional error with regard to
465 trial counsel’s inadequate development of Dr. Fred Fason’s
466 testimony. Counsel retained Dr. Fason, a psychiatrist, to
467 examine Dowthitt on several issues regarding Dowthitt’s mental
468 state. Dowthitt argues that trial counsel did not competently
469 prepare Dr. Fason and did not call Dr. Fason as a witness during
470 trial.
considered, it is not consistent with the Supreme Court’s most
recent statement on this issue: “Mitigating evidence unrelated
to dangerousness may alter the jury’s selection of penalty, even
if it does not undermine or rebut the prosecution’s death-
eligibility case.” (Terry) Williams v. Taylor, 120 S. Ct. 1495,
1516 (2000). While the jury can take into account the “totality
of available mitigation evidence,” id. at 1515, “a tactical
decision not to present character evidence during the penalty
phase of a capital murder trial because it would open the door
for incidents of prior misconduct . . . [is] not unsound.”
Barrientes, 221 F.3d at 774.
21
471 The state habeas court noted the integrity of trial counsel
472 and found their affidavits to be credible. In their affidavits,
473 trial counsel stated that Dr. Fason had a “lengthy interview”
474 with Dowthitt and “spent many hours reviewing various tapes and
475 discussing this case” with counsel. Dowthitt, in turn, points to
476 Dr. Fason’s May 13, 1992 notes and states that they “indicate a
477 very short jailhouse interview.” He further asserts that he
478 “remembers” the interview being “exceedingly short.” Dowthitt
479 does not explain how the notes “indicate” the length of the
480 interview. Dowthitt’s personal beliefs, although they may be
481 genuine, do not present clear and convincing evidence that would
482 rebut the state court’s findings.16
483 Dowthitt also asserts that trial counsel did not request Dr.
484 Fason to conduct an evaluation for mitigation purposes. The
485 State responds, however, that a letter in trial counsel’s files
486 reveals that just such an evaluation was requested. Dowthitt has
487 failed to raise a substantial issue that trial counsel was not
488 reasonable in pursuing a mitigation defense.
489 In addition, Dowthitt contests trial counsel’s decision not
490 to call Dr. Fason to testify on Dowthitt’s behalf at trial. He
16
Dowthitt also refers to jailhouse records that would
indicate the time spent in the particular interview. He contends
that the State has not released them. However, he does not
develop this argument further and, as such, has not adequately
briefed this issue for our consideration. See Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
inadequately argued issues are considered waived).
22
491 claims that Dr. Fason’s report would have demonstrated that he
492 was not dangerous. This assertion fails to meet the deficient
493 performance prong of Strickland. Although Dr. Fason’s report
494 contains some information relating to mitigating factors,
495 statements detrimental to Dowthitt are also included that clearly
496 indicate his unwillingness to testify in Dowthitt’s favor. Thus,
497 trial counsel’s decision not to put a witness on the stand who
498 himself is not entirely favorable toward Dowthitt, and
499 furthermore, who would have to respond with more damaging
500 information during the State’s cross-examination, is not
501 objectively unreasonable.17 Trial counsel also elicited
502 favorable information during cross-examination of the State’s
503 expert witness, Dr. Walter Quijano.18 This further supports the
504 conclusion that the trial counsel’s decision not to put Dr. Fason
505 on the stand was a matter of trial strategy. See Strickland, 466
506 U.S. at 699.
17
In addition, trial counsel’s affidavit, found credible
by the state habeas court, states that Dr. Fason reported to them
personally that he believed that Dowthitt was a very dangerous
individual.
18
Dowthitt vehemently contests the beneficial impact of
Quijano’s testimony on cross-examination. However, given the
damage that could have been caused by Dr. Fason’s testimony and
that some of Dr. Quijano’s statements could have been considered
in Dowthitt’s favor by the jury, trial counsel’s decision was the
result of strategic considerations, one which will not be second-
guessed on federal habeas appeal.
In addition, Dowthitt notes that another capital case has
recently been reversed due to Dr. Quijano’s improper testimony.
However, that does not automatically mandate a finding of error
in this case.
23
507 Dowthitt also argues that trial counsel should have found
508 another expert who would be willing to testify to Dowthitt’s lack
509 of future dangerousness based on his mental condition. As the
510 district court noted, even in the face of Dowthitt’s steadfast
511 denial of any mental problems, trial counsel, “in an abundance of
512 caution,” retained a psychiatrist. Thus, the state habeas court
513 finding that trial counsel were “relentless” in their pursuit of
514 Dowthitt’s defense is not unreasonable. We also find that
515 “[t]rial counsel performed appropriately, recognizing the
516 possible issues regarding . . . [the defendant’s] mental
517 capacity, recognizing the need for expert assistance in exploring
518 these issues,” and employing a defense expert. White v. Johnson,
519 153 F.3d 197, 207 (5th Cir. 1998) (emphasis added). Under the
520 circumstances, trial counsel was not deficient by not canvassing
521 the field to find a more favorable defense expert.
522 Dowthitt has failed to make a substantial showing on this
523 ineffective assistance counsel claim. We find that reasonable
524 jurists would not debate the propriety of granting a COA on this
525 issue.
526 3. Failure to Present Dowthitt’s Mercy-Evoking Background as
527 Mitigation Through Family Members
528 Dowthitt claims that trial counsel committed constitutional
529 error by not presenting mitigation evidence via family members
530 during the punishment phase of the trial. He argues that the
531 following family members’ affidavits demonstrate that they would
24
532 have testified to Dowthitt’s abusive upbringing, his mental
533 difficulties, and his loving relationship with some of his
534 children: Darlene Glover, Dowthitt’s sister; Stacey Dowthitt,
535 Dowthitt’s step-son; and Danna Taft, Dowthitt’s wife.
536 As an initial matter, the State argues that consideration of
537 these affidavits is barred on federal habeas appeal because they
538 were not presented to the state courts. The State bases this
539 argument on § 2254(d) and (e). As we explained in section
540 II.B.1, this issue is more appropriately analyzed under the
541 § 2254(b) exhaustion framework. Thus, if the case is in a
542 significantly stronger evidentiary framework before the federal
543 habeas court than it was before the state habeas court, the
544 exhaustion requirement has not been satisfied. See section
545 II.B.1, supra. Dowthitt replies that the substance of these
546 affidavits was presented to the state courts through the
547 affidavits of the state habeas investigator detailing his
548 interviews with these family members. We agree with Dowthitt
549 that no “new facts” are presented to us and that the state habeas
550 court had the critical facts before it. See Young, 821 F.2d at
551 1139. Thus, the exhaustion requirement of § 2254(b) has been
552 satisfied.19
19
We note that the state habeas court found that Dowthitt
failed to obtain affidavits of his family members and did not
show that they could not be obtained without court order. We
agree with the district court’s assessment that Dowthitt was not
justified in not presenting those affidavits to the state habeas
court. However, this impacts the need for a federal evidentiary
25
553 The state habeas court found that Dowthitt “did not want any
554 of his family testifying on his behalf.” Counsel will not be
555 deemed ineffective for following their client’s wishes, so long
556 as the client made an informed decision. See Autry v. McKaskle,
557 727 F.2d 358, 361 (5th Cir. 1984) (“By no measure can . . . [the
558 defendant] block his lawyer’s efforts and later claim the
559 resulting performance was constitutionally deficient.”).
560 Dowthitt contests the state habeas court’s finding by arguing
561 that he did not understand the import of mitigating evidence (and
562 trial counsel did not even discuss it with him). We agree with
563 the district court that Dowthitt’s personal belief (in a proffer
564 submitted at the January 7, 2000 hearing) does not present clear
565 and convincing evidence to rebut the state court’s finding.20
566 In addition, trial counsel, in an affidavit found to be
567 credible by the state habeas court, stated that they “attempted
568 to talk to anyone” who would cooperate21 and that many potential
569 witnesses did not want to become involved. Thus, trial counsel
570 attempted to delve into Dowthitt’s background, but were hindered
571 by external forces. Unlike trial counsel in (Terry) Williams v.
hearing under § 2254(e) and is not relevant to the exhaustion
determination under § 2254(b). See, infra, section II.F.
20
We also note that in their affidavit, found credible by
the state habeas court, trial counsel stated they “discussed the
case in detail” with Dowthitt.
21
The state habeas court found that they did speak with
Stacey Dowthitt.
26
572 Taylor, 120 S. Ct. 1495 (2000), counsel’s actions here would be
573 characterized as reasonable trial strategy because they attempted
574 to investigate Dowthitt’s background and were thwarted by
575 uncooperative potential witnesses.
576 Trial counsel further stated in their affidavit that some
577 people who did speak with them had knowledge of factors
578 detrimental to Dowthitt. We have held that the “failure to
579 present . . . evidence would not constitute ‘deficient’
580 performance within the meaning of Strickland if . . . [counsel]
581 could have concluded, for tactical reasons, that attempting to
582 present such evidence would be unwise.” Williams v. Cain, 125
583 F.3d 269, 278 (5th Cir. 1997); cf. (Terry) Williams, 120 S. Ct.
584 at 1497-98 (finding that counsel’s tactical decision to focus on
585 defendant’s voluntary confession, without undertaking any sort of
586 investigation into defendant’s background, was not justifiable
587 trial strategy).
588 Thus, Dowthitt has not made a substantial showing that the
589 actions of his trial counsel were objectively unreasonable. As
590 he fails to demonstrate sufficient evidence to meet the deficient
591 performance prong of the Strickland test, he has not shown that
592 the issue is debatable among reasonable jurists. We therefore
593 deny Dowthitt’s request for a COA based on this ineffective
594 assistance of counsel claim.
595 4. Failure to Investigate for the Guilt/Innocence Phase and the
596 Punishment Phase
27
597 Dowthitt argues that trial counsel did not adequately
598 conduct their own investigation. In this regard, he makes the
599 following contentions: trial counsel did not interview any
600 significant State witnesses, “deferring” instead to the State’s
601 version of the events without performing independent analysis;
602 they did not discover that Darla Dowthitt’s own trial had been
603 repeatedly reset and did not inform the jury about her pending
604 felony case for indecency with a child; they failed to adequately
605 impeach Delton by not presenting his prior misconduct; and they
606 did not follow through on their own DNA testing.
607 The state habeas court found that, based on the credible
608 affidavits of trial counsel, “trial counsel extensively reviewed
609 the State’s file and evidence collected in this case.” Trial
610 counsel also stated in their affidavit that they hired DNA,22
611 fingerprinting,23 and psychiatric experts. The record
612 illustrates that these experts made findings in line with the
613 State’s evidence. We find that trial counsel did not blindly bow
614 to the State’s evidence and attempted to dispute it. That they
22
The State also asserts that Dowthitt has failed to
present any exculpatory DNA evidence, despite court funding for
further testing. Dowthitt responds that there was no residue
left upon which to conduct such testing, “even at trial.” We
question how Dowthitt can make this statement and yet fault trial
counsel for allegedly not having their own DNA tests performed.
23
The state habeas court also found specifically that
counsel hired a qualified fingerprint expert, who confirmed the
State’s findings.
28
615 were not successful in their attempts does not render their
616 performance deficient.
617 The state habeas court also found that “trial counsel
618 investigated Delton’s background.” This finding is reasonable in
619 light of the record. Trial counsel knew about Delton’s prior
620 misconduct and actually attempted to admit evidence of this
621 during trial. The trial court, however, excluded them (after a
622 hearing on the issue) as violating Texas Rule of Criminal
623 Evidence 609(b). Dowthitt’s only response to this is that the
624 Texas rules of evidence should be found offensive to the
625 Constitution because they unfairly and arbitrarily prejudiced his
626 defense.
627 However, the very case that Dowthitt cites for support
628 recognizes that the fundamental fairness concept works to
629 discredit evidentiary rules in very limited circumstances. See
630 Fuller v. State, 829 S.W.2d 191, 207-08 (Tex. Crim. App. 1992).
631 The Fuller court emphasized that the Constitution does not easily
632 undo the rules of evidence:
633 Every rule of evidence works a hardship on some
634 litigants part of the time, and it is easy to
635 sympathize with the frustration of any party whose most
636 promising strategy turns out to be objectionable under
637 the law. But we are not at liberty to relieve every
638 such disappointment with an ad hoc suspension of the
639 Rules.
640 Id. at 207. The Fuller court noted that “the report Appellant
641 sought to introduce in this case is precisely the sort of thing
642 which the hearsay rule, in spite of its many exceptions, is still
29
643 specifically designed to exclude.” Id. at 208. Similarly, in
644 this case, Dowthitt sought to introduce evidence that went to the
645 heart of the rules of evidence against using prior misconduct to
646 show conformity with the alleged conduct.24 This is not the sort
647 of instance that demands the use of the Constitution to disregard
648 fundamental evidentiary rules.
649 We also find that trial counsel’s performance was not
650 deficient with regard to discovering Darla Dowthitt’s felony
651 indictment for indecency with a child. Trial counsel requested
652 and received a discovery order for the criminal record of all
653 State witnesses. Dowthitt falls far short of demonstrating
654 deficient performance in this regard.
655 Dowthitt has not made a substantial showing of ineffective
656 assistance of counsel due to inadequate investigation. As such,
657 he is not entitled to a COA on this claim.
658 5. Inadequate Closing Arguments at the Guilt/Innocence
659 Phase and the Penalty Phase
660 Dowthitt argues that trial counsel’s closing arguments were
661 inadequate because they undermined their own case by
662 misrepresenting facts and making unjustifiable concessions. He
663 focuses primarily on counsel’s comments regarding the DNA
664 results. Trial counsel stated in closing argument, in relevant
665 part:
24
We note that the State points out that trial counsel did
elicit some evidence of past misconduct from Quijano and Delton.
30
666 The blood, all right. There’s been testimony there’s
667 some blood on the bottle . . . . We get down here to
668 Picture 75 and 76 and we get a spot on the bottom that
669 we know was blood because they scraped that spot off
670 and they sent it in and the DNA people said 95 probably
671 Gracie’s blood. But that’s on the bottom and that’s a
672 little tiny bit and does that mean that the bottle sat
673 down in or rolled around or came near or got on a piece
674 of bloody clothing or in some other matter connected
675 with the blood? We assume that 95 percent is close
676 enough that it is Gracie’s blood. It doesn’t tell us
677 how it got there.
678 State Trial Transcript, Vol. XXXIV at 1270-71 (emphasis added).
679 Dowthitt contends it was a plain misstatement to convey that
680 there was a ninety-five percent probability the blood was
681 Gracie’s because the DNA test merely revealed that ninety-five
682 percent of the population was excluded, with Gracie being among
683 the five percent possible contributors of the blood.25 Dowthitt
684 further points to his expert’s testimony on habeas that if the
685 jury had been informed of the significant number of people who
686 share that genetic profile, the jury would have more accurately
687 assessed the evidence.
688 The state habeas court found that “trial counsel were
689 zealous advocates for . . . [Dowthitt’s] defense during closing
690 argument.” Dowthitt falls far short of producing clear and
691 convincing evidence to rebut the presumption of correctness we
692 afford this finding under AEDPA. While counsel’s
693 characterization of the test results were not entirely on point,
25
The DNA testing also revealed that Dowthitt and Delton
were part of the ninety-five percent excluded as possible
contributors.
31
694 the closing arguments as a whole were thorough and effective.
695 The record demonstrates that trial counsel drove home the point
696 that the DNA evidence did not tie Dowthitt to the crime — that
697 the blood could have gotten on the bottle in any number of other
698 ways. We find without reservation that trial counsel’s
699 performance was sufficient in this regard.
700 Dowhtitt also argues that trial counsel was deficient during
701 the closing arguments for the penalty phase. Dowthitt faults
702 trial counsel for statements that Dowthitt suffered from a
703 “disease” that resulted in his acting in a “frenzy, like the
704 feeding of a shark or something.” Dowthitt also asserts that
705 trial counsel “‘argued’ against Mr. Dowthitt being a future
706 danger by positing that his only victims in prison would be
707 ‘effeminate men.’”
708 Dowthitt cannot manufacture deficient performance by
709 selectively extracting phrases from trial counsel’s closing
710 argument and mischaracterizing them. While we would not endorse
711 every aspect of trial counsel’s statements, nevertheless, taken
712 in full context, those statements for the most part were
713 beneficial because they went toward demonstrating that Dowthitt’s
714 actions were not deliberate26 and that he did not present a
26
Pursuant to Section 37.071(b) of the Texas Code of
Criminal Procedure, the jury had to answer two special issues
during the punishment phase. Special Issue No. 1 dealt with
deliberateness: “[w]hether the conduct of the defendant that
caused the death of the deceased was committed deliberately and
with reasonable expectation that the death of the deceased or
32
715 continuing danger.27 Furthermore, we note we have held that
716 counsel’s acknowledgment of aspects of the case can be a proper
717 “effort to bolster credibility with the jury.” Kitchens v.
718 Johnson, 190 F.3d 698, 704 (5th Cir. 1999). We will not second
719 guess such strategic decisions under the teaching of Strickland.
720 Dowthitt’s assertions regarding trial counsel’s closing
721 arguments fail to demonstrate substantial doubt on his Sixth
722 Amendment right. As such, he is not entitled to a COA on this
723 ineffective assistance of counsel claim.
724 In sum, the state habeas court found “trial counsel were
725 relentless in the defense of their client in the face of a very
726 bad set of facts.” In addition, the court found that Dowthitt
727 failed “to show that the outcome of his trial would have been
728 different but for the alleged instances of ineffective assistance
729 of counsel.” Dowthitt has not presented clear and convincing
730 evidence to rebut the presumption of correctness we afford to
731 state court findings under AEDPA. Furthermore, our review also
732 reveals that the state court was not unreasonable in its finding
733 in light of the record. We therefore find that Dowthitt has not
734 demonstrated a substantial showing of the denial of his
another would result.”
27
Special Issue No. 2 dealt with future dangerousness:
“[w]hether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing
threat to society.”
33
735 constitutional right to counsel, and we deny his application for
736 a COA on this claim.
737 C. Admission of DNA Evidence Without a Factual Predicate
738 Dowthitt argues that he was denied due process of law under
739 the Fourteenth Amendment when DNA evidence28 was admitted at
740 trial without a proper factual predicate. Pointing to the lack
741 of a prior hearing to determine the admissibility of the DNA
742 evidence, Dowthitt asserts that his constitutional rights were
743 violated. The state habeas court found that Dowthitt “failed to
744 object to the trial court’s failure to hold a hearing on the
745 reliability of the DNA evidence and waived any error.”
746 In all cases in which a state prisoner has defaulted
747 his federal claims in state court pursuant to an
748 independent and adequate state procedural rule, federal
749 habeas review of the claims is barred unless the
750 prisoner can demonstrate cause for the default and
751 actual prejudice as a result of the alleged violation
752 of federal law, or demonstrate that failure to consider
753 the claims will result in a fundamental miscarriage of
754 justice.
755 Coleman v. Thompson, 501 U.S. 722, 750 (1991). The state
756 procedural rule at issue in this instance is adequate because it
28
During the trial’s guilt/innocence phase, the State
presented expert testimony regarding DNA testing performed on
“blood scrapings” taken from a beer bottle discovered in
Dowthitt’s auto shop. The expert testified that DQ alpha typing
was done on the sample due to its small size. The State’s
evidence indicated that although “typing” was far less
determinative than DNA “fingerprinting,” it permitted a
conclusion that Gracie was within the five percent of the
population not excluded as contributors of the blood.
34
757 has been “strictly or regularly followed.” Amos v. Scott, 61
758 F.3d 333, 339 (5th Cir. 1995). “This Circuit has held that the
759 Texas contemporaneous objection rule is strictly or regularly
760 applied evenhandedly to the vast majority of similar claims, and
761 is therefore an adequate procedural bar.” Corwin v. Johnson, 150
762 F.3d 467, 473 (5th Cir. 1998).
763 As for the cause-and-prejudice exception, cause is
764 demonstrated by establishing that some objective external factor
765 “‘impeded counsel’s efforts to comply with the State’s procedural
766 rule.’” Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1999)
767 (quoting Coleman). Dowthitt maintains that cause existed for his
768 default. The failure to object he contends, is the result of
769 trial counsel’s ineffectiveness. “[C]ounsel’s ineffectiveness
770 will constitute cause only if it is an independent constitutional
771 violation.” Coleman, 501 U.S. at 755; see also Ellis v. Lynaugh,
772 883 F.2d 363, 367 (5th Cir. 1989) (citing Murray v. Carrier, 477
773 U.S. 478, 488 (1986)). Dowthitt puts forth two arguments to
774 establish that counsel’s ineffective assistance was of
775 constitutional dimension: (1) counsel’s failure to request the
776 hearing and (2) counsel’s concession that the blood from the
777 bottle was conclusively Gracie’s.
778 First, Dowthitt does not provide further detail (beyond his
779 assertion) as to why the failure to object rose to the level of a
780 Sixth Amendment violation. Because this issue is inadequately
781 briefed, we do not consider it on appeal. See Trevino, 168 F.3d
35
782 at 181 n.3. Furthermore, we have previously held that a mere
783 allegation “that . . . [trial counsel] provided ineffective
784 assistance of counsel in failing to so object[]” is not
785 sufficient to establish constitutionally prohibited conduct.
786 Washington v. Estelle, 648 F.2d 276, 278 (5th Cir. 1981) (stating
787 that it is “not for federal courts to speculate as to possibly
788 [sic] reasons for failure to object.” (internal quotations and
789 citation omitted)). Dowthitt’s second argument for cause also
790 fails because we found in section II.B.5 that trial counsel’s
791 statements regarding DNA evidence did not rise to the level of
792 constitutional error.
793 Dowthitt also cannot rely on the “fundamental miscarriage of
794 justice” exception to the procedural bar because he did not
795 demonstrate substantial doubt as to his actual innocence. See
796 section II.A, supra; see also Fearance v. Scott, 56 F.3d 633, 637
797 (5th Cir.), cert. denied, 515 U.S. 1153 (1995) (rejecting the
798 defendant’s attempt to expand the “narrow scope” of the
799 fundamental miscarriage of justice exception).
800 Thus, we find that Dowthitt’s claim regarding the admission
801 of DNA evidence is procedurally barred from federal habeas
802 review.29 We deny Dowthitt’s request for a COA on this claim
29
We also note that the state habeas court found, “[i]n
the alternative, the State proved the reliability of the DNA
evidence during the trial and there was no due process
violation.”
36
803 because he does not demonstrate that reasonable jurists would
804 find it debatable that the procedural ruling was correct.30
805 D. State Misconduct
806 Dowthitt argues that state misconduct violated his right to
807 due process and a fair trial. In this regard, he makes the
808 following claims: intimidation of potential defense witness David
809 Tipps, breach in the chain of custody of the blood sample,
810 misrepresentation of the DNA evidence to the jury, failure to
811 disclose a felony indictment of State witness Darla Dowthitt,
812 and mischaracterization of Dowthitt’s interrogation statement
813 that he “was there the whole time.” We will address each of
814 these arguments in turn.31
815 1. Intimidation of Potential Defense Witness
30
As we find that the first prong of the Slack COA inquiry
for procedural claims has not been met, we do not need to address
the second prong.
31
As an initial matter, we note that the state habeas
court found Dowthitt did not adequately brief his state
misconduct claims and thus did not properly present them for
review. This indicates a lack of exhaustion on Dowthitt’s part
because he did not “fairly apprise the . . . state of the federal
rights which were allegedly violated.” Deters v. Collins, 985
F.2d 789, 795 (5th Cir. 1993). However, as the state habeas
court did not explicitly find that Dowthitt waived his misconduct
claims and went on to make findings regarding those claims, we
find that the state court had a “fair opportunity to pass upon
the claim[s].” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.
1999) (internal quotatios and citation omitted).
37
816 Dowthitt first asserts that David Tipps, Delton’s jailmate,
817 would have testified that Delton claimed he killed both girls;
818 however, after a visit from two State investigators, Tipps
819 refused to testify. Dowthitt submits the affidavit of Joseph
820 Ward, his state habeas investigator, in support of the claim that
821 the State agents intimidated Tipps into not testifying. Ward
822 states in his affidavit that Tipps would not sign an affidavit
823 out of fear for himself.
824 We must first decide whether this claim was “adjudicated on
825 the merits in State court proceedings.” 28 U.S.C. § 2254(d).
826 The state trial court held a hearing outside the presence of the
827 jury on this issue, and Dowthitt contested the trial court’s
828 ruling on direct appeal. See Dowthitt v. State, 931 S.W.2d 244,
829 267 (Tex. Crim. App. 1996). However, Dowthitt did not raise this
830 issue in his state habeas proceeding, but did do so in his brief
831 to the federal district habeas court.
832 “When faced with a silent or ambiguous state habeas
833 decision, the federal court should ‘look through’ to the last
834 clear state decision on the matter.” Jackson v. Johnson, 194
835 F.3d 641, 651 (5th Cir. 1999). Although the state habeas
836 decision is silent on this particular misconduct claim, the Texas
837 Court of Criminal Appeals, on direct appeal, unambiguously dealt
838 with the issue. “Having determined that the issue was
839 adjudicated on the merits in state courts, we owe deference to
38
840 their disposition of the claim under § 2554.” Barrientes, 221
841 F.3d at 780.
842 The Court of Criminal Appeals determined that Tipps’s fears
843 of being a “snitch,” rather than a fear of prosecution, motivated
844 his decision not to testify in Dowthitt’s defense. It based this
845 holding, in part, on Tipps’s continued defiance even in the face
846 of the trial court holding him in contempt. We conclude that
847 reasonable jurists could not debate whether the decision of the
848 Court of Criminal Appeals was “contrary to, or involved an
849 unreasonable application of, clearly established . . . [Supreme
850 Court] law.” 28 U.S.C. § 2254(d)(1). As such, reasonable
851 jurists could not “debate whether (or, for that matter, agree
852 that) the petition should have been resolved in a different
853 manner.” Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000). We
854 find that Dowthitt is not entitled to a COA on this state
855 misconduct claim.
856 2. Breach in the Chain of Custody of the Blood Sample
857 Dowthitt claims that the blood from which the DNA was
858 extracted originally came from a knife, and not a beer bottle, as
859 presented at trial. In support, he offers the photograph of an
860 evidence label that has the typewritten words “scrapings from
861 lock blade knife” crossed out and replaced with the handwritten
862 words “from bottle.” Dowthitt argues that the State thus
39
863 presented false testimony, violating his Fourteenth Amendment
864 rights.
865 The state habeas court made several findings in this regard,
866 including: “no blood scrapings other than those from a beer
867 bottle recovered from [Dowthitt’s] shop were submitted for
868 testing[]”; “‘scrapings from lock blade knife’ [on evidence
869 label] was in error[]”; “only scrapings from a bottle, and not a
870 knife, were submitted for DNA testing.”
871 These findings are not unreasonable “in light of the
872 evidence presented in the State court proceeding.” 28 U.S.C.
873 § 2254(d)(2). Given the high deference we accord to state court
874 determinations, we find that reasonable jurists would not debate
875 whether it should be have been resolved in a different manner,
876 and as such, we deny to issue a COA on this claim.
877 3. Misrepresentation of DNA Evidence to the Jury
878 Dowthitt argues that the State misrepresented the
879 conclusiveness of the DNA evidence to the jury during closing
880 arguments. He contests the following statement: “You know it is
881 Gracie’s blood on that beer bottle.”
882 First, we need to consider if this claim was adjudicated on
883 the merits during state proceedings for § 2254(d) deference
884 purposes. Dowthitt failed to object to this statement during
885 trial and did not raise it on direct appeal. He did argue the
886 issue during state habeas proceedings, but the state habeas court
40
887 made no findings in this regard. Therefore, we must examine the
888 following factors to determine whether an adjudication on the
889 merits occurred:
890 (1) what the state courts have done in similar cases;
891 (2) whether the history of the case suggests that the
892 state court was aware of any ground for not
893 adjudicating the case on the merits; and (3) whether
894 the state courts’ opinions suggest reliance upon
895 procedural grounds rather than a determination on the
896 merits.
897 Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
898 As for the first factor, Texas courts have consistently held
899 that unless the prosecutor’s comments were “clearly calculated to
900 inflame the minds of the jurors and is of such character as to
901 suggest the impossibility of withdrawing the impression
902 produced,” the failure to object timely waives any error. Van
903 Zandt v. State, 932 S.W.2d 88, 93 n.1 (Tex. App. — El Paso 1996,
904 pet. ref’d). We find that the prosecutor’s argument in this case
905 does not fall within the exception to the failure to make a
906 contemporaneous objection. As Dowthitt did not object at trial,
907 the first factor points toward an adjudication on the merits.
908 Similarly, the history of the case also favors adjudication
909 on the merits. Rather than arguing the contemporaneous objection
910 rule, the State addressed this claim on the merits the first time
911 it was raised, in federal habeas proceedings. As for the third
912 factor, we have previously held that under Texas law, “a denial
913 of relief by the Court of Criminal Appeals serves as a denial of
914 relief on the merits.” Miller v. Johnson, 200 F.3d 274, 281 (5th
41
915 Cir. 2000). Thus, the state court’s denial of habeas relief does
916 not indicate a procedural adjudication.
917 We find that an “adjudication on the merits” under § 2254(d)
918 occurred with regard to this state misconduct claim. Therefore,
919 we conduct a deferential review, as mandated by AEDPA. We next
920 proceed to analyze whether Dowthitt made a substantial showing of
921 the denial of his due process and fair trial rights.
922 In habeas corpus proceedings, we review allegedly improper
923 prosecutorial statements under a strict standard. “The
924 statements must render the trial fundamentally unfair.”
925 Barrientes, 221 F.3d at 753. “[I]t is not enough that the
926 prosecutors’ remarks were undesirable or even universally
927 condemned. The relevant question is whether the prosecutors’
928 comments so infected the trial with unfairness as to make the
929 resulting conviction a denial of due process.” Darden v.
930 Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and
931 citations omitted).
932 We have held that “[i]n the context of closing argument,
933 . . . [the prosecutor is not] prohibited from reciting to the
934 jury those inferences and conclusions she wishes the jury to draw
935 from the evidence so long as those inferences are grounded upon
936 evidence.” United States v. Munoz, 150 F.3d 401, 414-15 (5th
937 Cir. 1998), cert. denied, 525 U.S. 1112 (1999) (internal
938 quotations omitted). In this case, the prosecutor’s statement is
42
939 a reasonable one, requesting the jury to draw a desired
940 conclusion based upon the evidence.32
941 As such, we find that the state court denial of Dowthitt’s
942 claims reasonable under the standards set forth by § 2254(d).
943 Dowthitt does not demonstrate a substantial showing of the denial
944 of his due process rights and, therefore, is not entitled to a
945 COA in this regard.
946 4. Failure to Disclose Felony Indictment of State Witness
947 Dowthitt argues that the State failed to disclose that Darla
948 Dowthitt, Dowthitt’s daughter, was under felony indictment
949 (indecency with a child) when she testified for the prosecution
950 at the guilt/innocence phase of the trial. Pointing to the fact
951 that Darla’s own trial date was reset several times, Dowthitt
952 claims that an oral agreement had been struck between the State
953 and Darla. Thus, the nondisclosure violated the Supreme Court’s
954 mandate in Brady v. Maryland, 373 U.S. 83 (1963). The State
955 responds that no deal was struck for Darla’s testimony, and as
956 such, Dowthitt has no viable Brady claim.
957 The suppression of evidence material to guilt or punishment
958 violates a defendant’s fundamental due process rights. See id.
959 at 87. The Court has “since held that the duty to disclose such
960 evidence is applicable even though there has been no request by
961 the accused, and that the duty encompasses impeachment evidence
32
The State presented the DNA results and the testimony of
experts explaining those results during trial.
43
962 as well as exculpatory evidence.” Strickler v. Greene, 527 U.S.
963 263, 280 (1999) (citations omitted). Such evidence is material
964 “if there is a reasonable probability that, had the evidence been
965 disclosed to the defense, the result of the proceeding would have
966 been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995)
967 (internal quotations and citations omitted).
968 “To prevail on a Brady claim, the defendant must [thus]
969 demonstrate that (1) the prosecution suppressed evidence; (2) the
970 evidence was favorable to him; and (3) the evidence was ‘material
971 either to guilt or punishment.’” Vega v. Johnson, 149 F.3d 354,
972 363 (5th Cir. 1998), cert. denied., 525 U.S. 1119 (1999). In
973 this case, there is no dispute that the indictment existed and
974 the prosecution did not reveal it to the defense. This evidence
975 arguably would have been favorable to Dowthitt’s case.
976 While the first two prongs of the test have been satisfied
977 here, Dowthitt fails on the third prong — materiality. “The
978 existence of an indictment, as opposed to a conviction, is not
979 generally admissible to impeach.” Id. (citing as example
980 Michelson v. United States, 335 U.S. 469, 482 (1948)). “Under
981 Texas law, the existence of the indictment becomes admissible
982 only if the witness, on direct examination, misrepresents himself
983 as having no trouble with the law . . . . The only other
984 exception, for witnesses whose testimony might be affected by the
985 indictment . . . [is a] relationship between [the] prosecution
44
986 and [the witness’s] case.” Id. (internal quotations and citation
987 omitted).
988 First, Darla made no such misrepresentations, and thus the
989 first exception would not have applied. Dowthitt also cannot
990 rely on the second exception. The state habeas court found that
991 the “prosecutors did not offer Darla a deal for her testimony and
992 did not reset her case to avoid a felony conviction for
993 impeachment purposes.” We presume this finding to be correct
994 under § 2254(e)(1). Dowthitt has not clearly and convincingly
995 refuted the evidence in the record supporting the state court’s
996 determination that no suppression of evidence occurred because no
997 deal even existed.33
998 We find that Dowthitt fails to demonstrate the requisite
999 “reasonable probability” that the outcome would have been
1000 different. Thus, he does not make a substantial showing of the
1001 denial of a constitutional right and is not entitled to a COA on
1002 this claim.
1003 5. Mischaracterization of Dowthitt’s Interrogation Statement
33
Testifying at the punishment phase, Darla unequivocally
stated that no deal existed, that she did not believe a deal
existed, and that she would not make a deal because she was “not
guilty.” The prosecutor filed an affidavit during state habeas
proceedings also affirming that no deal was made with Darla to
procure her testimony. In response, Dowthitt states that Darla
eventually received a lenient sentence for a plea and early
release from probation. This information, by itself, is not
sufficient to overcome the above evidence to the contrary (as any
number of factors could have accounted for the eventual
disposition of her case).
45
1004 Detective Hidalgo testified during the guilt/innocence phase
1005 that Dowthitt stated during the interrogation, “I was there the
1006 whole time.”34 Dowthitt asserts that this statement was
1007 misrepresented as a admission of being present at the scene. He
1008 claims that the video of the interrogation demonstrates that
1009 Dowthitt was actually indicating disbelief by repeating the
1010 statement.
1011 As we have done in Part II.D.2 and II.D.3, supra, we must
1012 first determine whether an adjudication on the merits occurred in
1013 state courts. With no statement from the habeas court directly
1014 on point, we are directed to look through to the last clear state
1015 decision on the issue. See Jackson v. Johnson, 194 F.3d 641, 651
1016 (5th Cir. 1999). On direct appeal, the Texas Court of Criminal
1017 Appeals found that Dowthitt’s “admission to being present during
1018 the murders occurred around 1:00 a.m.” Dowthitt v. State, 931
1019 S.W.2d 244, 253 (Tex. Crim. App. 1996). Thus, we find that this
1020 issue was adjudicated on the merits in state proceedings, and we
1021 examine the result with the deference demanded by AEDPA. See 28
1022 U.S.C. § 2254(d).
34
The interrogation went, in relevant part, as follows:
Mr. Dowthitt: Man, I didn’t do nothing.
Hidalgo: But you were there, not soon after it
happened, weren’t you? You weren’t far
away.
Hendricks: He was there the whole time.
Hidalgo: And you know what’s bothering you?
Mr. Dowthitt: I was there the whole time.
46
1023 Beyond his assertions that he did not make an admission,
1024 Dowthitt does not demonstrate that the state court’s adjudication
1025 was unreasonable in light of the record.35 Thus, reasonable
1026 jurists would not “debate whether . . . the petition should have
1027 been resolved in a different manner.” Slack v. McDaniel, 120 S.
1028 Ct. 1595, 1603-04 (2000). Accordingly, we deny Dowthitt a COA on
1029 this claim.
1030 E. Instruction on Lesser-Included Offenses
1031 Dowthitt argues that the trial court erred in failing to
1032 instruct the jury on lesser-included offenses of murder, felony
1033 murder or aggravated sexual assault, thus violating his rights
1034 under the Fifth, Sixth, Eighth, and Fourteenth Amendments.36 He
1035 asserts that evidence existed that would support convictions on
1036 the lesser crimes, as opposed to capital murder: the beer bottle
1037 with Gracie’s blood indicated sexual assault, but not murder; the
35
Both the state court and the district court below
reviewed the videotapes and disagreed with Dowthitt’s
characterization of the statement.
36
We note that the state habeas court found Dowthitt “did
not object to the absence of a lesser-included instruction.”
However, the court did not explicitly find that, as a matter of
law, Dowthitt waived any error (which the court did with regard
to the admission of DNA evidence). This, combined with the fact
finding that Dowthitt was not guilty of the lesser-included
offense, indicates that the state habeas court made its decision
on the merits. We therefore do not find a procedural bar to this
claim. Furthermore, “[h]aving determined that the issue was
adjudicated on the merits in state courts, we owe deference to
their disposition of the claim under § 2254.” Barrientes v.
Johnson, 221 F.3d 741, 780 (5th Cir. 2000).
47
1038 knife alleged to be the murder weapon was not connected to the
1039 sexual assault; and the jury knew that Delton confessed to
1040 killing both girls in his first confession. The State responds
1041 that one cannot base an argument for a lesser-included offense on
1042 the jury disbelieving portions of the State’s case. In reply,
1043 Dowthitt maintains, given that no relevant physical evidence
1044 actually connected him to the murder, the jury had before it
1045 multiple scenarios, which lead to different crimes.
1046 We do not agree because Dowthitt fails to make a substantial
1047 showing that his case met the requirements that would necessitate
1048 instructions on lesser-included offenses.37 Contrary to
1049 Dowthitt’s assertions, “[i]t is not enough that the jury may
1050 disbelieve crucial evidence pertaining to the greater offense.
1051 Rather, there must be some evidence directly germane to a
1052 lesser-included offense for the factfinder to consider before an
1053 instruction on a lesser-included offense is warranted.” Jones v.
1054 Johnson, 171 F.3d 270, 274 (5th Cir. 1999; see also Banda v.
1055 State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) (“The credibility
1056 of the evidence and whether it conflicts with other evidence or
1057 is controverted may not be considered in determining whether an
1058 instruction on a lesser-included offense should be given.”).
37
A state trial court may not, under Beck v. Alabama, 447
U.S. 625 (1980), refuse a lesser-included offense instruction “if
the jury could rationally acquit on the capital crime and convict
for the noncapital crime.” Cordova v. Lynaugh, 838 F.2d 764, 767
(5th Cir.), cert. denied, 486 U.S. 1061 (1988).
48
1059 As such, Dowthitt has not presented clear and convincing
1060 evidence to rebut the state habeas court’s finding that “there
1061 was no evidence showing that [Dowthitt] was guilty [only] of the
1062 lesser offenses of rape and murder.” Dowthitt thus fails to
1063 demonstrate that reasonable jurists would debate the propriety of
1064 not granting an instruction for lesser-included offenses. With
1065 no substantial showing on this claim, Dowthitt does not meet the
1066 requirement for a COA.
1067 F. District Court’s Evidentiary Hearing
1068 Dowthitt asserts that the district court erred in providing
1069 only a limited evidentiary hearing on his actual innocence claim
1070 and in not holding a hearing on his other claims. He argues that
1071 the lack of factual development below was not due to his actions
1072 or lack thereof. Dowthitt faults particularly the state habeas
1073 court judge’s actions. He states that the judge who presided
1074 over his state district court habeas proceedings, had recused
1075 himself from trial because one of the trial counsel was his own
1076 attorney in a divorce proceeding. The judge, however, did not
1077 recuse himself from the habeas proceedings, refused to conduct an
1078 evidentiary hearing on the habeas claims, and accepted verbatim
1079 the prosecution’s proposed findings.
1080 Section 2254(e)(2) guides our determination of whether these
1081 requested evidentiary hearings were appropriate in this case.
1082 “If an applicant had failed to develop the factual basis of a
49
1083 claim in State court proceedings,” the federal court may hold an
1084 evidentiary hearing if:
1085 (A) the claim relies on
1086 (i) a new rule of constitutional law, made
1087 retroactive to cases on collateral review by the
1088 Supreme Court, that was previously unavailable; or
1089 (ii) a factual predicate that could not have been
1090 previously discovered through the exercise of due
1091 diligence; and
1092 (B) the facts underlying the claim would be sufficient
1093 to establish by clear and convincing evidence that but
1094 for the constitutional error, no reasonable factfinder
1095 would have found the applicant guilty of the underlying
1096 offense.
1097 28 U.S.C. § 2254(e)(2).
1098 “Under the opening clause of § 2254(e)(2), a failure to
1099 develop the factual basis of a claim is not established unless
1100 there is a lack of diligence, or some greater fault, attributable
1101 to the prisoner or the prisoner’s counsel.” (Michael) Williams
1102 v. Taylor, 120 S. Ct. 1479, 1488 (2000). Furthermore, the
1103 (Michael) Williams Court associated the “failure to develop”
1104 standard with the cause inquiry for procedural default. See id.
1105 at 1494.
1106 Dowthitt argues that he exercised due diligence because he
1107 requested evidentiary hearings in state habeas proceedings, and
1108 those requests were denied. Thus, he asserts that his failure to
1109 develop his habeas claims are excused under § 2254(e)(2). We do
1110 not agree. Mere requests for evidentiary hearings will not
1111 suffice; the petitioner must be diligent in pursuing the factual
1112 development of his claim. As the state habeas court found,
50
1113 Dowthitt did not present affidavits from family members and did
1114 not show that they “could not be obtained absent an order for
1115 discovery or a hearing.” In response, Dowthitt now argues that
1116 his “proffers” of what would be presented at a hearing
1117 constituted due diligence. We do not find his argument
1118 persuasive. Given that the family members were willing to
1119 testify at a hearing, Dowthitt could have easily obtained their
1120 affidavits. A reasonable person in Dowthitt’s place would have
1121 at least done as much. Dowthitt’s arguments that lack of funding
1122 prevented the development of his claims are also without merit.
1123 Obtaining affidavits from family members is not cost prohibitive.
1124 Thus, Dowthitt has not rebutted the state habeas finding in this
1125 regard.
1126 We find that Dowthitt has not made a substantial showing of
1127 meeting the requirements set forth in § 2254(e)(2) that would
1128 entitle him to a federal habeas evidentiary hearing. As such, he
1129 is not entitled to a COA on this claim.38
38
Even if Dowthitt had met the § 2254(e)(2) standard, he
would still have to clear another hurdle to obtain a COA. “After
the [§ 2254(e)] standard is met, the district court’s denial is
reviewed for abuse of discretion.” Clark v. Johnson, --- F.3d
----, 2000 WL 1285270, *9 (5th Cir. 2000). When the district
court has “‘sufficient facts before it to make an informed
decision on the merits of [the habeas petitioner’s] claim,’ it
does not abuse its discretion in failing to conduct an
evidentiary hearing.” Barrientes, 221 F.3d at 770; see also
United States v. Fishel, 747 F.2d 271, 273 (5th Cir. 1984)
(“Where, as here, allegations contained in a habeas petition are
either contradicted by the record or supported by conclusory
factual assertions incapable of being tested in an evidentiary
hearing, no hearing is required.”). Given that the district
51
1130 III. CONCLUSION
1131 For the foregoing reasons, we DENY Dowthitt’s request for a
1132 COA on all of his claims and VACATE the stay of execution.
court analyzed whether Dowthitt received a “full and fair
hearing” in the state courts, found that Judge Alworth’s conduct
was proper, and wrote a thorough opinion taking into account all
credible evidence, reasonable jurists would not disagree that the
district court acted well within its discretion.
52