Foster v. Quarterman , 466 F.3d 359 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-70016
KENNETH EUGENE FOSTER,
Petitioner-Appellee-Cross-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant-Cross-Appellee.
Appeals from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
RHESA HAWKINS BARKSDALE:
Kenneth Eugene Foster was convicted in Texas state court of
capital murder during the course of a robbery in 1996 and sentenced
to death. The district court granted conditional habeas relief on
Foster’s claimed unconstitutional sentence under the Eighth
Amendment, as construed in Enmund v. Florida, 458 U.S. 782, 797-800
(1982), and Tison v. Arizona, 481 U.S. 137 (1987), because the jury
did not make the requisite factual findings: (1)whether Foster
acted with reckless indifference to human life; and (2) whether he
played a major role in the activities leading to the murder. For
Foster’s remaining 11 claims, the court denied relief and a
certificate of appealability (COA). See 28 U.S.C. §§ 2253, 2254.
The State appeals the conditional habeas-relief. Subsequent
to our recent denial of Foster’s COA request, Foster v. Dretke,
No. 05-70016, 2006 WL 616980 (5th Cir. 13 A.K. Marsh. 2006), petition for
cert. filed, (U.S. 7 June 2006) (No. 05-11488), Foster requested
another COA to pursue a stand-alone actual–innocence claim. In so
doing, he maintained a COA request for that claim had been
inadvertently omitted from his initial COA request. Oral argument
addressed the State’s appeal and the extremely belated COA request.
COA DENIED; conditional habeas relief granted by the district
court VACATED; habeas relief DENIED.
I.
On the evening of 14 August 1996, Foster and three others –
Mauriceo Brown, DeWayne Dillard, and Julius Steen – embarked on
armed robberies around San Antonio, Texas, beginning with Brown’s
announcing he had a gun and asking whether the others wanted to rob
people: “I have the strap, do you all want to jack?”. During the
guilt/innocence phase of Foster’s trial, Steen testified he rode in
the front seat, looking for potential victims, while Foster drove.
Steen and Brown testified to robbing two different groups at
gunpoint that night; the four men divided the stolen property
equally. The criminal conduct continued into the early hours of
the next day (15 August), when Foster began following a vehicle
driven by Mary Patrick.
2
Patrick testified: she and Michael LaHood, Jr. were returning
in separate cars to his house; she arrived and noticed Foster’s
vehicle turn around and stop in front of Michael LaHood’s house;
Patrick approached Foster’s vehicle to ascertain who was following
her; she briefly spoke to the men in the vehicle, then walked away
towards Michael LaHood, who had reached the house and exited his
vehicle; she saw a man with a scarf across his face and a gun in
his hand exit Foster’s vehicle and approach her and Michael LaHood;
Michael LaHood told her to go inside the house, and she ran towards
the door, but tripped and fell; she looked back and saw the gunman
pointing a gun at Michael LaHood’s face, demanding his keys, money,
and wallet; Michael LaHood responded that Patrick had the keys; and
Patrick heard a loud bang.
Michael LaHood died from a gunshot wound to the head. The
barrel of the gun was no more than six inches from his head when he
was shot; it was likely closer than that. Brown had similarly
stuck his gun in the faces of some of the night’s earlier robbery
victims.
Later that day, all four men were arrested; each gave a
written statement identifying Brown as the shooter. Brown admitted
being the shooter but denied intent to kill. He testified that he
approached Michael LaHood to obtain Patrick’s telephone number and
only drew his weapon when he saw what appeared to be a gun in
3
Michael LaHood’s possession and heard what sounded to him like the
click of an automatic weapon.
In May 1997, Foster and Brown were tried jointly for capital
murder committed in the course of a robbery. The jury found each
guilty of that charge and answered the special issues at the
penalty phase to impose a death sentence for each.
On direct appeal, Foster contended, inter alia: because he
did nothing more than agree to commit and participate in robberies,
his death sentence violated the Eighth Amendment; application of
Texas Penal Code § 7.02(b) (conspiracy party liability) violated
the Sixth and Fourteenth Amendments to the Constitution; and the
trial court erred in refusing a jury instruction on the lesser-
included offense of aggravated robbery. The Texas Court of
Criminal Appeals affirmed Foster’s conviction and sentence.
The court held, inter alia: Foster’s sentence did not violate
the Constitution because, before convicting him of capital murder
as a party, the jury had to determine he intended to promote the
commission of intentional murder; a law–of–the–parties instruction
under § 7.02(b) is appropriate when no such charge is in the
indictment because the statute describes attempt to carry out, not
the offense of, conspiracy; and a lesser-included–offense
instruction was not warranted because nothing in the record would
permit a rational jury to find Foster guilty only of aggravated
robbery and not murder in the course of a robbery. See Foster v.
4
State, No. 72,853 (Tex. Crim. App. 30 June 1999) (unpublished)
(TCCA Opn.). Three judges dissented, and would have held, inter
alia, that Foster was entitled to a lesser–included–offense
instruction. Id. at 33 (Mansfield, J., dissenting).
The Supreme Court of the United States denied a writ of
certiorari. Foster v. Texas, 529 U.S. 1057 (2000).
In April 1999, before the conclusion of his direct appeal,
Foster filed for state–habeas relief. After holding evidentiary
hearings, the state-habeas court issued findings of fact and
conclusions of law, recommending denial of relief; the Court of
Criminal Appeals denied relief in an unpublished order. Ex Parte
Foster, No. 50,823-01 (Tex. Crim. App. 6 A.K. Marsh. 2002).
The Supreme Court again denied a writ of certiorari. Foster
v. Texas, 537 U.S. 901 (2002).
Foster presented 14 claims in his federal-habeas petition,
including the actual–innocence claim for which he belatedly seeks
a COA from this court. Included with the petition were new
affidavits and other supporting evidence, and an evidentiary
hearing was requested. The State moved for summary judgment. On
3 March 2005, the district court granted conditional habeas relief
as to sentencing for three claims and denied relief, as well as a
COA, for the remaining 11. Among other rulings, the requested
evidentiary hearing was denied and the State’s summary-judgment
5
motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-
RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 A.K. Marsh. 2005).
Each side appealed. To do so, Foster requested a COA from our
court on two claims. Foster, 2006 WL 616980, addresses the denial
of that request.
II.
Review of this 28 U.S.C. § 2254 habeas proceeding is subject
to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v.
Johnson, 532 U.S. 782, 792 (2001). Before addressing the
conditional habeas relief granted by the district court, we
consider the belated COA request for a stand-alone actual-innocence
claim.
A.
Under AEDPA, Foster may not appeal the denial of habeas relief
unless he obtains a COA from either the district, or this, court.
28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack v. McDaniel,
529 U.S. 473, 478 (2000). Under Federal Rule of Appellate
Procedure 22(b)(1), the district court must first decide whether to
grant a COA before one can be requested here. As noted, the
district court denied a COA for the claim Foster seeks to appeal
here.
Obtaining a COA requires “a substantial showing of the denial
of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g.,
6
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529 U.S. at
483. For that requisite showing, an applicant usually must
demonstrate “reasonable jurists could debate whether (or, for that
matter, agree that) the [federal-habeas] petition should have been
resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further’”.
Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).
Where, as here, the district court’s habeas denial includes a
procedural ruling, as opposed to one on the underlying
constitutional claim, the showing is expanded. See Hall v. Cain,
216 F.3d 518, 521 (5th Cir. 2000). In that situation, the
applicant must show jurists of reason would find debatable whether:
the habeas petition states a valid claim of the denial of a
constitutional right; and the district court’s procedural ruling
was correct. Id.
In determining whether to grant a COA, this court is, inter
alia, limited “to a threshold inquiry into the underlying merit of
[Foster’s] claims”. Miller-El, 537 U.S. at 327. “This threshold
inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims.” Id. at 336. Instead, the
court must make “an overview of the claims in the habeas petition
and a general assessment of their merits”. Id. Because Foster was
convicted of capital murder and received the death penalty, “any
doubts as to whether a COA should issue must be resolved in [his]
7
favor”. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert.
denied, 531 U.S. 966 (2000).
For purposes of the mandated threshold inquiry, we recognize
that, in ruling on the merits, the district court was required by
AEDPA to defer, with limited exceptions, to the state court’s
resolution of Foster’s claims. The exceptions provided by AEDPA
turn on the character of the state court’s ruling.
First, such deference is mandated both for questions of law
and for mixed questions of law and fact, unless the state court’s
“decision ... was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States”. 28 U.S.C. § 2254(d)(1);
see Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000), cert.
denied, 532 U.S. 1039 (2001). A state court’s decision is
“contrary to clearly established federal law” under § 2254(d)(1)
“if it reaches a legal conclusion in direct conflict with a prior
decision of the Supreme Court or if it reaches a different
conclusion than the Supreme Court based on materially
indistinguishable facts”. Miniel v. Cockrell, 339 F.3d 331, 337
(5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004).
Second, such deference is required for the state court’s
“decision [unless it] was based on an unreasonable determination of
the facts in [the] light of the evidence presented in the State
court proceeding”. 28 U.S.C. § 2254(d)(2). On the merits,
8
pursuant to AEDPA, the state court’s factual findings are presumed
correct; in district court, Foster had “the burden of rebutting
[that] presumption ... by clear and convincing evidence”. 28
U.S.C. § 2254(e)(1). This threshold inquiry is considered against
the elements for Foster’s claim. Again, it is but one of the
procedures mandated by AEDPA for deciding whether a COA should be
granted.
As presented in state and federal court, Foster seeks a COA
for his claim he is innocent, as proven by: Dillard’s testimony
during a state-habeas evidentiary hearing; and an affidavit from
Steen presented for the first time during the federal-habeas
proceeding. Before addressing the request, we must decide whether
to consider it because of its untimeliness.
1.
Foster’s initial COA request to our court was filed on 1 June
2005 and addressed two claims (neither concerned actual innocence).
On 29 June 2005, the State filed its opposition; it did not, of
course, address actual–innocence, as Foster had not raised the
issue. Foster filed: a reply brief on 27 July 2005 for his COA
request; and a sur–reply on 11 October 2005 to the State’s reply
brief regarding its appeal from the conditional habeas–grant, in
which he also addressed his COA request. Neither of Foster’s reply
briefs addressed actual–innocence or claimed he had inadvertently
failed to include that issue in his COA application. (It is assumed
9
that, in replying to the State’s briefs, Foster’s counsel read
them. Obviously, in doing so, he should have noticed an actual-
innocence claim was not addressed.)
Foster did not make this inadvertent-failure assertion until
after our 13 March 2006 COA–denial. On 27 March 2006,
approximately ten months after Foster’s initial COA application was
filed, Foster’s counsel filed a “Motion for Consideration of
Inadvertently Omitted Issue”, claiming that, while reading our 13
March COA denial, he “immediately noticed that the opinion
addressed only two issues; there was no mention regarding [the
actual-innocence claim]”. That motion stated: “Counsel’s
fifty–page brief [for the initial request] included twelve pages of
argument about whether a reasonable and fair jury would more likely
have acquitted Mr. Foster in light of the accounts of Dwayne
Dillard and Julius Steen”; and this issue’s not being addressed in
the 13 March COA–denial “alarmed counsel”. Counsel then
acknowledged he had failed in the initial application to submit the
portion of his brief addressing Dillard and Steen, and asked our
court to consider the omitted issue.
Pursuant to AEDPA, there is no limitations period
governing the filing of COA requests. Of course, Foster’s 4 April
2005 notice of appeal satisfied the related limitations period for
filing an appeal. FED. R. APP. P. 4. In any event, in a situation
such as this, where Foster appealed the denial of relief on various
10
claims and requested a COA for that, he generally would have waived
any claim not addressed in his COA application/brief.
Foster’s situation, however, is somewhat different than the
usual case where a party waives a claim by failing to raise it.
Here, counsel claims he unintentionally failed to do so because he
filed the wrong brief.
As noted, Foster’s initial COA request to our court was
denied. Generally, we would not consider this new request.
Because the State’s appeal is pending in our court, however, we
will consider the COA request for the actual–innocence claim.
Counsel in future cases are warned that, should they seek to
likewise raise “inadvertantly-omitted” COA requests, they may well
not be allowed to do so, for obvious reasons. In this instance,
counsel’s purported reasons for failing to initially request a COA
on this issue are nothing short of inexcusable.
2.
Pursuant to a plea agreement, Steen testified at trial against
Brown and Foster; Dillard did not testify. Foster maintains
Dillard’s testimony in the state-habeas proceeding and Steen’s
affidavit in the federal-habeas proceeding (clarifying Steen’s
trial testimony) demonstrate Foster’s actual innocence and
ineligibility for the death penalty.
As of the state-habeas evidentiary hearing, Dillard had
already begun serving a life–sentence for another capital murder he
11
committed with Steen. Dillard testified: there was no agreement
to commit robberies the night of Michael LaHood's murder; although
he (Dillard) provided the gun, he had nothing to do with the
robberies or the murder; Foster was just the group's driver, not
the getaway driver; after the second robbery, Foster said he
wanted to stop, so Dillard took the gun back and believed no more
robberies would be committed that night; he directed Foster to
drive through the residential area where Michael LaHood lived;
Foster stopped because a woman flagged the car down and because
Steen told him to; there was no agreement to rob Michael LaHood;
and, after Brown shot Michael LaHood, Foster tried to leave but
Dillard would not let him.
Steen’s affidavit in the federal-habeas proceedings stated:
concerning his trial testimony that he “understood what was
probably fixing to go down” when Brown exited the vehicle at
Michael LaHood's residence, he understood, at that point (but not
before), what might happen; Steen did not think Foster knew what
was going to happen; there was no agreement to commit robbery;
everyone was shocked after Brown shot Michael LaHood; and by
testifying at trial he needed to stay awake because he was “riding
shotgun", he meant a person gets a “good view in the front seat”,
not that riding in that position means committing robberies.
In denying habeas relief in March 2002, the Court of Criminal
Appeals did not address Dillard’s testimony. Steen’s affidavit, of
12
course, was also not mentioned, because it was presented for the
first time during federal-habeas proceedings.
In addressing Foster’s actual–innocence claim, the district
court first noted Herrera v. Collins, 506 U.S. 390, 400 (1993),
precludes that claim’s being brought as an independent ground for
habeas relief. Foster, 2005 U.S. Dist. LEXIS 13862, at *40-42.
Rather, the district court noted an actual–innocence claim may be
used to raise an otherwise procedurally–defaulted habeas claim. It
cited Schlup v. Delo, 513 U.S. 298, 327 (1995), for the following
proposition: “[A] petitioner seeking to surmount a procedural
default through a showing of ‘actual innocence’ must establish it
is more likely than not that, in [the] light of the new evidence,
no juror, acting reasonably, would have voted to find the
petitioner guilty beyond a reasonable doubt”. Id. at *43.
The district court then stated: Dillard’s new testimony and
Steen’s affidavit merely repeat the same non–credible assertions
made by Brown’s trial testimony and Foster’s statements to police
(namely, that Brown exited the vehicle at Michael LaHood’s house
only to get Patrick’s telephone number); and the jury rejected
Brown’s testimony by finding him guilty of capital murder. The
court also stated the jury implicitly rejected Foster’s claims to
police that: he was not involved in the night’s robberies; he had
no idea Brown carried a gun when he approached Michael LaHood; and,
when Brown exited the vehicle, Foster did not think Brown was going
13
to rob Michael LaHood. The court held: because Dillard’s new
testimony and Steen’s affidavit merely repeat testimony the jury
heard and rejected, there is no reasonable possibility any rational
jury would have found Foster not guilty of capital murder based on
that testimony and affidavit. Foster, 2005 U.S. Dist. LEXIS
13862, at *48-49.
Foster conceded during oral argument his actual-innocence
claim is raised here only as a stand-alone claim. As the district
court held, actual–innocence is not an independently cognizable
federal-habeas claim. Dowthitt v. Johnson, 230 F.3d 733, 741-42
(5th Cir. 2000), cert. denied, 532 U.S. 915 (2001); see also Graves
v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003).
The Supreme Court recently decided House v. Bell, 126 S. Ct.
2064 (2006), a habeas case in which “House, protesting his
innocence, [sought] access to federal court to pursue habeas corpus
relief based on constitutional claims that are procedurally barred
under state law”, id. at 2068; and as a stand-alone claim for such
relief, id. at 2086. The Court concluded House provided
substantial evidence suggesting he might not have committed the
murder for which he was convicted; and thus held he satisfied the
Schlup standard, enabling him to use his actual–innocence claim to
raise an otherwise procedurally barred habeas claim. Id. at 2087.
The Court, however, “decline[d] to resolve” whether Herrera
left open the possibility of stand-alone actual–innocence claims.
14
Id. It further stated: even if a stand-alone actual–innocence
claim were hypothetically cognizable, House was not entitled to
relief on that basis, despite meeting the Schlup standard. Id. at
2087.
Absent an en banc, or intervening Supreme Court, decision, one
panel of this court may not overrule a prior panel’s decision.
E.g., Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997), cert.
denied, 523 U.S. 1014 (1998). Because House did not change the law
to recognize the validity of stand-alone actual–innocence claims,
this panel may not entertain Foster’s stand-alone claim. E.g.,
Dowthitt, 230 F.3d at 741-42. Accordingly, pursuant to the
earlier-described two-prong AEDPA standard for whether to grant a
COA, Foster is not entitled to a COA on this claim.
B.
In reviewing, under the deferential AEDPA standard, the
district court’s granting conditional habeas relief, its findings
are reviewed for clear error; conclusions of law, de novo. E.g.,
Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003), cert.
denied, 540 U.S. 1154 (2004). As discussed, pursuant to AEDPA,
federal-habeas relief cannot be granted “unless the challenged
state court proceeding resulted in: (1) ‘a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States’, 28 U.S.C. 2254(d)(1); or (2) ‘a decision that was
15
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding’. 28 U.S.C.
2254(d)(2)”. Id. A decision is not unreasonable merely because it
is incorrect; to be unreasonable, it must be both incorrect and
objectively unreasonable. Miller v. Dretke, 420 F.3d 356, 360 (5th
Cir. 2005).
As also discussed, a state court reaches an unreasonable
result when it correctly identifies the relevant precedent but
unreasonably applies that precedent to the facts. Wiggins v.
Smith, 539 U.S. 510, 520 (2003). Habeas relief will not be granted
when the “state court, at a minimum, reaches a satisfactory
conclusion”. Miller, 420 F.3d at 360 (internal quotation omitted).
On direct appeal and in his federal-habeas petition, Foster
claimed: pursuant to the Eighth Amendment, he was ineligible for
the death penalty “because he did not kill, attempt to kill, or
intend to kill [Michael] LaHood”. Foster, 2005 U.S. Dist. LEXIS
13862, at *76. At oral argument here, Foster based his Eighth
Amendment challenge largely on the above-described actual–innocence
claim, asserting he was ineligible for the death penalty because he
was actually innocent. Because we deny Foster a COA on that claim,
we do not consider it. Instead, we consider his Eighth Amendment
claim as presented to, and decided by, both the Court of Criminal
Appeals on direct appeal and the district court.
16
In rejecting this claim on direct appeal, the Court of
Criminal Appeals held the evidence supported the jury’s finding on
the following special issue, and with it, the death penalty. See
TCCA opn. at 31-32. That special issue asked whether the jury
“found from the evidence beyond a reasonable doubt that Kenneth
Foster actually caused the deceased’s death, or that he intended to
kill the deceased or another, or that he anticipated that a human
life would be taken”. Id. at 12 (internal quotation omitted)
(emphasis added). Because it was undisputed that Brown shot
Michael LaHood, the issue relevant to Foster was whether the jury
found he “anticipated that a human life would be taken”. Id.
The Court of Criminal Appeals had previously rejected similar
claims in Lawton v. State, 913 S.W.2d 542, 555 (Tex. Crim. App.
1995), because, “before an accused can be convicted of capital
murder as a party [as Foster was], it must first be determined
beyond a reasonable doubt that the accused harbored a specific
intent to promote or assist in the commission of intentional
murder”. TCCA opn. at 32. Therefore, for Foster’s direct appeal,
the court held it was inconsequential the jury may have found
“Foster only anticipated that death would result” from his
participation in the conspiracy. Id.
The district court held this direct-appeal holding
unreasonable under AEDPA. In addressing Foster’s Eighth Amendment
claim, the court first discussed applicable Supreme Court
17
precedent. Enmund, 458 U.S. 782, held the death penalty could not
be imposed on a getaway driver who not only neither committed
murder nor intended anyone be killed, but also did not even witness
the murder. Tison, 481 U.S. at 158, however, created an exception
to Enmund, holding the death sentence constitutional for an
accomplice: (1) whose participation in the crime was major; and (2)
who displayed “reckless indifference to human life”. Tison upheld
the death penalty for two brothers who helped arm prisoners for a
successful prison escape; aided that escape; participated in the
robbery of a family to further the escape; and then did nothing to
stop the murder of that family. Id. at 151.
Relying upon Supreme Court precedent discussed infra, the
district court granted Foster conditional habeas relief because a
jury had not made both requisite Tison findings: (1) that Foster
substantially participated in the robbery–conspiracy; and (2) that
he acted with reckless indifference to human life. Foster, 2005
U.S. Dist. LEXIS 13862, at *82-83. In so holding, as also
discussed infra, the court held the jury had made the reckless-
indifference finding. It held, however, that the jury had not been
required to make the first of the two required findings: that
Foster “had major participation in the felony committed, i.e., the
armed robbery conspiracy that culminated in [Michael] LaHood's
murder”. Id. at *80 (internal quotation omitted).
18
Along this line, the district court did not, however, accept
Foster’s claim that, as the group’s driver, he was per se
ineligible for the death penalty. The court ruled a rational jury
unquestionably could have made the above requisite major-
participant finding, based on the following evidence: when
arrested, Foster had a pair of cellular telephones from robberies
committed a few nights before the murder of Michael LaHood; on the
night Michael LaHood was killed, Foster drove his co-defendants
around neighborhoods with which he was familiar; he shared in the
proceeds of the night’s earlier robberies; no evidence suggested
anyone directed Foster “to take up his extended pursuit” of Mary
Patrick’s vehicle as she drove to Michael LaHood’s house; and Steen
believed Foster was in charge that night because he controlled
where the conspirators drove and when they stopped. Id. at *81.
Nevertheless, the district court held Apprendi v. New Jersey,
530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and
Blakely v. Washington, 542 U.S. 296 (2004), “make clear that only
a jury can make the factual determinations necessary to impose a
sentence of death on a criminal defendant”. Id. at *82 (emphasis
added). Foster’s conviction became final, however, in April 2000
(when the Supreme Court denied review from his direct appeal),
before Apprendi, Ring, and Blakely were decided. None of those
cases applies retroactively. Schriro v. Summerlin, 542 U.S. 348,
358 (2004) (Ring does not apply retroactively); In re Elwood, 408
19
F.3d 211, 213 (5th Cir. 2005)(Apprendi and Blakely do not apply
retroactively). Therefore, they do not apply to this case.
Accordingly, because, as the district court noted, no evidence
supports finding Foster intentionally murdered Michael LaHood or
intended that he be murdered, the court should have examined the
entire record of the state court proceedings to determine whether
any state court made the requisite Tison/Enmund findings. Clark v.
Johnson, 227 F.3d 273, 281 (5th Cir. 2000), cert. denied, 531 U.S.
1167 (2001).
Similar to the Court of Criminal Appeals’ decision reviewed in
Clark, it appears the Court of Criminal Appeals upheld Foster’s
death–sentence on a flawed legal theory, based on its 1995 decision
in Lawton. As noted supra, the Court of Criminal Appeals held
that, before convicting Foster, the jury had to determine he
specifically intended either to murder Michael LaHood or promote or
assist in that murder. The cases Lawton cites (for example, Tucker
v. State, 771 S.W.2d 523, 530 (Tex. Crim. App. 1988)) discuss the
§ 7.02(a) instruction, which states a defendant tried for capital
murder as an accomplice is death–penalty eligible only if he
intended to promote or assist in the commission of a capital
murder. TEX. PENAL CODE § 7.02(a).
Foster's jury was instructed pursuant to both §§ 7.02(a) and
(b). Section 7.02(b) does not require the same level of intent.
It allowed the jury to convict Foster if it found he should have
20
anticipated a co-conspirator might commit murder, even if Foster
did not intend for that murder to occur. TEX. PENAL CODE § 7.02(b).
Therefore, the Court of Criminal Appeals erred by relying on Lawton
to uphold Foster’s death sentence.
As discussed, our review does not end merely because the state
court’s decision was based on flawed reasoning. Neal v. Puckett,
286 F.3d 230, 246 (5th Cir. 2002) (federal habeas court reviews
only a state court’s decision, not the reasoning behind that
decision), cert. denied, 537 U.S. 1104 (2003). Therefore, as in
Clark, we examine the entire state-court record to determine
whether any state court made the requisite Enmund/Tison findings:
(1) that Foster played a major role in the criminal activities
leading to Michael LaHood’s death; and (2) that he displayed
reckless indifference to human life.
1.
Addressing the second required finding first, and as the
district court held, Foster obviously displayed reckless
indifference to human life. The jury found as much when it
answered the earlier-described special issue in the affirmative
(the jury could not answer that issue in the affirmative unless it
found, at a minimum, Foster anticipated a life would be taken).
The district court stated:
[I]nsofar as [Foster] argues there was legally
insufficient evidence showing that he acted
with reckless disregard for human life, that
21
contention lacks any arguable merit. Foster
could not have helped but anticipate the
possibility that a human life would be taken
in the course of one or more of his co-
conspirators’ armed robberies. By
transporting a pair of pot-smoking armed
robbers to and from one robbery after another,
Foster clearly displayed the type of “reckless
disregard for human life” the Supreme Court
had in mind when it employed that term in
Tison. Foster knowingly engaged in criminal
activities known to carry a grave risk of
death....
Foster, 2005 U.S. Dist. LEXIS 13862, at *78-79 (emphasis added).
2.
Despite the above-described district-court holding to the
contrary, there was a state-court finding that Foster played a
major role in the criminal activity culminating in Michael LaHood’s
murder. First, it is at least arguable the jury made that finding.
In any event, the Court of Criminal Appeals did. Accordingly, its
ruling was not unreasonable under AEDPA.
a.
As discussed, the jury was allowed to find Foster guilty of
capital murder by finding he anticipated a life would be taken, a
lesser standard than requiring intent to kill. Concomitantly, the
jury could have used the special issues to find Foster ineligible
for the death penalty based on his role in the crime. For example,
the jury found Foster anticipated a life would be taken; but, had
it believed Foster did not play a major role in the activity
leading to Michael LaHood’s murder, it could have found, for
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another of the special issues, that he would not likely be
dangerous in the future and, thus, answered that special issue in
the negative, notwithstanding the evidence presented for Foster’s
criminal conduct on other occasions.
It did not. Instead, it found Foster anticipated a life would
be taken and presented a risk of future dangerousness; therefore,
it recommended he receive the death sentence. As discussed, the
special issues, however, did not require the jury to find Foster
had specific intent to kill; nor did they explicitly require the
jury to consider the Enmund/Tison requirements. Therefore, as
noted above, we consider the Court of Criminal Appeals’ direct-
appeal opinion.
b.
That court denied Foster's claim that the evidence was
insufficient to “support a finding that Foster deliberately engaged
in any culpable conduct that caused death”. Foster v. State, No.
72,853 at 12. It noted the trial evidence demonstrated Foster:
(1) actively participated in the group's robberies; (2) knew
members of the group were using a gun to commit them; (3) shared
the proceeds from them; (4) was the getaway driver; and (5)
expressed no remorse when Michael LaHood was murdered. Id. at 13.
Therefore, the court held a rational jury could have determined
Foster anticipated a life would be taken. Id. In addition, the
court noted: after Brown shot Michael LaHood, Foster “drove him
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away ... , all the while telling Brown to hide the gun”, id. at 10;
further, when police pulled over the vehicle, Foster encouraged
Brown to hide the gun in his underwear, id. at 5.
These rulings demonstrate the Court of Criminal Appeals
determined Foster was, inter alia, a major participant in the
night’s criminal activities, including the robbery and murder of
Michael LaHood. That court, like the jury, rejected Foster’s
claims that he did not participate in the robberies and did not
know Brown was planning to rob Michael LaHood.
A death sentence violates the Eighth Amendment if it is not
proportional to the crime for which the defendant was convicted.
See Tison, 481 U.S. at 148 (noting death sentence for armed robbery
violates the Eighth Amendment because it is excessive).
Furthermore, as the Supreme Court has held, the death penalty
serves two main purposes: deterrence and retribution. Id. at 148-
49. The rationale of retribution is to hold a criminal defendant
liable in direct proportion to his personal culpability. Id. at
149. Enmund held the death penalty excessive, in violation of the
Eighth Amendment, because the defendant’s personal conduct was so
attenuated from the murder it did not warrant that sentence.
Enmund, 458 U.S. at 798. On the other hand, the Court held the
Tison brothers’ substantial role in the activities leading to
murder demonstrated the personal culpability justifying such a
sentence. Tison, 481 U.S. at 158.
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In a number of ways, the Court of Criminal Appeals’ rulings
regarding Foster are similar to those noted by the Supreme Court in
upholding the death sentence for the non–shooters in Tison. There,
the Court discussed the findings by the Arizona Supreme Court,
which had noted: “After the killings [the brothers] did nothing to
disassociate [themselves] from [the shooters], but instead used the
victims’ car to continue on the joint venture, a venture that
lasted several more days”. Tison, 481 U.S. at 145. In addition,
the Supreme Court noted the brothers made “no effort to assist the
victims before, during, or after the shooting”. Id. at 151. Like
the Tison brothers, Foster did nothing to disassociate himself from
Brown after the shooting; instead, as the Court of Criminal Appeals
noted, he waited for Brown to return to the car and drove away,
later telling Brown to hide the murder weapon.
Further, Tison noted both of the death–sentenced non–shooters
assisted, in the prison breakout, a man they “knew had killed a
prison guard in the course of a previous escape attempt”. Id.; see
also id. at 139 (noting previous escape attempt was “a number of
years” before the one in issue). The facts in Tison are analogous
to those here. In denying Foster’s claim that the evidence was
insufficient to support the jury’s affirmative answer to the
future-dangerousness special issue, the Court of Criminal Appeals
noted: a day or two before Michael LaHood was murdered, Foster,
Steen, Dillard, and Brown had participated in another armed
25
robbery, TCCA opn. at 11; and, previously, Foster and a friend shot
at people in a truck while driving alongside them on a highway, id.
at 12. In sum, as stated by the district court, discussed supra,
a rational fact finder could have found: Foster was a major
participant; and he acted with reckless indifference to human life.
That the other robbery did not result in a murder in no way
suggests Foster did not play a major role in either that robbery or
the one leading to Michael LaHood’s murder. This point is further
supported by Foster’s having previously fired a weapon into the
moving vehicle.
As stated above, and pursuant to AEDPA’s deferential standard
of review, because the Court of Criminal Appeals (and arguably the
jury) made the requisite Enmund/Tison findings, that court’s
decision was not unreasonable. Accordingly, the district court
erred in granting Foster habeas relief.
III.
For the foregoing reasons, a COA is DENIED; the conditional
habeas relief is VACATED; and habeas relief is DENIED.
COA DENIED; CONDITIONAL HABEAS GRANT VACATED;
HABEAS RELIEF DENIED
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