Melendez v. Dretke ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 29, 2003
_____________________ Charles R. Fulbruge III
Clerk
No. 03-10352
_____________________
PABLO MELENDEZ, JR.,
Petitioner - Appellant,
versus
DOUG DRETKE, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
District Cause No. 00-CV-190
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
Pablo Melendez, Jr., was convicted of capital murder and
sentenced to death. Melendez seeks a Certificate of
Appealability (COA) to appeal the district court’s denial of
federal habeas relief based on one claim. After considering that
request, this Court denies a COA.
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
1
Background of the Request for COA
A Texas jury convicted Melendez of capital murder and
assessed a death sentence. The Texas Court of Criminal Appeals
affirmed the conviction and sentence, and the United States
Supreme Court denied Melendez’s petition for writ of certiorari.
Subsequently, the Court of Criminal Appeals denied Melendez’s
state habeas corpus petition.
Melendez applied for federal habeas relief on November 9,
2000, and amended his petition on December 22, 2000. The
district court entered a final judgment denying relief on March
14, 2003, and later denied Melendez’s request for a COA.
Melendez then filed a notice of appeal and asked this Court for a
COA.
Background of Melendez’s Offense
The Court of Criminal Appeals summarized the relevant facts
of the underlying crime in its opinion on direct appeal:
At the guilt/innocence stage of trial, the State
presented fifteen witnesses, including testimony from
the surviving victim, to establish the circumstances
surrounding the robbery/murder of which [Melendez] was
convicted. Their testimony, if believed, established
the following. On the evening of September 1, 1994,
[Melendez], who was eighteen years old, visited and
drank beer with a group of friends in the driveway of a
Fort Worth residence. At approximately 11:30 p.m.,
[Melendez] stated, in a voice loud enough for most to
hear, his intention to rob “some mother fucker,” and he
walked away alone.
At that same time, in the nearby parking lot of a
self-service car wash, the two victims in this case had
parked their pick-up truck parallel to a walk-up pay
phone. They had been there a number of minutes when
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one of them, Tommie Joe Seagraves, noticed [Melendez]
walking up behind the truck. As Seagraves looked on,
he warned the truck’s driver, Michael Sanders, of
[Melendez’s] approach. [Melendez] positioned himself
about fifteen feet from the driver’s side door.
Without any warning or even a word being spoken,
[Melendez] turned and fired one shot into the cab of
the vehicle, and it struck Seagraves in the neck.
[Melendez] then announced his first demand that Sanders
hand over all the money in the truck. As Sanders
pleaded with [Melendez] not to shoot him, he was
ordered from the vehicle, and then forced to walk
toward [Melendez] and hand over the money. Relieved of
his money, Sanders turned and started back toward the
truck where Seagraves still sat wounded and unable to
move. Before he reached the vehicle, [Melendez] fired
again and struck Sanders in the back. In rapid
succession, [Melendez] fired three more shots and all
struck Sanders in either the back or the arm. Sanders
finally toppled forward through the open driver’s side
door and came to rest in the floorboard of the truck
with his head resting against Seagraves’ leg. As
Sanders lay dying, [Melendez] approached, reached
through the cab with the gun in his hand, placed the
muzzle next to Seagraves’ forehead, and pulled the
trigger. Nothing happened. The gun was empty, so
[Melendez] simply turned and walked back in the
direction he had come. In the end, Seagraves received
two bullet wounds; the initial wound when [Melendez]
first approached and a second wound received from a
bullet that had passed through the decedent and struck
Seagraves’ arm. Sanders was shot four times and died
within minutes.
Melendez v. Tex., No. 72,420 slip opinion at 2-3 (Tex. Crim. App.
Oct. 7, 1998) (not designated for publication).
Shortly after Melendez’s trial, Sanders’s mother, Gracie
Jett, provided Melendez’s attorneys with information that a man
named Jeffrey Jackson had come upon the murder scene, saw a truck
with a woman passenger parked nearby, and saw two Hispanic males
going through the pockets of one of the victims. According to
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Melendez, Jett relayed this information to Diane Tefft, the Fort
Worth police detective that was handling the case. Tefft
purportedly told Jett not to get involved in the investigation
and Tefft failed to follow up on the information Jett provided.
Upon learning of this information, Melendez’s attorneys
interviewed Jackson. Jackson confirmed Jett’s rendition,
although Jackson’s version of the events changed somewhat with
subsequent interviews. Jackson apparently expressed his
willingness to appear in court and testify about what he
witnessed, but failed to appear when served with a subpoena for
Melendez’s motion for new trial. This purported new evidence
serves as the basis for Melendez’s request for a COA.
Standard of Review
To obtain a COA, Melendez must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); Miller-El, 123 S. Ct. at 1039; Slack v. McDaniel, 529
U.S. 473, 483 (2000). To make this showing, Melendez must
demonstrate that “reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-
El, 123 S. Ct. at 1039 (quoting Slack, 529 U.S. at 484). Because
the district court denied relief on the merits, rather than on
procedural grounds, Melendez “must demonstrate that reasonable
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jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at
484.
In determining whether to grant a COA, this Court’s
examination is limited “to a threshold inquiry into the
underlying merit of [Melendez’s] claim[].” Miller-El, 123 S. Ct.
at 1034. “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of
the claims.” Id. at 1039. Instead, this Court’s determination
is based on “an overview of the claims in the habeas petition and
a general assessment of their merits.” Id. “Any doubt regarding
whether to grant a COA is resolved in favor of the petitioner,
and the severity of the penalty may be considered in making this
determination.” Tennard v. Cockrell, 284 F.3d 591, 594 (5th Cir.
2002).
Melendez’s Brady Claim
Melendez’s claim in support of his request for a COA is a
purported Brady violation. Melendez claims his due process
rights were violated because the State of Texas (the State)
failed to disclose material exculpatory evidence; specifically,
that the State failed to tell him that Jackson came upon the
crime scene and observed someone going through the pockets of one
the victims. Although Melendez does not argue that the
particular evidence would have made a difference in his case, he
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maintains the evidence is material and admissible. Melendez
complains that by failing to conduct an evidentiary hearing, the
state courts denied him the opportunity to develop his Brady
claim and foreclosed his ability to show he is entitled to habeas
relief.
In Brady v. Maryland, the United States Supreme Court
explained that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
Brady v. Md., 373 U.S. 83, 87 (1963). To establish a Brady
violation, a petitioner must demonstrate that (1) the prosecution
suppressed evidence, (2) the evidence was favorable to the
petitioner, (3) the evidence was material either to guilt or
punishment, and (4) nondiscovery of the allegedly favorable
evidence was not the result of a lack of due diligence.
See Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997).
In assessing the materiality of undisclosed evidence, the
"evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different." U.S. v. Bagley,
473 U.S. 667, 682 (1985). "A 'reasonable probability' is a
probability sufficient to undermine confidence in the outcome."
Id. at 682. A "reasonable probability" of a different result is
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shown when the non-disclosure "could reasonably be taken to put
the whole case in such a different light as to undermine
confidence in the jury verdict." Kyles v. Whitley, 514 U.S. 419,
434 (1995).
In the instant case, the state habeas court2 first concluded
that Melendez failed to establish that the purported Brady
evidence was withheld. Although Jett testified during the
hearing on Melendez’s motion for new trial that she told Tefft
about Jackson’s observation, the trial judge determined that Jett
was not a credible witness. The district court correctly
deferred to that finding. See 28 U.S.C. § 2254(e)(1)
(determination of state court’s factual finding is presumed
correct unless applicant rebuts finding with clear and convincing
evidence). Because Melendez did not rebut the state court’s
finding with evidence to the contrary, the district court
correctly determined that adequate factual support exists to
support the state judge’s conclusion that Melendez did not prove
the State withheld the disputed evidence.
The state court also determined that the evidence was not
material. The district agreed and determined that even if the
state trial judge were wrong about whether the State withheld
evidence, the evidence is not material. The record supports that
conclusion.
2
Notably, the state habeas judge was also the trial judge.
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Jett testified to the most favorable version of the disputed
evidence. During the hearing on Melendez’s motion for new trial,
Jett explained that she spoke with several people who were
located near the scene of her son’s death in an effort to solve
her son’s murder. Jett stated Jackson owned a barbeque
restaurant a block from the car wash where her son was killed and
that she spoke with Jackson over the telephone after her son’s
death. Jett explained that Jackson told her that he had heard
several gunshots around 11:30 on the evening of her son’s death
and heard someone scream, “the MFs are shooting at me.”
According to Jett, Jackson and his girlfriend then drove to the
carwash, saw a white truck parked by the telephone, saw a black
truck park along the street with a woman inside the truck, and
observed two Hispanic males in the parking lot going through the
pockets of a man in the white truck. Jett further testified that
Jackson stated that he asked the men if they needed any help and
that the men told him everything was under control. Jett
explained that Jackson then left the scene and agreed to relay
his observations to the police.
Jett also testified that she advised Tefft about what
Jackson had observed and that Tefft told her not to get involved
in the investigation. Jett also stated that she gave the
information to the lead prosecutor in the case and that the
prosecutor had told her that Melendez had not killed her son.
Jett explained that she did not tell Melendez’s attorney about
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this information because she did not become convinced that
Melendez was not the killer until after the trial. Notably, this
information, if true, is consistent with the evidence presented
during trial and during the hearing on the motion for new trial.
Both of the prosecutors for Melendez’s trial stated in
affidavits that there was evidence of another truck at the scene
of the murder shortly after the shooting and that the defense was
aware of that information. To support these assertions, the
State submitted Seagraves’s written statement in which Seagraves
states that a Mexican man and a younger boy stopped behind the
truck after the shooting and asked him what was wrong. This
statement was admitted at trial. The State also submitted a
written statement by Susie Carillo who stated that after hearing
shots, she saw a man run up the street. Carillo explained that
she went outside and heard a man crying “please help me.”
According to Carillo, she called 911, walked down to the car
wash, observed a group of men in a pickup truck stopped at the
scene, and saw one of the men trying to help the men in the
truck. Although her trial testimony was somewhat disorganized,
the written statement summarizes Carillo’s trial testimony.
Thus, Jett’s version of what Jackson observed is consistent with
Seagraves’s statement about what happened after the shooting and
Carillo’s version of the events. Moreover, substantially the
same information was presented to the jury.
During trial, a paramedic and a police officer who responded
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to the car wash testified that Sanders’s pockets were turned
inside out. The paramedic also testified that several people at
the car wash waved the ambulance down as it arrived. In
addition, a police detective who responded to the murder scene
testified he spoke to a Hispanic male at the scene of the murder.
Additionally, a photo exhibit reflected that Sanders’s pants
pockets were pulled out. Thus, the jury knew that someone
arrived at the car wash after the shooting and that Sanders’s
pockets were altered. Even with this information, the jury found
Melendez guilty.
The district court accurately assessed the implications of
the information Jackson may have provided:
The information Jackson provided may have helped to
explain why the pockets were turned out, but it would
not have cast doubt on Melendez’s guilt. . . . [A]s the
record makes clear, Jackson’s hearing gunshots and
someone yelling and then witnessing a dark pickup truck
and two Hispanic men at the scene, one looking through
the pockets of the murder victim, is not contrary to
Melendez’s conviction. Instead, since everything
Jackson witnessed at the scene was after the shooting,
it is consistent with testimony given by other
witnesses at trial and statements made by other persons
at the scene.
The district court correctly concluded that Melendez’s Brady
claim lacked merit because the events Melendez contends Jackson
observed occurred after the shooting. Even if Jackson’s
observations were disclosed to the defense, there is no
reasonable probability the result of the proceeding would have
been different. Melendez’s Brady issue deserves no encouragement
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such that a hearing is required. Reasonable jurists could not
conclude that Melendez’s purported Brady evidence placed the case
in such a different light as to undermine confidence in the
jury’s verdict. As a result, Melendez is not entitled to a COA.
Accordingly, this Court DENIES Melendez’s application for a COA.
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