Vickers v. Cockrell , 72 F. App'x 40 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 8, 2003
Charles R. Fulbruge III
Clerk
No. 01-41437
BILLY FRANK VICKERS,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
(6:98-CV-643)
--------------------
Before HIGGINBOTHAM, WIENER, AND BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner Billy Frank Vickers, Texas Prisoner #99087, seeks
a Certificate of Appealability (COA) from this court following the
district court’s refusal to grant his application for COA and its
denial of habeas relief pursuant to 28 U.S.C. § 2254. For reasons
we explain below, we deny COA.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
FACTS AND PROCEEDINGS
Vickers was charged by indictment under TEX. PENAL CODE ANN. §
19.03(a)(2), which states that a person commits capital murder if
he commits murder during the commission of another felony – in this
case, the aggravated robbery of Phillip Kinslow. At the
guilt/innocence phase, the jury found Vickers guilty as charged.
At the sentencing phase, the jury answered the two special issues
in the affirmative: There was a probability that Vickers would
constitute a continuing threat to society; and Vickers caused
Kinslow’s death, intended to kill Kinslow, or anticipated the loss
of a human life. As the jury did not find sufficient mitigating
circumstances to warrant a sentence of life imprisonment, the trial
court imposed a sentence of death.
On direct appeal, Vickers raised 56 points of error. The
Texas Court of Criminal Appeals affirmed his conviction and
sentence, and the United States Supreme Court denied certiorari.
Vickers v. Texas, 522 U.S. 913 (1997).
Vickers then filed two state postconviction applications. The
first raised issues not relevant to this federal petition and was
denied without written order. In his second state application,
Vickers asserted, in relevant part, that the evidence was
insufficient to establish that he shot Kinslow, acted with the
intent to cause death, or had sufficient culpability to support the
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aggravating factor at the sentencing phase; and that the trial
court improperly instructed the jury on the law of conspiracy,
thereby allowing the jury to find Vickers guilty of capital murder
without the requisite intent to kill. The Texas Court of Criminal
Appeals dismissed this second application as abuse of the writ,
pursuant to TEX. CRIM. P. CODE ANN. art. 11.071 § 5(a).
Vickers filed his federal habeas petition pursuant to 28
U.S.C. § 2254, asserting that (1) the evidence was insufficient to
establish that he shot Kinslow or that the shooter acted with the
intent to cause death; (2) the lack of evidence of intent rendered
the death sentence unconstitutional; (3) the jury instructions on
conspiracy allowed Vickers to be sentenced to death under a lower
standard than that required by the Supreme Court; (4) the jury
instructions on conspiracy denied Vickers the right to know the
nature of the charge against him; and (5) appellate counsel
rendered ineffective assistance by not raising these issues on
direct appeal. The district court denied habeas relief and granted
the respondent’s motion for summary judgment. The court concluded
that Vickers had procedurally defaulted his challenges to the
sufficiency of the evidence to show his intent to kill or the
“highly culpable mental state” needed to impose the death penalty.
The district court elected to address the merits of Vickers’s
challenge to the sufficiency of the evidence to establish that he
was shooter, because the relevant facts had been raised by Vickers
on direct appeal in conjunction with a sentencing issue. Without
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applying the deferential standards of § 2254(d), the district court
held that the evidence was sufficient to establish that Vickers had
in fact shot Kinslow. The court concluded that Vickers’s challenge
to the jury instructions and to the assistance of appellate counsel
were also procedurally defaulted. Finally, the court held that any
ineffective assistance of appellate counsel did not establish cause
for the procedural default of the other claims.
Vickers filed a timely motion to alter or amend the judgment
pursuant to FED. R. CIV. P. 59(e). Id. at 112-41; FED. R. CIV.
P. 6(a). The district court denied the motion, concluding that the
Texas Court of Criminal Appeals regularly applies the abuse-of-the-
writ doctrine, that Vickers could not establish cause through the
ineffectiveness of appellate counsel, and that he had not shown
that he was “actually innocent” of conduct giving rise to the death
penalty. Vickers filed a timely notice of appeal and a request for
a COA, after which the district court denied COA.
II
ANALYSIS
A. Applicable Law
Vickers’s § 2254 petition was filed in July 1999, and is
therefore subject to the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792
(2001). Under the AEDPA, Vickers must obtain a COA before he can
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appeal the district court’s denial of habeas relief. 28 U.S.C.
§ 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 478 (2000).
To obtain a COA for any of his claims, Vickers must make a
“substantial showing of the denial of a constitutional right.”
§ 2253©(2); Slack, 529 U.S. at 483. When a district court has
rejected a constitutional claim on the merits, a COA will be
granted only if the petitioner “demonstrate[s] that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484;
see also Miller-el v. Cockrell, 123 S. Ct. 1029, 1039-40 (2003).
If the denial of relief is based on procedural grounds, the
applicant must show that (1) “jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a constitutional right” and (2) “jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484. Each prong of the test is part
of a threshold inquiry, and a court may dispose of the application
by resolving the issue with the answer that is more apparent from
the record and arguments. Id. at 485.
B. Sufficiency of the Evidence – Vickers as Shooter
Vickers contends that the evidence was insufficient to support
a finding that he shot Kinslow. The standard for testing the
sufficiency of the evidence in federal habeas review of a state
court conviction “is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
5
could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979)(emphasis in original). This “standard must be applied with
explicit reference to the substantive elements of the criminal
offense as defined by state law.” See id. at 324 n.16. Under
Texas law, an individual commits murder if he “intentionally or
knowingly causes the death of an individual.” TEX. PENAL CODE ANN.
§ 19.02(b)(1). The individual commits capital murder if he commits
murder as defined under § 19.02(b)(1) and another aggravating
factor is present, such as the defendant’s intentional commission
of the murder during the course of another felony. § 19.03(a)(2).1
At Vickers’s trial, Jason Martin testified that he, Vickers,
and Tommy Perkins planned to rob the Arthur City Superette, which
was run by Kinslow. On the day of the murder, the three men met at
Vickers’s home. Perkins had a .38 caliber handgun and Vickers had
a .22 caliber handgun. The threesome spent the day drinking,
“casing” Kinslow’s home and the Superette, and following Kinslow
about his daily activities. Perkins and Vickers decided that if
Kinslow left his vehicle to open or close one of the gates around
his home, they would rush him, bind him with duct tape, take his
money, and steal his pickup. The three men left Vickers’s home in
possession of duct tape, a police scanner, and ski masks.
1
The State asserts that, contrary to the district court’s
findings, this issue was procedurally defaulted. We will not
address this assertion, as Vickers’s argument fails on the merits.
See Slack, 529 U.S. at 485.
6
On the way to the Kinslow residence, Vickers put the .22
caliber handgun on the dashboard of the truck. Martin let Perkins
and Vickers out of the truck; Vickers was carrying the duct tape
and the .22 caliber handgun. Martin, the getaway driver, was aware
that if Kinslow resisted, he would suffer physical force or injury.
Martin drove around for a short while, then went to the agreed
meeting point. After Martin turned off the engine of his truck, he
heard a gunshot and Vickers yelling. Martin then the scene,
learning later that Kinslow had been shot and killed. Martin then
went home and passed out.
The next morning, Perkins came to Martin’s residence where he
told Martin that Vickers had been shot in the knee. Perkins
related that he and Vickers had waited by the gate and that, as
Kinslow got out of his truck, Perkins saw that Kinslow had a gun.
Vickers rushed Kinslow, a struggle ensued, and gunshots were fired.
After the shooting, Kinslow got back in his truck and drove down
the driveway.
A medical examiner had previously testified that Kinslow had
a gunshot wound in his chest and that the bullet had gone through
his right lung and into his spinal column, causing death. The
bullet recovered from Kinslow’s spinal column was a .22 caliber.
Latricia Dangerfield testified that she was Perkins’s
girlfriend. She recounted that, in the early morning after the
murder, Perkins told her that “Sonny [Vickers] had got hurt, and
they went out to rob this guy and it didn’t go the way it was
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supposed to.” Dangerfield admitted that Perkins had told her that
he had seen that the victim had a gun when he went to open the
gate. Perkins also told Dangerfield that Vickers asked Kinslow if
he wanted to die and Kinslow asked Vickers the same question,
whereupon both started shooting; that Kinslow jumped in his truck
and drove away; and that Vickers and Perkins ran away from the
scene. Dangerfield was also told by Perkins that he had been asked
by Vickers why he (Perkins) had not shot his gun, stating that he
(Vickers) had not heard any shots from Perkins. Finally, Perkins
told Dangerfield that he had not shot Kinslow.
Vickers acknowledges that both Martin and Dangerfield
testified that Perkins told them that it was Vickers, not Perkins,
who had fired the shots that struck Kinslow. Vickers maintains,
however that this “circumstantial” evidence is countered by other
circumstantial evidence showing that he was not in fact the
shooter. He contends that because the evidence gives equal or
nearly equal circumstantial support to a theory of guilt and a
theory of innocence of the crime charged, a reasonable jury must
necessarily entertain a reasonable doubt. Clark v. Procunier, 755
F.2d 394, 396 (5th Cir. 1985).
This contention is without merit. Both Martin and Dangerfield
testified as to what they were told by an eyewitness to the
2
shooting; such testimony is direct evidence of Vickers’s guilt.
2
A painstaking review of the record, both pre-trial and
trial, reveals no motions in limine, contemporaneous objections, or
8
Even if the testimony were circumstantial, however, Vickers still
is not entitled to relief. When Martin’s and Dangerfield’s
testimony is viewed in the light most favorable to the prosecution,
it unequivocally establishes that Vickers did the shooting.
Furthermore, the evidence established that the fatal bullet was a
.22 caliber, copper-coated, hollow-point long rifle like those
found at Vicker’s home, and that the bullet had been fired from a
.22 caliber handgun, the kind of gun that was in Vickers’s
possession at the time he left Martin’s truck. A reasonable juror
could also infer that Kinslow shot at Vickers to defend himself
because Vickers was shooting at him.
Vickers also asserts that the only testimony establishing that
he was the shooter is that of his accomplice, Perkins, and that
under state law, accomplice testimony must be corroborated. There
is, however, no constitutional requirement that the testimony of an
accomplice-witness be corroborated. See Brown v. Collins, 937 F.2d
175, 182 n.12 (5th Cir. 1991). As Vickers is challenging the
sufficiency of the evidence on a matter of Texas law, his claim is
not cognizable in a federal habeas proceeding. See Smith v.
Phillips, 455 U.S. 209, 221 (1982).
Vickers has not established that “reasonable jurists would
find the district court’s assessment of the [sufficiency claim]
other opposition by Vickers to the admission of this testimony,
whether as hearsay or otherwise.
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debatable or wrong.” Slack, 529 U.S. at 484. He is not entitled
to a COA on this claim.
C. Ineffective Assistance of Appellate Counsel
Vickers contends that the district court erred in not
reviewing the merits of his ineffective-assistance claim. The
district court concluded that this claim was procedurally defaulted
because Vickers had never presented it to the state courts. Under
the procedural-default doctrine, when the last state court that
rendered a reasoned judgment in a case explicitly rejected a claim
based on an independent and adequate state-law procedural ground,
federal courts are ordinarily precluded from granting habeas relief
grounded on that claim. See Hughes v. Johnson, 191 F.3d 607, 614
(5th Cir. 1999). If the petitioner failed to exhaust state
remedies and the court to which he would be required to present his
claims to meet the exhaustion requirement would find the claims
procedurally barred, then there is a procedural default for the
purpose of federal habeas consideration. See Emery v. Johnson, 139
F.3d 191, 195 (5th Cir. 1997). If the claims are found to be
procedurally defaulted, the petitioner must establish both cause
and prejudice for the procedural default or show that the failure
to hear the claim would result in a complete miscarriage of
justice. Wainwright v. Sykes, 433 U.S. 72, 87, 91 (1977).
Vickers does not dispute that he failed to present his claim
in the state courts. Instead he states that such a claim would
have been futile; that if he had raised the claim in his second
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state postconviction application, it would have been dismissed for
abuse of the writ. Neither does Vickers attempt to show cause and
prejudice for his failure to raise the issue properly in the state
court; rather, he insists that the sufficiency and jury-instruction
issues, which appellate counsel failed to raise, were meritorious
and could have resulted in an acquittal. Vickers reasons that by
showing that he might have been acquitted, he has established a
fundamental miscarriage of justice, thereby excusing his failure to
raise the ineffective-assistance claim in the state courts.
Vickers’s contention on this point is without merit as well.
To establish a miscarriage of justice, Vickers must show that he is
actually, rather than legally, innocent of the charges brought
against him. See Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992).
As we have already explained, the evidence was sufficient for the
jury to find that Vickers personally shot and killed Kinslow in the
course of an armed robbery. This prevents Vickers from
establishing that he was actually innocent of the capital murder.
He has not shown that reasonable jurists would find it debatable
that the district court erred in refusing to consider the merits of
this procedurally defaulted claim.
D. Jury Instruction; Sufficiency and Procedural Default
Vickers also insists that because the indictment did not
allege that he had participated in a conspiracy, the trial court
erred when it charged the jury with the law on a “party
conspirator.” He maintains that as a result, the jury was allowed
11
to sentence him to death merely for his participation in a felony
and his “anticipation” of a murder, rather than based on his own
intent to kill. He also contends that he was denied notice of the
charges against him as is required by the Sixth Amendment.3
Vickers also advances that the evidence was insufficient to
establish his intent to kill. He grounds this contention in the
claim that the only evidence of intent came through the hearsay
testimony of Martin and Dangerfield regarding what Perkins, an
accomplice, had told them and that this evidence was not
corroborated.
Vickers concedes that he raised these claims for the first
time in his second state application. He contends, however, that
the district court improperly refused to consider the merits of his
claims under the procedural default doctrine, arguing that
appellate counsel’s ineffectiveness establishes cause for his
failure to raise the claims in a timely manner. He also argues
that, because he could have been acquitted on these grounds, he has
established a fundamental miscarriage of justice.
The state court dismissed Vicker’s second state application,
which included these claims, for abuse of the writ. To qualify as
adequate, a procedural rule must be applied strictly or regularly
3
The State asserts that Vickers’s challenge to the jury
charge was also procedurally defaulted under the contemporaneous
objection rule and that his assertions that failure to consider the
procedurally defaulted claims would constitute a miscarriage of
justice were untimely in the district court. As these claims of
Vickers are wholly unavailing, we shall not address them.
12
to the vast majority of similar claims. See Emery, 139 F.3d at
195. The law is well-settled that a dismissal of a state
application pursuant to art. 11.071 § 5(a) is an independent and
adequate ground regularly invoked by Texas courts. See Emery, 139
F.3d at 195-96.
Vickers contends that he has established “cause” for his
procedural default in appellate counsel’s failure to raise the
issues on direct appeal. Although ineffective assistance may
constitute “cause” for a procedural default, Murray v. Carrier, 477
U.S. 478, 488 (1986), such an ineffective-assistance claim
generally must “be presented to the state courts as an independent
claim before it may be used to establish cause for a procedural
default.” Id. at 489. As Vickers concedes that he did not present
his ineffective-assistance claim to the state courts, he cannot
establish that the procedural default should be excused through
cause and prejudice.
Neither can Vickers’s miscarriage-of-justice assertion excuse
the procedural default. This exception requires a showing of
actual innocence. Sawyer, 505 U.S. at 339. The evidence here was
sufficient to show that Vickers was the shooter and that the
elements of capital murder were met. Again, he cannot prove actual
innocence.
As for the contested jury instruction, the district court did
acknowledge that it could conceive of situations in which a death
sentence imposed pursuant to the conspiracy jury instruction could
13
be constitutionally infirm, but concluded that here “the actual
instructions submitted in the case” were appropriate. The court’s
statement in the abstract about cases dealing with the relevant
jury instructions does not establish that Vickers himself could
succeed under actual innocence. Vickers has not established that
“jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at
484.
III
CONCLUSION
For the reasons set forth above, we conclude that Vickers has
failed to demonstrate any basis for entitlement to a COA.
Consequently, his application must be rejected.
COA DENIED.
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