Clinton Young v. William Stephens, Director

Case: 14-70011 Document: 00513134902 Page: 1 Date Filed: 07/29/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-70011
United States Court of Appeals
Fifth Circuit
FILED
CLINTON LEE YOUNG, July 29, 2015
Lyle W. Cayce
Petitioner - Appellant Clerk
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent – Appellee
Appeals from the United States District Court
for the Western District of Texas
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge.
Petitioner-Appellant Clinton Lee Young (“Young”) was convicted of two
murders and sentenced to death. Young’s death sentence became final on April
3, 2006, when the Supreme Court denied his petition for a writ of certiorari.
Young’s habeas petitions, however, continue to be litigated. Now before this
court are Young’s requests for certificates of appealability (“COAs”) on his
“Brady/Napue,” ineffective assistance of counsel (“IAC”), and cumulative error
claims, as well as his appeal of the district court’s denial of his motion to stay
and to supplement the record. For the reasons that follow, Young’s motion for
COAs is DENIED. The district court’s ruling on his stay and motion to
supplement is AFFIRMED.
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I.
Young was convicted of capital murder on March 26, 2003, for killing
Samuel Petrey and Doyle Douglas in November 2001. He was sentenced to
death on April 14, 2003. A brief summary of his crimes follows. On the day of
Douglas’s murder, Young was with Mark Ray, David Page, Darnell McCoy, and
Doyle Douglas. The five men drove in Douglas’s car to buy marijuana at a
residence in Longview, Texas. When Douglas returned to his car, having failed
to get any marijuana, Young shot Douglas twice in the head at close range with
a .22 caliber pistol. Young, Ray, Page, and McCoy—allegedly under threat
from Young—then disposed of Douglas’s body in a creek, where Ray apparently
shot Douglas’s dead body in the head.
After the murder Young became concerned that someone might
recognize Douglas’s car, which Young was driving. To obtain a new vehicle,
Young and Page kidnapped Samuel Petrey in a grocery store parking lot and
took his truck. A day later, concerned that Petrey could identify them, Young
and Page drove Petrey to an isolated pumping station where Young shot and
killed him. Young and Page then parted ways and Page reported the crimes
to the police. Young was apprehended while driving Petrey’s truck. At the
time he was arrested he had a .22-caliber pistol in his possession which was
later connected to the shell casings found at both murder sites. See Young v.
State, No. AP-74643, 2005 WL 2374669, at *1–3 (Tex. Crim. App. Sep. 28, 2005)
(detailing the murders).
At trial Ray, McCoy, and Page testified against Young. The prosecution
stated that Ray and Page had not been offered any consideration for their
testimony, except that Ray received testimonial immunity. After trial, Ray
pleaded guilty to kidnapping, and received a fifteen-year sentence. Page
pleaded guilty to aggravated kidnapping and received a thirty-year sentence.
McCoy was not charged for any crimes related to Douglas’s murder.
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The Texas Court of Criminal Appeals (“TCCA”) affirmed Young’s
conviction on direct appeal. On April 22, 2005, Young filed his first state
habeas claim while his direct appeal was pending, alleging fourteen errors.
The state court held four days of hearings and thereafter recommended
denying relief. A few months later Young moved to add eight new claims to
his request for relief. The TCCA reviewed the record and concurred with the
trial court’s recommendation to deny relief; it also dismissed Young’s new
claims as a subsequent writ application and thus an abuse of the writ under
Texas law. Ex Parte Young, No. WR-65137-01, 2006 WL 3735395, at *1 (Tex.
Crim. App. Dec. 20, 2006). Young filed a petition for a writ of habeas corpus in
the District Court for the Western District of Texas on December 20, 2007. On
October 20, 2008, Young filed a motion to stay his federal case in order to
return to state court and advance new prosecutorial misconduct claims. Young
v. Stephens, No. CIV. MO-07-CA-002, 2014 WL 509376, at *1 (W.D. Tex. Feb.
10, 2014) vacated in part, 2014 WL 2628941 (W.D. Tex. June 13, 2014). The
motion to stay was granted on February 25, 2009. Id. at *16. Young then filed
his second subsequent petition for writ of habeas corpus with the state court.
Young asserted a variety of claims, including that the government
withheld information about Ray and Page’s plea agreements (which Young
allegedly discovered in 2008) and that his trial counsel was ineffective for
failing to prove that Ray and Page shot Douglas. The TCCA certified two
issues and remanded the case to the trial court for consideration. Ex Parte
Young, WR-65137-03, 2009 WL 1546625 (Tex. Crim. App. June 3, 2009). The
state trial court held five days of evidentiary hearings to consider whether the
prosecution withheld evidence related to plea negotiations with Ray and Page,
as well as whether the prosecution withheld impeachment evidence that could
have been used in cross-examination of A.P. Merillat. Ex Parte Young, No.
CR27181-C (385th Judicial Dist., Midland County, Texas, May 18, 2011). The
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state court denied Young’s petition for a writ on May 18, 2011, in a thorough
149-page opinion, holding “as a matter of fact that there was no express or
implied plea agreement between Mark Ray and the State” or “David Page and
the State.” Ex Parte Young, No. CR27181-C at *63–99, 123–140; Young, 2014
WL 509376, at *22. The TCCA affirmed. Ex parte Young, WR–65137–03 (Tex.
Crim. App. June 20, 2012).
On October 18, 2012, Young filed his second amended federal habeas
petition, which exceeded four-hundred pages. The district court denied this
petition on February 10, 2014, issuing a comprehensive two-hundred page
opinion. Young, 2014 WL 509376, at *199. The district court considered
Young’s Brady claim that “the prosecution failed to disclose to petitioner’s trial
counsel that it had offered prosecution witnesses Page and Ray ‘informal
promises of leniency and of favorable plea agreements’” and that “the
prosecution knowingly elicited false testimony from both Page and Ray
denying the existence of any promises or deals.” Id. at *26.
First, the district court noted that the state court had already heard
“extensive live testimony” and found that there “were no plea agreements or
promises of leniency made to either Page or Ray” and that “neither Page nor
Ray testified falsely during petitioner’s trial.” Id. The court considered the
testimony from Young’s third state habeas proceeding, where both Ray and his
mother testified that Ray was offered a five-year sentence by a Sheriff’s Deputy
but not a prosecutor, in exchange for testifying against Young. Id. at *17, 28.
The district court, however, did not find this testimony credible. The court
explained that the relevant prosecutors and investigators denied making any
plea offer. Id. More importantly, Ray’s trial counsel testified that, though
there were some preliminary discussions about a plea agreement, those
conversations did not result in an actual plea offer. Id.
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The district court also examined Page’s testimony at the third state
habeas proceeding. Page discussed a possible thirty-year plea deal with the
prosecution. Id. at *29. This deal was conditioned on passing a polygraph test,
which Page failed. Id. Consequently, Page’s trial attorney did not believe that
there was any plea agreement for Page. Id. Page’s trial counsel testified that
though Page hoped he would receive leniency for cooperating, he understood
that there was not an enforceable agreement. Id. Further, the prosecution
denied making any plea offers to Page. Id.
Based on the foregoing, the district court found that “the state habeas
court reasonably rejected as factually flawed petitioner’s contentions that
either Page or Ray had been offered a plea agreement or that promises of
leniency had been made to Ray or Page to induce their trial testimony against
petitioner.” Id. at *30. Hence,
petitioner failed to show the existence of any evidence at the time
of petitioner’s trial concerning secret plea agreements or promises
of leniency that could have been used to impeach Ray’s or Page’s
trial testimony. Petitioner’s first claim does not satisfy the first or
second prongs of Brady analysis, i.e., petitioner has failed to
establish that any potentially beneficial information regarding
undisclosed plea agreements or promises of leniency made to Ray
or Page actually existed at the time of petitioner’s trial. In
addition, because petitioner failed to establish that Ray or Page
furnished any factually inaccurate testimony at petitioner’s trial,
petitioner’s first claim also fails to satisfy the first and third prongs
of Giglio/Napue analysis, i.e., petitioner failed to show Ray or
Page gave any false testimony or that prosecutors knew Ray or
Page testified falsely.
Id.
On June 3, 2014, four months after the district court’s denial, Young filed
a motion to supplement the district court record with recently obtained
statements from James Kemp, Russell Stuteville, Amanda Williams, Pat
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Brook, and Page. 1 Young also filed motions to alter the judgment, for a COA,
and for a stay to return to state court. The district court denied these motions,
noting that “[o]ne of the recurrent problems in this cause has been petitioner’s
refusal to acknowledge the limited scope of this Court’s authority in this
federal habeas corpus proceeding.” Young, 2014 WL 2628941, at *3. As to
Brady, the court found that Young appeared to be attempting to relitigate the
district court’s ruling. Id. at *18. But, if the claim was actually supported by
new evidence, then the remedy was to “obtain permission for the filing of a
successive federal habeas corpus petition from the Fifth Circuit before
requesting a stay from this court.” Id. The district court denied the motion to
supplement on the grounds that defense counsel’s hearsay declarations had
“no evidentiary value.” Id. at *19.
II.
Young must obtain a COA before appealing the district court’s denial of
habeas relief. 28 U.S.C. § 2253(c). “Unless a circuit justice or judge issues a
[COA], an appeal may not be taken to the court of appeals . . . ” 28 U.S.C. §
2253(c)(1). The issuance of a COA requires a petitioner to make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003). This requires a petitioner to “show
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, 537 U.S. at 336 (internal quotation marks and alteration omitted).
In making this determination, we examine the district court’s
application of the Antiterrorism and Effective Death Penalty Act of 1996
1 A description of the content of these statements can be found in this court’s denial of
Young’s motion to file a successive petition. In re Young, No. 14-51288, 2015 WL 3649765,
at *4–6 (5th Cir. June 8, 2015).
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(“AEDPA”) to the petitioner’s claims and “ask whether that resolution was
debatable amongst jurists of reason.” Id. This does not require a showing that
the appeal will succeed or a “full consideration of the factual or legal bases
adduced in support of the claims.” Id. at 336–37. Instead, the debatability of
AEDPA’s application to the underlying constitutional claims is a threshold
analysis, determined by “an overview of the claims in the habeas petition and
a general assessment of their merits.” Id. at 336.
Under AEDPA, a federal court may not issue a writ of habeas corpus for
a state conviction unless the adjudication of the claim:
(1) resulted in 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; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceedings.
28 U.S.C. § 2254(d). Analyzing § (d)(1), a state court’s decision is contrary to
clearly established federal law if: “(1) the state court ‘applies a rule that
contradicts the governing law’ announced in Supreme Court cases, or (2) the
state court decides a case differently than the Supreme Court did on a set of
materially indistinguishable facts.” Nelson v. Quarterman, 472 F.3d 287, 292
(5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540 U.S. 12, 15–16
(2003)). Similarly, § (d)(2) “requires that we accord the state trial court
substantial deference.” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). If
“‘[r]easonable minds reviewing the record might disagree’ about the finding in
question, ‘on habeas review that does not suffice to supersede the trial court’s
. . . determination.’” Id. (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
We review the district court’s conclusions of law de novo and findings of fact
for clear error. Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). AEDPA
specifically provides that the “determination of a factual issue made by a State court
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shall be presumed to be correct” unless the petitioner satisfies “the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
Lastly, we reiterate that “a COA determination is a ‘threshold inquiry’
that ‘does not require full consideration of the factual or legal bases adduced
in support of the claims.’” Jordan v. Fisher, 135 S. Ct. 2647, 2651 (2015)
(Sotomayor, J., dissenting from denial of certiorari) (quoting Miller-El, 537
U.S. at 337). ‘“[A] COA ruling is not the occasion for a ruling on the merit of
[a] petitioner’s claim.”’ Id. at 2652 (quoting Miller-El, 537 U.S. at 331). “It
requires only ‘an overview of the claims in the habeas petition and a general
assessment of their merits.”’ Id. (quoting Miller-El, 537 U.S. at 336).
III.
Young requests a COA for seven issues, which fall into three categories:
1) the prosecution’s alleged violation of Brady/Napue; 2) five instances of IAC;
and 3) cumulative error. All of these claims were considered by the district
court, which denied Young’s motions for COAs. We decline to grant Young a
COA on any of these issues because they are either procedurally barred,
meritless, or both.
I. Napue /Brady
Young’s brief contains a de novo reweighing of his Brady evidence. But
such a de novo review is not our role. Instead AEDPA requires us to consider
whether it is debatable that the state court decision was based on an
unreasonable determination of the facts or an unreasonable application of
clearly established federal law. Young’s challenge falls well short of the
threshold that would merit a COA.
The district court carefully considered the evidence presented in the
second successive state habeas proceeding, which involved five days of
testimony regarding Young’s Brady claims. Young, 2014 WL 509376, at *28–
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30. During this proceeding the two district attorneys, Rick Berry (Harrison
County DA) and Al Schorre (Midland County DA), as well as Young’s defense
counsel, Richard Hurlburt, testified that there were no plea agreements. Ray
and Page also testified that there were no pre-trial plea agreements with the
prosecutors. Ray’s wife testified too that there was no deal with the
prosecutors. Former sheriffs and investigators who took part in the case or
were around Ray testified that they never overheard discussions of a plea
agreement. The state court also noted that Ray was given immunity for his
testimony at trial and that this immunity was disclosed to Young’s defense
counsel and explained to the jury. The state court analyzed all of this
testimony and concluded that there was not a Brady violation because there
were no plea agreements with Page or Ray. The district court, after conducting
its own analysis of the evidence, agreed. We see nothing in Young’s petition
that calls this determination into question.
Young’s argument before this court is that Ray was, in fact, offered an
undisclosed plea deal. 2 He argues that the state court erred in not giving more
weight to Ray’s testimony regarding offered plea deals and that “Young has at
least debatably shown Ray received inducements.” But he ignores that the
state court expressly discounted Ray’s testimony in the second successive state
habeas proceeding as unbelievable in light of the contradictory evidence
presented by the government. Nothing in the record suggests that the state
court gave unreasonable weight to the evidence that contradicted Ray. 3 As a
2 Young claims that “[t]he Director does not dispute the suppression element.” But,
of course, the Director does because the Director contends that the state habeas court
correctly determined that there was never a bargain and thus, by extension, no suppression.
3 In fact, the record offers ample evidence to show that Ray was duplicitous when
testifying. Young, 2014 WL 509376, at *28 (stating that Ray’s testimony was directly
contradicted by prosecutors, investigators, and his own trial counsel and that Ray’s testimony
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result, it is undebatable that the state court’s factual determination that Ray
was not offered a plea agreement was not an unreasonable determination, so
the COA is denied.
Young’s request for a COA regarding plea deals allegedly offered to Page
suffers the same defect as his request for a COA regarding Ray. Both Page’s
attorney and the district attorneys have said consistently throughout these
proceedings that Page was offered a conditional plea, predicated on passing a
polygraph, and that when he failed that polygraph the plea negotiations ended.
Consequently, we find that it is not debatable that the district court properly
denied Young’s habeas petition with regard to Page’s alleged plea bargain.
Thus no COA is warranted.
Further, even if Young’s allegations of Brady violations were correct, we
agree with the district court’s conclusion that these nondisclosures were
immaterial in light of the evidence presented at trial.
[T]here is not even a remote possibility, much less a reasonable
probability [that] the outcome of either phase of petitioner’s capital
murder trial could have been any different had the prosecution
disclosed to petitioner’s counsel prior to trial either (1) [a DA] made
a comment shortly after Ray’s arrest that he ‘probably would make
[Ray] an offer he couldn’t refuse’ or (2) [a DA] discussed with Page’s
attorney . . . the possibility of Page receiving a thirty-year sentence
prior to the time Page flunked the polygraph examination.
Young, 2014 WL 2628941, at *8. Not only was the evidence against Young
overwhelming, but the biases and motivations of the eyewitnesses were also
evident at trial. Young’s alleged new evidence may create an issue of the
degree of that bias or motive to fabricate, but it does not create a new
itself was contradictory); see also Young, 2014 WL 2628941, at *8 (“To call Ray’s testimony
before the state habeas court anything other than ambiguous would be inaccurate.”)
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argument. Faced with the other evidence adduced at trial, it is undebatable
that no reasonable jurist could conclude that the outcome of the trial could
have been any different.
II. Ineffective Assistance of Counsel
Young alleges that his counsel was ineffective because he did not: (1) test
ballistics from the crime scene; (2) call Raynaldo Villa as a witness; (3) test
Douglas’s vehicle for bullet holes; (4) conduct a forensic examination of the
murder-site gloves; or (5) object to the admission of jail records. The district
court denied as procedurally barred Young’s claims related to: (1) not calling
Raynaldo Villa to testify, (2) not testing Douglas’s vehicle for bullet holes, (3)
not conducting a forensic examination of the murder-site gloves; and (4) not
objecting to jail records. We concur. We also find Young’s ballistics claim
meritless.
A. Failure to Call Raynaldo Villa
First, Young challenges the district court’s determination that his trial
counsel’s failure to call Raynaldo Villa was not IAC. Young claims that Villa
would have testified that he heard Page admit to shooting Petrey. There are
two problems with this argument. First, the record shows that Young’s trial
counsel did not learn about any alleged statements until after trial, thus
eliminating the possibility of IAC at trial. Young, 2014 WL 509376, at *131
(“There is no fact-specific allegation now before this Court, much less any
evidence, showing . . . petitioner’s defense team were otherwise aware of Villa’s
knowledge of Page’s allegedly inculpatory comment prior to the conclusion of
petitioner’s trial . . . [or that] through the exercise of due diligence [such
evidence] could have [been] discovered . . . prior to the conclusion of petitioner’s
trial.”). Thus there can be no IAC.
Second, this claim is unexhausted and procedurally barred. Id. at *128–
29. Young admits that he did not exhaust this claim but attempts to avoid
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procedural default by arguing that mentioning Villa’s declaration in his motion
for a new trial was sufficient to exhaust his claim. This argument is
unsupported by precedent. It is also contrary to the standard for exhaustion
in habeas cases, which requires that Young provide the highest court of the
state (the TCCA in this case) an opportunity to consider the alleged
constitutional error. Smith v. Quarterman, 515 F.3d 392, 402 (5th Cir. 2008).
Given that, at best, Young referenced Villa’s testimony in his motion for a new
trial and did not appeal this issue to the TCCA, no reasonable jurist could
debate that this claim was procedurally defaulted.
B. Failure to Test Douglas’s Vehicle or the Gloves from the
Petrey Murder Scene and Failure to Object to Jail Records
Next Young challenges his trial counsel’s failure to: (1) test Douglas’s
vehicle to determine the source of two .22-caliber shell casings found in the
front passenger side of Douglas’s car; (2) test the gloves found at the Petrey
murder scene for gunshot residue; and (3) object to the admission of his
Midland County Jail records at sentencing. The district court found each of
these claims procedurally barred. Young contends that the failure to raise
these claims should be excused, pursuant to Martinez v. Ryan, 132 S. Ct. 1309
(2012), because it resulted from the failure of his state habeas counsel to raise
them.
Young advanced these three claims after his first state habeas petition
was filed. They were dismissed as an abuse of the writ by the TCCA. Young,
2006 WL 3735395. Young restated a variation on the same claims in his second
subsequent state habeas complaint, and these claims were also dismissed.
Young, 2009 WL 1546625. Based on this procedural history the district court
did not err in holding that the TCCA’s multiple dismissals of these complaints,
based upon state writ-abuse principles, bar federal habeas review. Young,
2014 WL 509376, *124, 126, 143, 154; see Coleman v. Quarterman, 456 F.3d
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537, 542 (5th Cir. 2006) (holding that “Texas’s abuse of the writ doctrine is a
valid state procedural bar foreclosing federal habeas review”).
We decline to consider Young’s claim that Martinez applies and
overcomes this procedural default. Young’s Martinez argument is not properly
raised or briefed by his passing references to the case without explanation of
how the elements of Martinez are satisfied. See Martinez, 132 S. Ct. at 1318–
19 (holding that petitioner must establish that “the claim should have been
raised, [state habeas counsel] was ineffective under the standards of
[Strickland],” . . . and “the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one.”). 4
C. Ballistics Evidence
Lastly, Young alleges that his trial counsel was ineffective because he
failed to introduce Tim Counce’s ballistics report and Richard Ernest’s forensic
report, which allegedly show that Ray possessed the gun that shot Douglas.
He also argues that his trial counsel explained the ballistics improperly during
closing argument. Young’s IAC argument concerning Counce’s ballistics report
and Ernest’s forensic report was rejected by the state court and the TCCA in
Young’s first state habeas claim. See Young, 2006 WL 3735395, at *1. Young
raised related IAC claims in March 2006; those claims were denied as a
subsequent state habeas application. See id. Young’s second subsequent state
habeas claim reiterated these previous arguments and also argued, for the first
time, that his counsel improperly explained the ballistics during closing: this
claim was dismissed. Young, 2009 WL 1546625, at *1.
4 Though we agree with the district court’s analysis concerning Young’s failure to
satisfy Martinez’s merit and prejudice prongs for each of these IAC claims, since this is a
threshold analysis and the claims are procedurally barred, there is no need to explain an
alternative holding.
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The district court dismissed Young’s new ballistics IAC claims as
procedurally barred because they were dismissed by the TCCA under the
Texas writ-abuse statute in both Young’s first successive and second successive
habeas proceedings. Young, 2014 WL 509376, at *143. 5 The district court also
found, in the alternative, that this IAC claim failed to satisfy either prong of
Strickland v. Washington, 466 U.S. 668 (1984). Id. at *144–47; Young, 2014
WL 2628941, at *9–13. We agree that no reasonable jurist could debate
whether Young’s counsel was ineffective for failing to present the ballistics
evidence or the forensics report or for improperly explaining ballistics during
closing. 6
The district court thoroughly and accurately summarized the testimony
adduced in Young’s trial. Young, 2014 WL 509376, at *2–12. All three
eyewitnesses testified consistently that Young shot Douglas in the head. Brook
testified that within hours of the murder Young confessed to him that he shot
Douglas in the head. Douglas’s body, which the police found with eyewitness
assistance, had head wounds. When Young was apprehended he had the gun
that shot the casings found in Douglas’s car and near Petrey’s body.
In contrast to this robust evidence, the ballistics evidence Young claims
created IAC is of little significance. The precise manner in which Douglas was
shot was not well-established in trial because the eyewitness testimony was
inconsistent concerning the details of where in the head Douglas was shot. The
witnesses were not, however, inconsistent when identifying Young as the
5 The district court subsequently amended its procedural holding because it
incorrectly stated that Young did not present Ernest’s report to the state habeas court.
Young, 2014 WL 2628941, at *10.
6The government has presented an alternative theory of procedural default based on
Cullen v. Pinholster, 131 S. Ct. 1388 (2011). While the court is free to affirm the district court
on any grounds, we need not address this argument because Young’s claim is clearly
meritless.
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shooter. There is simply little value to demonstrating inconsistencies between
the eyewitness descriptions of the fatal shots and the ballistics. Additionally,
Young was charged with both Douglas’s murder and being a party to Ray
shooting Douglas. Thus—even though the ballistics evidence does not
demonstrate that Ray shot Douglas—any evidence showing Ray killed Douglas
would also inculpate Young, who was a party to Ray’s conduct.
Ineffective assistance of counsel exists where counsel makes “errors so
serious that counsel is not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Not
presenting ballistics evidence that does not demonstrate innocence and is
largely irrelevant to the determination of guilt, does not arguably constitute
such an error. Considering the evidence against Young and the value of the
evidence he claims should have been admitted at trial, we affirm the district
court’s ruling that no reasonable jurist could disagree with the district court’s
holding that Young’s IAC claim did not satisfy Strickland.
III. Cumulative Error
The district court found Young’s cumulative error claim both
procedurally barred and meritless. Young, 2014 WL 509376, at *187–88. We
agree with both of the district court’s bases for denial of the petition. Because
the TCCA dismissed this cumulative error argument on state-law grounds (the
Texas writ-abuse statute), Young, 2009 WL 1546625, the claim is procedurally
barred. See Coleman, 456 F.3d at 542. Regardless, the district court was also
correct that Young has failed to demonstrate that there was any constitutional
error committed during his trial, which is required to satisfy the cumulative
error doctrine. Young, 2014 WL 509376, at *187–88 (citing Turner v.
Quarterman, 481 F.3d 292, 301 (5th Cir. 2007)).
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IV.
Young also challenges the district court’s denial of his second motion to
stay in order to advance a Brady claim and the claim that he is innocent of
capital murder. A COA is not required to review the district court’s ruling on
a non-merits issue such as a stay. See Dunn v. Cockrell, 302 F.3d 491, 492 (5th
Cir. 2002) (per curiam) (holding that a COA is not required to appeal denial of
a Rule 60 motion). Young’s contention is two-fold. First, in light of his new
Brady evidence, he argues that the district court abused its discretion by
denying his request to return to state court to pursue his Brady and innocence
claims. Second, he argues that the district court erred when it denied his
motion to supplement his petition with his counsel’s declarations regarding
alleged recantations by Kemp, Stuteville, Williams, Brook, and Page.
I. Motion to Stay
A “stay and abeyance should be available only in limited circumstances”
because “[s]taying a federal habeas petition frustrates AEDPA’s objective of
encouraging finality . . . . [and] streamlining federal habeas proceedings.”
Rhines v. Weber, 544 U.S. 269, 277 (2005). “[S]tay and abeyance is only
appropriate where [1] the district court determines there was good cause for
the petitioner’s failure to exhaust his claims in state court”; (2) the claim is not
“plainly meritless”; and (3) there is no indication that the petitioner is
“engag[ing] in abusive litigation tactics or intentional delay.” Id. at 277–78.
On appeal we review a district court’s denial of a stay and abeyance for abuse
of discretion. Id. at 279.
The district court focused primarily on the merits of Young’s argument,
element two, and found the argument wanting. Young, 2014 WL 2628941, at
*18.
At worst, petitioner’s motion for stay seeks the opportunity to re-
litigate the same Brady and Giglio–Napue claims the state habeas
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court and this Court concluded were without arguable merit by
employing a new list of witnesses who will give the same basic
testimony as the witnesses petitioner called during his most recent
state habeas corpus proceeding.
....
Petitioner has failed to support his motion for stay with sufficient
direct evidence showing his new Brady and Giglio-Napu[e]
claim[s] are any more likely to be meritorious than the ones
petitioner spent the last several years litigating in the state habeas
court and before this Court.
Id. at *18–19 (emphasis added).
The district court did not abuse its discretion in finding that Young’s
claim is plainly meritless. Assuming that the submitted declarations are
accurate reflections of the witnesses’ new testimony, in any subsequent state
court proceeding those witnesses would be impeached with a decade’s worth of
contradictory statements that they made concerning the absence of plea
agreements. They would also clash with the credible testimony of both the
trial and defense counsels, who testified that there were no plea agreements. 7
It is not reasonable to conclude that this collective evidence could lead to a
finding that a Brady violation occurred. Thus it was not an abuse of discretion
to deny Young’s motion for a stay. 8
7Young correctly notes that the district court said that Young had not made a “strong
showing” that he was likely to succeed on the merits, though Young need only show that his
claims are potentially meritorious. Young, 2014 WL 2628941, at *18 (citing Nken v. Holder,
556 U.S. 418, 434 (2009)). This takes the court’s language out of context as it also states that
Young’s argument, like his previous one, is “without arguable merit.” Id. The court also held
that Young’s new claim was not “any more likely to be meritorious than the ones petitioner
spent the last several years litigating.” Id. at *19.
8 It is likely that Young has not demonstrated good cause for the delay or that this is
not an instance of abusive litigation. We affirm on the grounds explained by the district
court, however, and do not reach these issues.
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The district court also noted that, if Young’s claims are truly new, then
what he is requesting is not a stay but rather permission to file a successive
petition. Young, 2014 WL 2628941, at *18 (“[I]f they truly be new claims, [it]
might justify an Order from the Fifth Circuit pursuant to Title 28 U.S.C. §
2244(b)(3).”). Indeed, just two months after filing this appeal, Young filed a
motion for authorization to file a successive petition. That motion described
the affidavits as “newly-discovered evidence [that] gives rise to new claims that
have not been presented in any prior habeas corpus application.” That motion
was denied. In re Young, No. 14-51288, 2015 WL 3649765, at *1 (5th Cir. June
8, 2015). We need not consider it again now.
Lastly, Young claims that a stay is warranted to advance a “potentially
meritorious new claim of actual innocence.” This claim is not properly before
this court. In the district court Young brought a procedurally barred actual
innocence claim. Young, 2014 WL 509376, at *188–90. He implied that a stay
should be granted in order to allow him to bring an actual innocence claim
based on his new evidence, but he did not actually make this argument. See
Young, 2014 WL 2628941, at *19. As a result, Young’s actual innocence claim
based on the alleged new evidence is not properly on appeal in this court.
II. Motion to Supplement
Young argues that the district court abused its discretion by denying his
motion to supplement his motion for a stay. The district court denied the
motion to supplement because the submitted declarations of counsel offered no
evidentiary value, recanting affidavits are suspicious, and, if supplementation
were allowed, it would only be for the actual statements of the recanting
witnesses. Young, 2014 WL 2628941, at *19. In response, Young cites Federal
Rule of Civil Procedure 15, which allows the court to permit supplementation
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of pleadings, 9 and Rhines, which he contends “requires only that the petitioner
allege a colorable claim” to support a claim for a stay.
The district court did not abuse its discretion by denying Young’s motion
to supplement. Young has not cited any law that required the district court to
grant his motion. Given the absence of such a requirement we find that the
district court articulated a reasonable justification for its denial. Young filed
a federal habeas petition with the district court on December 20, 2007. On
October 20, 2008, Young filed a motion to stay his case in order to return to
state court and advance new prosecutorial misconduct claims. The district
court granted that motion. Later the district court comprehensively reviewed
the evidence presented in state court and concluded that no plea bargains had
been offered. Based on this procedural history and the district court’s intimate
familiarity with the facts of the case, the district court concluded that Young’s
counsel’s declarations were of little or no value. This is not an unreasonable
interpretation and is not, therefore, an abuse of discretion.
V.
For these reasons we DENY all of Young’s motions for certificates of
appealability and AFFIRM the district court’s denial of Young’s motion for stay
and abatement and motion to supplement.
9 Rule 15 concerns the supplementation of pleadings, not the addition of evidence to
a habeas petition, and thus is inapposite. See, e.g., Burns v. Exxon Corp., 158 F.3d 336, 343
(5th Cir. 1998)
19