Hittle v. Johnson

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10074
Civil Action No. 3:94-CV-1788-P
DANIEL JOE HITTLE,
Petitioner,
versus
GARY JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent.
Appeal from the United States District Court for the
Northern District of Texas
August 3, 2000
Before DAVIS, JONES, and BARKSDALE, Circuit Judges.
By EDITH H. JONES, Circuit Judge:*
Appellant Daniel Joe Hittle has applied to this court for
a certificate of appealability after being denied section 2254
relief by the federal district court. The contentions he raises
are the same as those that he presented unsuccessfully to the
district court. Finding no issue that deserves encouragement to
proceed further, 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opinion should not be published and is not precedent except under the limited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.
Hittle was indicted in November 1989 for the capital
murder of Gerald Walker, a Garland, Texas police officer. During
the same crime spree, Hittle killed four other individuals. He was
found guilty of capital murder and sentenced to death. The Texas
Court of Criminal Appeals affirmed the conviction and sentence.
Hittle v. State, No. 71,138 (Tex. Crim. App. -- April 7, 1993)
(unpublished). Certiorari was denied by the U.S. Supreme Court.
Hittle exhausted his state court post-conviction remedies and then
applied to the federal district court for section 2254 habeas
relief. The district court referred the matter to a magistrate
judge whose lengthy and comprehensive report and recommendation
denying relief it accepted.
Because the district court denied a certificate of
appealability, Hittle has filed a motion for that relief in this
court. In order to issue a COA, this court must be satisfied that
Hittle has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2)(2000). This showing
requires the petitioner to demonstrate that the issues he asserts
are debatable among jurists of reason, that a court could resolve
the issues in a different manner, or that the questions are
adequate to deserve encouragement to proceed further. See Slack v.
McDaniel, ____ U.S. ____, 120 S. Ct. 1595, 1604 (2000); Barefoot v.
Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394 (1983). The
standard for reviewing the merits of section 2254 claims is set
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forth in the 1996 Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”).1
In his motion, Hittle has raised the same claims that he
put in issue before the district court. Unfortunately, he has not
bothered to explain precisely why any of the district court’s
analysis or conclusions were wrong. Despite this shortcoming, we
have reviewed each of Hittle’s claims and agree with the district
court’s reasoning.
The first contentions relate to the trial court’s
accepting the resignation of Mrs. Nancy Schmidt from the jury,
before the trial began, because of the need to care for a sick
child. Hittle argues that the juror was not disqualified under
state law, that the trial court should not have excused her, that
he should not have replaced her with an alternate juror, and that
he should have received a continuance and a later hearing to
contest the factual basis for excusing Mrs. Schmidt. As the
magistrate judge found, these objections are based on state law,
which it is not in the power of the federal habeas court to
address. Although Hittle asserts constitutional claims
conclusionally, he presents neither facts nor law connecting the
state trial court’s actions to constitutional violations, and we
1
As revised, section 2254(d) states that writs of habeas corpus shall
not be granted 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 proceeding.” 28
U.S.C. § 2254(d)(2000).
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know of no constitutional ramifications to the state court’s
decisions.
Hittle next contends that the trial court failed to
define “reasonable doubt” in its jury charge and thus erred by not
applying retroactively a 1991 decision of the Texas Court of
Criminal Appeals. This claim, like two of Hittle’s other claims
before us, was not raised in the state courts and is therefore
procedurally barred from consideration in federal habeas corpus.2
Smith v. Johnson, 99-20524 (5th Cir., July 12, 2000). In none of
these claims has Hittle made any effort to demonstrate cause or
prejudice that would constitute a basis for our avoiding the
procedural bar.
Three challenges are asserted to the jury charge in the
punishment phase: that it improperly imposed on petitioner a burden
of proof concerning mitigating evidence; that the jury should have
been charged that mitigating evidence could not be used as an
aggravating circumstance; and that the jury should have been
instructed that evidence admitted during the punishment phase of
trial [such as an abusive childhood or mental disorder] could be
used as mitigating evidence as a matter of law. These contentions
are meritless. We agree with the magistrate judge’s opinion, which
2
The other claims that Hittle did not preserve in the state court
system are his asserted denial of Sixth Amendment confrontation rights in regard
to admission of the police dispatch tape concerning the events surrounding
Officer Walker’s death, and the due process implication of testimony from
acquaintances which came in during the punishment phase of the case, that Hittle
stated his intent to kill a game warden.
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finds no constitutional flaw in the reasonable doubt instruction,
because it properly places the burden of proof on the punishment
phase issues on the state. The magistrate judge’s opinion also
relies on the analysis by the Texas Court of Criminal Appeals in
regard to the court’s instructions on how to treat mitigating
evidence. The bottom line in those analyses is that constitutional
law (a) does not require consideration of any mitigating evidence
as a matter of law; (b) does not preclude a jury from considering
mitigating evidence as an aggravating circumstance; and (c) in this
case, did not require the giving of a Penry instruction because
Hittle’s personal background did not comport with Penry. The
Supreme Court has recently instructed that federal courts are bound
to accept the legal conclusions of state courts if they are
objectively reasonable. Williams v. Taylor, 120 S. Ct. 1479, 146
L. Ed. 2d 435 (2000). Not only were the state court and district
court conclusions reasonable, but we find no other plausible
construction of the jury instructions here.
Raising a Brady claim, Hittle asserts that the state
failed to turn over to him a cash register tape used to bolster
testimony that Hittle’s wife purchased certain shotgun shells from
Outdoorsman Sporting Goods before the crime. The state court found
as a matter of fact that no such tape existed. The state court’s
findings were adopted by the Texas Court of Criminal Appeals.
Under federal law, “a determination of a factual issue made by a
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State court shall be presumed to be correct”. 28 U.S.C. §
2254(e)(1). Hittle has offered nothing to rebut the presumption of
correctness. Accordingly, because there was no cash register tape,
the state could not possibly have violated Hittle’s rights by
failing to disclose it before trial.
Hittle finally asserts five claims of unconstitutionally
ineffective assistance of counsel. As the magistrate judge
explained, Hittle has again failed to overcome findings of fact by
the state courts that refute the basis for each of these
ineffectiveness claims. In light of those factual findings, Hittle
has not demonstrated that counsel was factually ineffective within
the understanding of Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984).
For all these reasons, the motion for certificate of
appealability is DENIED.
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