Whitley v. Lumpkin

Case: 21-50176 Document: 00516578785 Page: 1 Date Filed: 12/15/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-50176
Summary Calendar FILED
December 15, 2022
Lyle W. Cayce
Latray Whitley, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-618
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
In 2013, a Texas jury convicted Latray Whitley of murdering Cory
Cumby and sentenced him to life in prison. Whitley now petitions for habeas
relief. Because he cannot overcome AEDPA’s relitigation bar, we affirm.
* This opinion is not designated for publication. See 5th Cir. R. 47.5
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I.
At trial, Alvin Clark testified that he saw Whitley shoot into Cumby’s
car. And Reginald Green testified that when Whitley and Green were
incarnated together, Whitley confessed to shooting Cumby. Clark’s and
Green’s testimony was corroborated by Clark’s ex-wife, Latoya, who
testified that Clark called her on the night of Cumby’s murder and told her
that Whitley had shot at him. Donald Grinage also corroborated Clark’s
account of the shooting. Both Clark and Green denied having an agreement
with either the State or federal government to testify.
After the Texas Court of Appeals affirmed the judgment on direct
review, Whitley filed a state habeas application. He claimed: (1) The
prosecutors violated Napue v. Illinois, 360 U.S. 264 (1959), by eliciting false
testimony, and knowingly failing to correct false testimony, by Clark and
Green regarding the existence of agreements for their trial testimony; (2) The
prosecutors violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to
disclose impeachment evidence in the form of Clark’s and Green’s federal
cooperation agreements as well as audio recordings of conversations between
police and Clark’s and Green’s attorneys regarding a possible deal in
exchange for information about the Cumby murder
The state habeas trial court conducted an extensive evidentiary
hearing. It found no evidence of any agreement for either Clark’s or Green’s
testimony and concluded that Whitley had failed to demonstrate that the
State either elicited, or knowingly failed to correct, any false testimony. The
state habeas court also found no evidence that the State failed to disclose
material evidence of the presence of any such agreement. The Texas Court
of Criminal Appeals denied habeas without a written order, based on the trial
court’s findings.
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Whitley filed a § 2254 petition reasserting the above claims. The
district court denied habeas relief. We then granted Whitley a COA on the
above-specified issues.
II.
Because a state court denied Whitley’s claims on the merits,
AEDPA’s relitigation bar applies. See 28 U.S.C. § 2254(d); Langley v. Prince,
926 F.3d 145, 155 (5th Cir. 2019) (en banc). To overcome the relitigation bar,
Whitley must show the state court’s adjudication of the claim (1) “was
contrary to . . . clearly established federal law, as determined by the Supreme
Court of the United States,” (2) “involved an unreasonable application of”
such law, or (3) “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). Each § 2254(d) avenue “is difficult to meet . . . because it was
meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
Consider each in turn. First, “[a] state-court decision is contrary to
clearly established federal law only if it arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if it resolves a case
differently than the Supreme Court has on a set of materially
indistinguishable facts.” Lucio v. Lumpkin, 987 F.3d 451, 469 (5th Cir. 2021)
(en banc). Second, a state court’s application of clearly established law is
unreasonable if it is “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103. Third, because
Whitley is challenging a state conviction, the state court’s findings of fact
must be presumed correct unless rebutted “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also Lucio, 987 F.3d at 476.
Whitley claims he satisfies AEDPA’s strictures with respect to his
Napue and Brady claims. We disagree.
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Under Napue v. Illinois, “a conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall under
the Fourteenth Amendment.” 360 U.S. at 269. To that end, prosecutors may
neither knowingly use perjured testimony nor permit false testimony to go
uncorrected. Id. To establish a due process violation based on the State’s use
of false or misleading testimony, the defendant must show (1) that the
witness’s testimony was actually false, (2) that the prosecution knew the
witness’s testimony was false, and (3) that the testimony was material. Giglio
v. United States, 450 U.S. 150, 153–54 (1972).
Whitley claims the State violated Napue with respect to Clark’s and
Green’s assertions that they had no deal with either the State or federal
government for their testimony. But the state court, after several evidentiary
hearings, found that Clark and Green did not testify falsely. That finding was
reasonable and is entitled to deference. 28 U.S.C. § 2254(e)(1). Just to name
some of the factors supporting the state court’s conclusion, Clark’s and
Green’s prior plea agreements were in federal—not state—cases, were
entered more than a year before Whitley’s trial, and were not expressly
conditioned upon their testifying against Whitley; ADA Neidhardt testified
that he explicitly told Clark and Green that they would not receive any benefit
from the State for their testimony; AUSA Shearer testified that he made no
promises to Clark or Green for future sentence reductions based on their
testifying against Whitley; and Clark’s and Green’s behavior at trial
indicated that they were not under an assumption that they would receive a
benefit for testifying. Whitley cannot come close to overcoming the
presumption of correctness.
Next, under Brady v. Maryland, “the suppression by the prosecution
of evidence favorable to an accused . . . violates due process where the
evidence is material either to guilt or to punishment.” 373 U.S. at 87. The
prosecution’s duty to disclose extends to information affecting the credibility
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of witnesses whose testimony “may well be determinative of guilt or
innocence.” Giglio, 405 U.S. at 154; see also United States v. Bagley, 473 U.S.
667, 676 (1985). So, to establish a Brady violation, a petitioner must
demonstrate that (1) the prosecution suppressed evidence (2) that was
favorable to the defendant and (3) that was material to the issue of guilt or
punishment. Smith v. Cain, 565 U.S. at 75 (2012). “[E]vidence 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.”
Bagley, 473 U.S. at 682. A “reasonable probability” is one sufficient to
undermine confidence in the outcome. Pennsylvania v. Ritchie, 480 U.S. 39,
57 (1987).
Whitley claims that the State violated Brady when it failed to turn over
Clark’s and Green’s plea agreements and recordings of conversations
between police and Clark’s and Green’s attorneys. Even if the State should
have turned over the agreements and conversations, the state court
reasonably determined that such evidence was not “material.” The jury—
via Whitley’s trial counsel—was already aware that Clark and Green had
federal convictions, that they had contacted police in 2011 and gave
interviews months apart, and that neither witness had been sentenced
federally at the time they spoke with Detective McNelly. As such, the state
court reasonably determined that the jury’s additional knowledge about
Clark’s and Green’s federal plea agreements and conversations would have
had little to no marginal impeachment value. Whitley thus fails to show “the
result of the proceeding would have been different” had the evidence been
disclosed. Bagley, 473 U.S. at 682. That is particularly true where, as here,
Clark’s and Green’s testimony was corroborated by two other witnesses.
And any in event, Whitley has failed to overcome the strictures of § 2254(d).
We AFFIRM.
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