Coulson v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20083
_____________________
ROBERT O COULSON
Petitioner - Appellant
v.
GARY L JOHNSON, Director, Texas
Department of Criminal Justice,
Institutional Division
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(4:99-CV-2523)
_________________________________________________________________
August 7, 2001
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Robert O. Coulson was convicted of
capital murder in Texas state court and sentenced to death.
Petitioner-Appellant appeals the district court’s denial of his
petition for a writ of habeas corpus pursuant to 28 U.S.C.
*
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that this opinion should not be published and is not precedent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.
§ 2254. Upon denial of Petitioner-Appellant’s petition, the
district court granted a certificate of appealability on three of
his five claims. Petitioner-Appellant has also filed with this
court an application for a certificate of appealability on one
additional claim. For the following reasons, we AFFIRM the
judgment of the district court denying habeas relief on the first
three claims and DENY Petitioner-Appellant’s application for a
certificate of appealability.
I. FACTUAL HISTORY
At approximately 6:15 p.m. on Friday, November 13, 1992,
firefighters were called to the scene of a residential fire at
9782 Westview in Houston, Texas. When they arrived, the
firefighters discovered the burned bodies of Otis Coulson
(“Otis”), his wife Mary Coulson (“Mary”), their adopted daughters
Sarah Coulson (“Sarah”) and Robin Wentworth (“Robin”), and
Robin’s husband Richard Wentworth (“Richard”). Each body had
been bound with zip cords or duct tape, and a plastic trash
compactor bag had been pulled over each victim’s head and secured
with duct tape. It was later learned that all five victims died
from asphyxia due to suffocation. After the victims had died,
gasoline had been poured over their bodies, and they had been lit
on fire.
The day after the murders, Petitioner-Appellant Robert O.
Coulson, Otis and Mary’s adopted son and the only remaining
2
member of the immediate Coulson family, and his roommate Jared
Althaus were located by Althaus’s brother at Althaus’s
grandfather’s farm, which was situated a few hours outside
Houston. At police request, Coulson and Althaus returned to
Houston and went immediately to the police station for
questioning. Coulson and Althaus informed the police that they
had left Houston for the farm at approximately 4:00 p.m. on the
day of the murders. In support of their story, Coulson and
Althaus produced a gasoline receipt, which was stamped at
approximately 4:27 p.m., to demonstrate that they had not been
near the Coulson home at the time of the murders.
Two days after this first police interview, on Monday,
November 16, Althaus spoke again with police officers and
recanted his earlier statement. During this Monday interview
with police, Althaus informed the police that he had dropped
Coulson off at the Coulson home on Friday afternoon and then
picked him up a few hours later. Althaus claimed that he did not
know about the murders until the next day.
Finally, on Tuesday, November 17, Althaus gave another
account of his actions on the evening of the murders. During
this account, Althaus confessed to having a role in the murders.
Althaus informed the police that he had helped Coulson plan and
carry out the murders. He confessed that, during a three-month
time period prior to the murders, he had assisted Coulson in
collecting the items used to murder Coulson’s family and that, at
3
approximately 4:00 p.m. on the day of the murders, he drove
Coulson to a drop-off point near the Coulson home. Althaus
admitted at trial that he next drove outside Houston to obtain
the gas receipt for their planned alibi and then returned to the
prearranged place at 6:00 p.m. to pick up Coulson once the house
had been set on fire. Althaus stated that he and Coulson then
drove through the back streets of Houston, discarding Coulson’s
clothing and the tools used to murder the Coulson family.
Althaus recounted that he and Coulson then drove to his
grandfather’s farm to create their alibi. After confessing to
his role in the murders, Althaus accompanied the police in an
attempt to retrace the route taken by Coulson and Althaus when
they were discarding the evidence. The police were able to
retrieve several of the discarded items.1
During the time that Althaus was confessing to his role in
the murders to the police, Coulson was attending gatherings of
family and friends, as well as the funeral for the family that
was held on Tuesday, November 17. Then, pursuant to police
instruction, Althaus contacted Coulson on the evening of the
1
Althaus testified that they disposed of, inter alia, a
crowbar; a gas can; a stun gun; a backpack; a .9 millimeter gun
that had been broken into its individual pieces; and Coulson’s
tennis shoes, jeans, sweatshirt, baseball cap, and sunglasses.
The record reveals that, with Althaus’s help, the police were
able to recover the crowbar; the gas can; the sweatshirt; the
baseball cap; the backpack; a ski mask; and .9 millimeter
bullets, a magazine, and a slide mechanism from a .9 millimeter
gun.
4
family’s funeral and asked Coulson to meet him at a local hotel.
Coulson met Althaus at the hotel, and the police recorded the
ensuing discussion using an electronic transmitter that had been
placed in the room. During the course of the recorded
conversation, Coulson made several incriminating statements2 and
repeatedly pressured Althaus to adhere to their previously
established alibi. The conversation ended, and Coulson was
arrested immediately upon exiting the hotel room.
Coulson was given his Miranda3 warnings and was placed in a
police van to be transported to the police station. En route to
the police station, Coulson was questioned by the arresting
officers and answered several of their questions. Coulson made
more incriminating statements to the police officers during this
exchange.
2
It should be noted that, during the conversation in the
hotel room, Coulson never admitted to killing his family.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
5
Coulson was indicted for the murders of Robin4 and Richard.5
The following is the district court’s thorough and accurate
description of the evidence presented at trial6:
At [Coulson]’s trial, the State presented evidence that
[Coulson] had planned for several months the murder of
his immediate family members at the family home. In
all, the guilt-innocence portion of the trial lasted
nearly three weeks. During the course of the trial,
the State presented a total of twenty-five witnesses
and eighty-three exhibits. [Coulson] offered twenty
witnesses and twenty-nine exhibits.
During this lengthy trial, the State presented
evidence that suggested [Coulson] murdered his entire
family in order to inherit each of his parents’ estate
as the sole heir. The State, however, did not present
direct physical evidence linking [Coulson] to the
crime. The State presented extensive testimony
relating to a confession by [Coulson]’s roommate and
co-conspirator Althaus. Althaus testified that he
aided [Coulson] in the planning of the murders, drove
him to the Coulson residence the evening of the murder,
and picked him up after [Coulson] had set the house on
fire. Althaus testified that [Coulson] vividly
described to him the murders after Althaus picked him
up. Althaus also testified that he had created an
alibi with [Coulson].
The State also presented testimony that [Coulson]
had made comments to friends that indicated he had
killed his family. The State also presented the
testimony of the arresting officers who testified that,
after his arrest, [Coulson] both made comments
suggesting he committed the homicides, and that he
never actually denied the crimes. Additionally, the
4
As noted supra in the text, Robin was the adopted child
of Otis and Mary Coulson. In fact, Robin was the natural sister
of Coulson, who was also adopted by Otis and Mary.
5
Coulson was indicted originally for the murders of Otis,
Mary, Sarah, Robin, and Richard. The indictment was subsequently
amended to include only the murders of Robin and Richard.
6
To be clear, at all times in this opinion, the term
“trial” refers to the guilt/innocence phase, as opposed to the
punishment phase, of Coulson’s trial.
6
State adduced evidence that [Coulson] had previously
spoken of killing his family, was inordinately
interested in the size of his parents’ estate, did not
grieve over the loss of his family, and had financial
problems.
The State adduced other circumstantial evidence
linking [Coulson] to the murders: the murders were
accomplished by someone intimately familiar with the
Coulson[s’] house and family habits; the Coulson family
traditionally met together on Friday nights; and his
family may have been anticipating his presence that
Friday evening to discuss a business opportunity.
To demonstrate the last piece of circumstantial evidence
linking Coulson to the crime, i.e., that the Coulson family
appeared to have been anticipating Coulson’s arrival to discuss a
business opportunity, the State introduced Althaus’s testimony
that Coulson had called his family members and told them all to
be at the Coulson home on Friday, November 13. Moreover, and
especially relevant to one of Coulson’s claims on appeal, the
State introduced an envelope that was found on the desk in Otis’s
office. The back of the envelope was dated August 16, 1992, and
contained notations that detailed terms of a proposed business
loan to Coulson. Through the use of photographs offered by the
State, the State represented that the envelope was found at the
center of Otis’s desktop on the night of the murders. The State
argued at trial that the envelope, which according to the
photographs was prominently displayed on Otis’s desk, supported
its theory that the Coulson family was expecting Coulson that
night.
7
For his part, Coulson testified at trial that he never made
any incriminating statements to the police or to his friends. In
addition, Coulson attempted to implicate Althaus as the murderer,
apparently because Althaus allegedly feared that Coulson’s family
believed that Althaus was homosexual and had romantic feelings
for Coulson. In contrast to Althaus’s testimony, Coulson claimed
that, instead of dropping him off near the Coulson home, Althaus
actually dropped Coulson off at the Town and Country Mall in
Houston, where Coulson was to meet his entire family for dinner
at Luby’s Cafeteria. Coulson testified that Althaus left him at
the mall shortly after 4:00 p.m. and that Coulson’s dinner plans
with his family were at approximately 5:15 or 5:30 p.m. Coulson
explained that he went to the mall early because Althaus told him
he was meeting a friend, but that Althaus would not reveal the
name of his friend. Coulson testified that, once he was dropped
off, he walked around the perimeter of the mall to a movie
theater and then went to Luby’s to wait for his family’s arrival.
When his family did not appear by 5:45 p.m., Coulson called the
Coulson home and received no answer. At around 6:15 p.m.,
Althaus returned to pick Coulson up, and the two left for the
farm. Coulson testified that when Althaus picked him up, Althaus
was sweating, “upset,” and “anxious.” In addition, Coulson
stated that Althaus was driving and stopped the car often,
claiming that he had to vomit. When questioned by Coulson
8
regarding his demeanor, Althaus stated that he had had a fight
with his friend.
Based upon the evidence presented at trial, on June 16,
1994, the jury found Coulson guilty of capital murder. Following
the punishment phase of the trial, the jury answered “yes” to the
first two special issues submitted pursuant to Article 37.071(b)
of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 37.071(b) (Vernon Supp. 2001).7 To the third special
issue, the jury responded “no.” See id. art. 37.071(e)(1).8
7
The first two special issues contained in Article
37.071(b) provide:
(b) On conclusion of the presentation of the evidence,
the court shall submit the following issues to the
jury:
(1) whether there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society; and
(2) in cases in which the jury charge at the guilt or
innocence stage permitted the jury to find the
defendant guilty as a party under Sections 7.01 and
7.02, Penal Code, whether the defendant actually caused
the death of the deceased or did not actually cause the
death of the deceased but intended to kill the deceased
or another or anticipated that a human life would be
taken.
TEX. CODE CRIM. PROC. ANN. art. 37.071(b).
8
The third special issue provides:
The court shall instruct the jury that if the jury
returns an affirmative finding to each issue submitted
under Subsection (b) of this article, it shall answer
the following issue:
Whether, taking into consideration all of the
evidence, including the circumstances of the offense,
the defendant’s character and background, and the
personal moral culpability of the defendant, there is a
9
Accordingly, on June 22, 1994, the state trial court sentenced
Coulson to death. See id. art. 37.071(g).9
II. PROCEDURAL HISTORY
In the automatic direct appeal following Coulson’s
conviction, the Texas Court of Criminal Appeals (“CCA”) affirmed
his conviction in an unpublished opinion. See Coulson v. State,
No. 71,948 (Tex. Crim. App. Oct. 16, 1996). Coulson then filed a
state application for habeas relief on September 2, 1997. On
October 9, 1998, the convicting court set an evidentiary hearing,
which was conducted on November 3, 1998. On January 5, 1999, the
convicting court filed its recommended findings of fact and
conclusions of law and ordered that these findings and
conclusions be transmitted along with the record of the
proceedings to the CCA. The CCA denied habeas relief on June 9,
1999, stating in an unpublished order that the trial court’s
recommended findings of fact and conclusions of law were
supported by the record. See Ex Parte Coulson, No. 40,437-01
sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment rather
than a death sentence be imposed.
TEX. CODE CRIM. PROC. ANN. art. 37.071(e)(1).
9
Article 37.071(g) states that “[i]f the jury returns an
affirmative finding on each issue submitted under Subsection (b)
of this article and a negative finding on an issue submitted
under Subsection (e) of this article, the court shall sentence
the defendant to death.” TEX. CODE CRIM. PROC. ANN. art. 37.071(g).
10
(Tex. Crim. App. June 9, 1999). At this time, no execution date
has been set for Coulson.
Coulson filed his federal petition for a writ of habeas
corpus on August 9, 1999.10 In his federal petition, Coulson
raised the following five claims: (1) that his conviction
violated the Due Process Clause of the Fourteenth Amendment
because the State knowingly presented false evidence against him
(i.e., photographic evidence and testimony regarding the location
of the envelope) to secure his conviction (“false-evidence
claim”); (2) that his conviction violated the Due Process Clause
of the Fourteenth Amendment because, having presented false
evidence against him in order to secure his conviction, the State
failed to disclose information within its possession to
demonstrate that the evidence was false, in violation of Brady v.
Maryland, 373 U.S. 83 (1963) (“Brady claim”); (3) that his
conviction violated the Sixth Amendment’s guarantee of effective
assistance of counsel because his trial counsel failed to object
to the State’s use of Coulson’s post-arrest, post-Miranda
silence, which was protected under Doyle v. Ohio, 426 U.S. 610(1976) (“Doyle claim”); (4) that his conviction violated the
Sixth Amendment’s guarantee of effective assistance of counsel
because his trial counsel failed to request a limiting
instruction on the arresting officers’ testimony regarding
10
Coulson’s state habeas counsel was also appointed to
represent him during the federal habeas proceedings.
11
Coulson’s statements in the police van after his arrest
(“limiting-instruction claim”); and (5) that his conviction
violated the Sixth Amendment’s guarantee of effective assistance
of counsel because his trial counsel failed to discover the
allegedly false evidence (“failure-to-discover claim”).
Respondent-Appellee Gary L. Johnson filed an answer and moved for
summary judgment. On August 31, 2000, the district court granted
Johnson’s motion. At the same time, the district court granted
on its own motion a certificate of appealability (“COA”) on
Coulson’s false-evidence claim. See 28 U.S.C. § 2253(c)(1)
(Supp. 2001).
Coulson then moved for reconsideration of the judgment and
to alter or amend the judgment. On December 12, 2000, the
district court granted Coulson’s motion for reconsideration of
the judgment, but once again granted Johnson’s motion for summary
judgment. However, the district court did grant in part
Coulson’s motion to alter or amend the judgment and granted
Coulson a COA on his Brady and Doyle claims, but refused to grant
a COA on his limiting-instruction and failure-to-discover claims.
Coulson timely appealed. Coulson has also applied to this
court for a COA on his limiting-instruction claim.
As noted, the district court granted a COA for Coulson to
appeal his false-evidence, Brady, and Doyle claims. Although
Coulson’s counsel briefed only the false-evidence claim, in an
abundance of caution, we elect to address all three claims on
12
which the district court granted a COA. We will first evaluate
Coulson’s false-evidence and Brady claims and then turn to his
Doyle claim and application for a COA on his limiting-instruction
claim, analyzing the latter two claims under the familiar test
set out in Strickland v. Washington, 466 U.S. 668 (1984).
III. STANDARD OF REVIEW
This court reviews the district court’s grant of summary
judgment de novo. See Williams v. Scott, 35 F.3d 159, 161 (5th
Cir. 1994). We consider all of the facts contained in the
summary judgment record and the inferences to be drawn therefrom
in the light most favorable to the nonmoving party. See id.Because Coulson filed his petition for federal habeas corpus
after April 24, 1997, his appeal is also governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 100 Stat. 1214 (1996). See Penry v.
Johnson, 121 S. Ct. 1910, 1918 (2001); Martin v. Cain, 246 F.3d
471, 475 (5th Cir. 2001). As such, in our review of Coulson’s
claims, we are constrained by the dictates of 28 U.S.C. § 2254(d)
(Supp. 2001).
Under § 2254(d) of AEDPA, habeas relief is not available to
a state prisoner
with respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim —
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
13
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)(1) & (2); see also Gardner v. Johnson, 247
F.3d 551, 557 (5th Cir. 2001); Martin, 246 F.3d at 475. Under
this standard of review, then, “pure questions of law and mixed
questions of law and fact are reviewed under § 2254(d)(1), and
questions of fact are reviewed under § 2254(d)(2).” Corwin v.
Johnson, 150 F.3d 467, 471 (5th Cir. 1998); see also Martin, 246
F.3d at 475-76.
For questions of law, “[a] state court decision will be
‘contrary to’ [the Supreme Court’s] clearly established precedent
if the state court either ‘applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases,’ or
‘confronts a set of facts that are materially indistinguishable
from a decision of this Court and nevertheless arrives at a
different result from [Supreme Court] precedent.’” Penry, 121 S.
Ct. at 1918 (quoting (Terry) Williams v. Taylor, 529 U.S. 362,
405-06 (2000)); see also Murphy v. Johnson, 205 F.3d 809, 813
(5th Cir.) (“We review pure questions of law under the ‘contrary
to’ standard of sub-section (d)(1)[.]”), cert. denied, 121 S. Ct.
380 (2000).
For mixed questions of law and fact, “[a] state court
decision will be an ‘unreasonable application of’ [the Supreme
Court’s] clearly established precedent if it ‘correctly
14
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case.’” Penry, 121 S.
Ct. at 1918 (quoting (Terry) Williams, 529 U.S. at 407-08); see
also Murphy, 205 F.3d at 813. In distinguishing an “unreasonable
application” from an “incorrect” one, the Supreme Court has
clarified that “even if the federal habeas court concludes that
the state court decision applied clearly established federal law
incorrectly, relief is appropriate only if that application is
also objectively unreasonable.” Penry, 121 S. Ct. at 1918; see
also (Terry) Williams v. Taylor, 529 U.S. 362, 410-11 (2000).
IV. FALSE-EVIDENCE CLAIM
A. The Envelope
As mentioned supra in Part I, in an attempt to demonstrate
that the Coulson family was expecting Coulson on the night of the
murders and thus placing Coulson at the scene of the crime, the
State introduced photographs of Otis’s desk with an envelope
being prominently displayed in the center of the desktop. On the
back of the envelope were the particulars of a proposed business
loan from Otis to Coulson. The State argued at trial that the
envelope’s presence on the desk demonstrated that Otis was
expecting his son that evening in order to discuss a new business
venture.11
11
Testimony at trial revealed that the proposed loan
actually related to a prior business venture in which Coulson was
interested. Testimony established that this prior venture had
fallen through before the murders.
15
At trial, the State introduced State’s Exhibits 14, 15, and
16, which were photographs of Otis’s desk allegedly taken
immediately after the fire. The exhibits were introduced through
Detective Beth Halling, a crime scene investigator for the
Houston Police Department Homicide Division, who testified under
oath that the photographs accurately depicted the crime scene on
the night of the murders. Exhibits 15 and 16 are close-up
photographs of the desk in the office showing the envelope
prominently displayed on the desktop. Exhibit 14, in contrast,
is a photograph showing the desk without the envelope on it.
When asked about the envelope in Exhibits 15 and 16, Detective
Halling testified that she had no personal knowledge of the
envelope on the desk because, at the time she took the pictures
on the evening of the murders, it was very dark and she did not
personally examine the items on the desk.
At the state habeas evidentiary hearing, however, testimony
revealed that, instead of being isolated and centered on the desk
on the evening of the murders, the envelope actually had been
discovered the next day by Houston police officer Dale Atchetee
in a stack of papers located on the side of the desktop. Officer
Atchetee testified that he found the envelope in the stack of
papers under a turtle paperweight, thought it to be relevant, and
placed it in the center of the desktop to be photographed.
Further, Detective Halling testified at the state
evidentiary hearing that while she did take the photograph in
16
Exhibit 14, she did not take the photographs in Exhibits 15 and
16. She conceded therefore that her testimony at the trial had
been “mistaken.” It was therefore established at the state
evidentiary hearing that Exhibits 15 and 16 were actually taken
by another crime scene detective L.R. Verbitskey the day after
the murders and were submitted with Detective Halling’s
photographs for processing.
Coulson argued to the district court that by advancing
evidence regarding the position of the envelope on the desk, the
State presented false evidence against him, and therefore, his
resulting conviction was based upon a denial of due process
guaranteed to him by the Fourteenth Amendment. Coulson asserted
that the envelope was critical at trial because it was “the only
circumstantial evidence at the scene of the crime suggesting
[Coulson] had been present at the time of the killing” and that
its true location rendered it “actually worthless.”12
12
Coulson argues on appeal that the district court erred
in deciding this issue without first affording him discovery and
an evidentiary hearing. He argued for the first time to the
district court that not only was the envelope not in the center
of the desktop when it was first discovered, it was not on the
desktop at all. He claims that Officer Atchetee gave implausible
testimony at the state evidentiary hearing when he testified that
he discovered the envelope in a stack of papers located at the
side of the desktop.
The district court declined to grant the evidentiary hearing
because, inter alia, Coulson “did not bring to the attention of
the state habeas courts his contention that the envelope was not
found on Otis Coulson’s desk.” The district court concluded that
the claim was procedurally barred because “[t]o the extent that
this contention could be said to actually be relevant to the
false evidence legal claim . . . the argument that the envelope
17
B. The District Court Properly Concluded that Evidence Regarding
the Location of the Envelope Was Not Material
“It is well settled that the State is not permitted to
present false evidence or allow the presentation of false
evidence to go uncorrected.” Moody v. Johnson, 139 F.3d 477, 484
(5th Cir. 1998); see also Giglio v. United States, 405 U.S. 150,
153 (1972) (“As long ago as Mooney v. Holohan, 294 U.S. 103, 112
(1935), this Court made clear that deliberate deception of a
court and jurors by the presentation of known false evidence is
incompatible with ‘rudimentary demands of justice.’ . . . ‘The
same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.’”
(parallel citations and alteration omitted) (quoting Napue v.
Illinois, 360 U.S. 264, 269 (1959))). A conviction that results
from such a denial of due process cannot be permitted to stand.
was somewhere other than under the turtle paperweight on the desk
constitutes an unexhausted contention.” Moreover, the district
court found that Coulson failed to demonstrate cause and
prejudice such to overcome the procedural bar. We conclude that
the district court did not abuse its discretion in declining to
grant an evidentiary hearing on this issue. See Robison v.
Johnson, 151 F.3d 256, 268 (5th Cir. 1998) (stating that the
petitioner “must still show that the district court abused its
discretion in denying the hearing”); see also Barrientes v.
Johnson, 221 F.3d 741, 761 (5th Cir. 2000) (quoting in agreement
a prior unpublished opinion in that case for the proposition that
“‘a habeas petitioner fails to exhaust state remedies when he
presents additional factual allegations and evidentiary support
to the federal court that was not presented to the state
court’”), cert. dism’d by 121 S. Ct. 902 (2001); Joyner v. King,
786 F.2d 1317, 1320 (5th Cir. 1986).
18
See United States v. Anderson, 574 F.2d 1347, 1355 (5th Cir.
1978).
To demonstrate a due process violation based upon the
State’s knowing use of false or misleading evidence, Coulson must
show that (1) the evidence was false, (2) the evidence was
material, and (3) the State knew that the evidence was false.
See Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997) (citing
Giglio, 405 U.S. at 153-54); Westley v. Johnson, 83 F.3d 714, 726
(5th Cir. 1996).
After a review of the evidence presented at the state habeas
evidentiary hearing, the state habeas court concluded that
Coulson “fail[ed] to show that his right to due process was
violated concerning the location, discovery, recovery, and
admission into evidence of [the envelope].” Then, in the federal
habeas proceedings, regarding the first and third elements of
this alleged false-evidence violation, the district court
assumed, without deciding, that the trial testimony and evidence
relating to the location of the envelope was “false” and
concluded that the State “should have known” the evidence was
false. We agree that the state evidentiary hearing, which
demonstrated that Detective Halling falsely informed the trial
court under oath that Exhibits 15 and 16 accurately depicted the
scene of the crime on the night of the murders, sufficiently
establishes that the evidence regarding the location of the
envelope was “false.” We also agree that this knowledge may be
19
imputed from the police to the prosecution. See United States v.
Antone, 603 F.2d 566, 569 (5th Cir. 1979) (“Had the investigators
been federal, their knowledge would have been imputed to the
prosecution. In considering use of perjured testimony this Court
has declined to draw a distinction between different agencies
under the same government, focusing instead upon the ‘prosecution
team’ which includes both investigative and prosecutorial
personnel.”). We pretermit, however, any consideration of
whether the State knew the evidence was false (an issue as to
which the state habeas court’s findings are somewhat unclear),
because this case can be resolved by looking at whether the
evidence was material.
In Giglio v. United States, the Supreme Court explained that
false evidence is “material” if there is “‘any reasonable
likelihood [that the false evidence could] have affected the
judgment of the jury.’” 405 U.S. at 154 (quoting Napue v.
Illinois, 360 U.S. 264, 269 (1959)); see also Barrientes v.
Johnson, 221 F.3d 741, 756 (5th Cir. 2000), cert. dism’d by 121
S. Ct. 902 (2001); Moody, 139 F.3d at 484; Nobles, 127 F.3d at
415; Westley, 83 F.3d at 726; Kirkpatrick v. Whitley, 992 F.2d
491, 497 (5th Cir. 1993).
20
This court has recognized the difference between the
materiality standard for false-evidence claims, as described in
Giglio, and the one for Brady13 claims:
We observe that different standards of materiality
apply to Brady claims and claims that the prosecution
has knowingly used perjured testimony or false
evidence. The materiality standard for Brady claims,
regardless of whether the defense made a specific or
general request (or no request at all) for the withheld
evidence prior to trial, is as follows: “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 be different. A
‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” Conversely, if
the prosecutor has knowingly used perjured testimony or
false evidence, the standard is considerably less
onerous: the conviction “must be set aside if there is
any reasonable likelihood that the false testimony
could have affected the jury’s verdict[.]”
Kirkpatrick, 992 F.2d at 497 (emphasis added) (footnotes and some
internal quotations omitted) (quoting James v. Whitley, 926 F.2d
1433, 1439 (5th Cir. 1991), and United States v. Bagley, 473 U.S.
667, 679 n.9 (1985), respectively).
Furthermore, materiality is a mixed question of law and
fact. See Nobles, 127 F.3d at 416. As such, to the extent that
the state habeas court adjudicated the issue of materiality on
the merits, we are precluded from affording habeas relief to
Coulson unless the state court’s decision “involved an
unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United States.”
13
Brady v. Maryland, 373 U.S. 83 (1963).
21
28 U.S.C. § 2254(d)(1); see also Murphy v. Johnson, 205 F.3d 809,
813 (5th Cir.), cert. denied, 121 S. Ct. 380 (2000).
The district court addressed the materiality issue in
Coulson’s false-evidence claim in two extremely thorough and
well-reasoned memorandum opinions, one addressing Coulson’s
application for a writ of habeas corpus and the second examining
Coulson’s claim on his motion for reconsideration. In its first
memorandum opinion, the district court concluded that there was
“compelling independent” evidence which precluded a finding that
there was any reasonable likelihood that the jury “would have
been influenced by the envelope’s true location” and that the
evidence “suggests strongly that [Coulson] would have been
convicted even absent the allegedly fabricated evidence.”
On appeal, Coulson contends that the district court “took a
wrong turn when it relied on the construction of the Giglio
standard [of materiality] deriving from United States v.
Anderson, 574 F.2d 1347, 1354 (5th Cir. 1978).” Coulson argues
that, instead of asking whether the jury’s verdict might have
been affected, the district court relied on Anderson’s language
to hold that in order for a court to find materiality, it must
conclude that the jury’s verdict might have been different. See
Anderson, 574 F.2d at 1356 (“A new trial is necessary when there
is any reasonable likelihood that disclosure of the truth would
have affected the judgment of the jury, that is, when there is a
reasonable likelihood its verdict might have been different.”
22
(emphasis added)). Coulson asserts that this underscored
language in Anderson places a “gloss” over the Giglio standard,
which incorporates an “outcome-determinative” component, making
proof of materiality a more onerous burden for the accused — a
burden equivalent to the one required by Brady.
At one point in its first memorandum opinion, the district
court did quote Anderson as stating, “A new trial is necessary
when there is any reasonable likelihood that disclosure of the
truth would have affected the judgment of the jury, that is, when
there is a reasonable likelihood the verdict might have been
different.”14 However, while the court did recite this standard,
it made perfectly clear that it was applying the Giglio “affected
the judgment” standard. In fact, in a footnote, the district
court recognized the difference between the Giglio and
Brady standards, observing that the Giglio materiality standard
14
We note that while Anderson does define the false-
evidence materiality standard in this language, the remainder of
the Anderson opinion recognizes that “[e]ach type of situation
requires the application of a separate analysis and a distinct
test for materiality in order to determine whether or not the
alleged suppression was so fundamentally unfair as to deny the
Due Process right of a fair trial.” 574 F.2d at 1353. The
Anderson court recognized the appropriate standard for false-
evidence claims that a conviction must be set aside “‘if there is
any reasonable likelihood that the false testimony could have
affected the judgment of the jury.’” Id. at 1355 (emphasis
added) (quoting United States v. Agurs, 427 U.S. 97, 103 (1975)).
The court also acknowledged that the false-evidence materiality
standard was the “lowest threshold.” See id. Thus, Coulson is
correct that a proper reading of Anderson cannot be based solely
on the language adopted by the district court in its first
memorandum opinion.
23
was “considerably less onerous” than the Brady standard.15
Still, in “an exercise of caution,” the district court, in its
second memorandum opinion, reconsidered its judgment in light of
Coulson’s argument that it had applied a standard equivalent to
the one in Brady and arrived at the same conclusion as it did in
its first memorandum opinion — that “[t]here is no reasonable
likelihood that in this case the false evidence could have
affected the jury’s verdict.” We agree with the district court
that, considering the compelling independent evidence adduced at
trial, there is no reasonable likelihood that the evidence
regarding the location of the envelope could have affected the
judgment of the jury.
Materiality must be evaluated in light of all of the
evidence. See United States v. Magouirk, 680 F.2d 108, 110 (11th
15
The district court explained:
It should be noted that the standard for materiality
for the presentation of false testimony is different
than the materiality standard for Brady claims. The
materiality standard for Brady claims focuses on
whether there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different. A
“reasonable probability” is a probability sufficient to
undermine confidence in the outcome. The materiality
standard for the presentation of fraudulent testimony,
however, is considerably less onerous: the conviction
must be set aside if there is any reasonable likelihood
that the false testimony could have affected the jury’s
verdict[.]
(Internal quotations omitted, citations omitted, and emphasis
added).
24
Cir. 1982) (“The false testimony must be material before a
conviction will be overturned, and materiality must be evaluated
in light of all the evidence adduced at trial.”); Anderson, 574
F.2d at 1355; cf. United States v. Valenzuela-Bernal, 458 U.S.
858, 874 (1982); United States v. McLernon, 746 F.2d 1098, 1122
(6th Cir. 1984). At the same time, however, our review of the
independent evidence is not a sufficiency of the evidence review.
See United States v. Barham, 595 F.2d 231, 242 (5th Cir. 1979)
(“There is no doubt that the evidence in this case was sufficient
to support a verdict of guilty. But the fact that we would
sustain a conviction untainted by the false evidence is not the
question.”); cf. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (“The
second aspect of [United States v. ]Bagley[, 473 U.S. 667 (1985)]
materiality bearing emphasis here is that it is not a sufficiency
of evidence test.”); United States v. Smith, 77 F.3d 511, 515
(D.C. Cir. 1996) (stating, in evaluating a Brady claim, that “the
test for materiality is not a sufficiency-of-the-evidence test”).
As we explained above, false evidence is “material” only if
there is “‘any reasonable likelihood [that it could] have
affected the judgment of the jury.’” Giglio, 405 U.S. at 154(quoting Napue, 360 U.S. at 269); see also Moody, 139 F.3d at
484. In United States v. Bagley, the Supreme Court explained
that this materiality standard “is equivalent to the Chapman[ v.
California, 386 U.S. 18 (1967)] harmless-error standard.” 473
U.S. 667, 679 n.9 (1985); see also United States v. Alzate, 47
25
F.3d 1103, 1110 (11th Cir. 1995); Barham, 595 F.2d at 242 (“[The
false-evidence materiality standard] is the brother, if not a
twin, of the standard (‘harmless beyond a reasonable doubt’) for
determining whether constitutional error can be held harmless.”).
Under the Chapman standard, then, “the beneficiary of a
constitutional error [must] prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict
obtained.” Chapman, 386 U.S. at 24. “A strict standard is
appropriate because, as the Supreme Court has explained, false
testimony cases involve not only ‘prosecutorial misconduct,’ but
also ‘a corruption of the truth-seeking function of the trial
process.’” Barham, 595 F.2d at 242 (quoting United States v.
Agurs, 427 U.S. 97, 104 (1975)).
“To say that an error did not contribute to the verdict is
. . . to find that error unimportant in relation to everything
else the jury considered on the issue in question[.]” Yates v.
Evatt, 500 U.S. 391, 403 (1991), overruled on other grounds by
Estelle v. McGuire, 502 U.S. 62 (1991). Thus, under Chapman, a
reviewing court must “make a judgment about the significance of
the presumption [created by the false evidence] to reasonable
jurors, when measured against the other evidence considered by
those jurors independently of the presumption.” Id. at 404.
The district court recognized that “[t]he envelope was one
of many pieces of evidence that the State introduced at trial to
prove [Coulson]’s motive and opportunity to commit the murders”
26
and that “[t]he envelope was only a small piece of a complex
evidentiary record and the State’s argument about it was one of
many contentions in closing argument at the trial.”16 The
district court pointed to the following independent evidence of
Coulson’s guilt: (1) statements made by Coulson in the tape-
recorded conversation with Althaus and his insistence that
Althaus should stick by the alibi the two had created; (2)
Coulson’s statements to his friend Kenneth Smith, including “I
could have run. But what the hell, I did it, and I’m not going
to run.”; (3) evidence that suggested Coulson’s alibi was
manufactured; (4) evidence that Coulson did not grieve over the
death of his family members; (5) evidence that someone who was
intimately familiar with the Coulson residence committed the
murders; (6) statements by Coulson in which he ostensibly joked
about his parents spending his inheritance and about them dying;
(7) evidence that Coulson had financial difficulties and desired
to live beyond his means; (8) evidence that Coulson called the
family lawyer soon after the murders to inquire into the size of
his inheritance, his desire to have his parents’ wills probated
16
The district court also evaluated the effect of the
evidence on Althaus’s testimony, concluding that “while the
supposed location of the envelope did tend to corroborate one
small aspect of Althaus’s testimony, i.e., that [Coulson]
notified his family that he would visit the Coulson house the
evening of the murders, evidence concerning the true location of
the envelope would not necessarily discredit Althaus’s
testimony.” We agree with the district court that the fact that
the envelope was not located in the center of the desktop does
not necessarily call Althaus’s testimony into doubt.
27
as soon as possible, and his concern over the fact that another
heir to his parents’ estate might exist; (9) testimony by
Althaus’s brother that Coulson stated, “My parents have screwed
me for the last time. I’m going to kill them.”; (10) testimony
demonstrating that Coulson had “precise knowledge” as to where
each of the five bodies were found; and (11) Coulson’s testimony
that he knew Robin and Richard went to the Coulson residence
every Friday night.17
We agree with the district court that “[g]iven the
overwhelming quantity and quality of the other evidence in the
record supporting the jury’s verdict, . . . the introduction of
erroneous information concerning the location of the envelope was
not ‘material’ for the purpose of false evidence claims, i.e.,
that there was a reasonable likelihood that a disclosure of the
truth would have affected the judgment of the jury.” (Citations
omitted).18 Without minimizing the error of the State in
17
Like the district court, in reviewing the independent
evidence, we do not take into account Coulson’s statements made
to the arresting officers, as they are the subject of Coulson’s
limiting-instruction claim. See infra Part VI.C. We conclude
the independent evidence demonstrates a lack of materiality
without these statements.
18
Coulson charges that the “improper willingness to view
ambiguities and conflicts in the record in the light most
favorable to the conclusion that the false evidence was not
material permeate[d] the district court’s entire analysis.”
Coulson contends that the evidence upon which the district court
relied can not be considered “compelling” because it was
“ambiguous” and “hotly contested.” While the summary judgment
standard requires that a court entertaining a motion for summary
judgment must view the evidence in the light most favorable to
28
introducing the inaccurate evidence and testimony, when measured
against the other independent evidence of Coulson’s guilt, we
conclude that the effect of the evidence regarding the location
of the envelope was “comparatively minimal” and thus did not
“contribute to” the jury’s verdict, such that the jury still
would have found Coulson guilty beyond a reasonable doubt. See
Chapman, 500 U.S. at 405. Accordingly, the state habeas court’s
decision did not rest on an unreasonable application of federal
law, 28 U.S.C. § 2254(d)(1), and we affirm the district court’s
grant of summary judgment in favor of Johnson on Coulson’s false-
evidence claim.19
the nonmovant, in habeas proceedings, that court is also bound by
the dictates of AEDPA.
The state habeas court made numerous findings of fact
regarding the evidence that was presented at trial on which the
district court (and this court) relied. Coulson points to his
testimony at trial to demonstrate that the evidence cited by the
district court was “hotly contested.” We believe, however, that
Coulson has not adduced “clear and convincing” evidence for us to
conclude that the state habeas court’s factual findings are
erroneous. See 28 U.S.C. § 2254(e)(1) (Supp. 2001) (“The
applicant shall have the burden of rebutting the presumption of
correctness [of the state court’s factual findings] by clear and
convincing evidence.”). Therefore, the district court properly
considered the above-cited evidence to conclude that materiality
was lacking.
19
In its second memorandum opinion, the district court
also conducted a Brecht v. Abrahamson, 507 U.S. 619 (1993),
harmless-error review, stating that in Barrientes v. Johnson, 221
F.3d at 756, this court held that a reviewing court utilizing the
“any reasonable likelihood” standard of materiality must apply
the Brecht harmless-error standard if a petitioner demonstrates a
valid claim. Under the Brecht harmless-error standard, a court
must consider whether the error “had substantial and injurious
effect or influence in determining the jury’s verdict.” 507 U.S.
at 637 (internal quotations omitted) (quoting Kotteakos v. United
29
V. BRADY CLAIM
In his brief supporting his federal petition for a writ of
habeas corpus, Coulson argued to the district court that he was
entitled to relief under Brady v. Maryland, 373 U.S. 83 (1963),
because “of the failure of the prosecution to disclose its
knowledge . . . that its evidence showing the location of the
envelope . . . on the night of the murders was false.” He
claimed that the evidence adduced at the state habeas proceeding
demonstrated that the State had the information at its disposal
to show the jury that State’s Exhibits 15 and 16 were not taken
by Detective Halling on the night of the murders and that the
envelope had, in fact, been moved from its original location and
placed in the center of the desktop. Coulson argued that the
State’s failure to disclose this information violated his due
process rights.
“The suppression of evidence material to guilt or punishment
violates a defendant’s fundamental due process rights.” Dowthitt
v. Johnson, 230 F.3d 733, 755 (5th Cir. 2000), cert. denied, 121
States, 328 U.S. 750, 776 (1946)).
We note that in Barrientes, this court did not require that
courts in this circuit conduct such a review; we only “assume[d],
without deciding,” that the application of the Brecht harmless
error standard of review would be appropriate in that case.
However, even if we were to assume here (again, without deciding)
that such an analysis is necessary, we agree with the district
court that any error would not require reversal because the false
evidence in this case does not meet the Brecht standard of having
a “substantial and injurious effect or influence in determining
the jury’s verdict.” Id.30
S. Ct. 1250 (2001). The State’s duty to disclose such evidence
applies even when the defendant made no request for it. See
Strickler v. Greene, 527 U.S. 263, 280 (1999). To demonstrate a
Brady violation, Coulson must show that (1) the evidence was
favorable to him, (2) the State suppressed the evidence, and (3)
the evidence was material. See Strickler, 527 U.S. at 281-82;
United States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000);
Dowthitt, 230 F.3d at 755. As with Coulson’s false-evidence
claim, the materiality component is also the dispositive element
on this claim.
For the Brady materiality analysis, evidence is considered
“material” if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley,
473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S.
419, 433-34 (1995). “A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Bagley, 473
U.S. at 682.
The state habeas court concluded that Coulson failed to
demonstrate “that either the police or the prosecution
manufactured evidence or suppressed information concerning the
location, discovery, recovery, and admission into evidence of
[the envelope].” The district court held that the state court’s
conclusion was not contrary to, and did not involve an
31
unreasonable application of, Brady. See 28 U.S.C. § 2254(d)(1).
We agree.
As we stated above, the dispositive issue here is whether
the evidence regarding the true location of the envelope was
material. Coulson’s Brady claim fails on this point. In Part
IV.B supra, we observed that Brady’s standard of materiality is
more demanding than that for false-evidence claims (i.e., Brady
requires a showing that, without the challenged suppression, the
outcome would have been different, not merely affected).
Because we have already determined that Coulson’s false-
evidence claim does not meet the less onerous Giglio materiality
standard, it “necessarily follows” that his Brady claim is
similarly doomed. Cf. United States v. Anderson, 574 F.2d 1347,
1356 (5th Cir. 1978) (“Once we have concluded that the challenged
suppression fails to satisfy the lowest Brady doctrine threshold
for materiality and reversal, it necessarily follows that the
application of higher thresholds, which require greater showings
of materiality in order to gain a reversal, cannot aid Anderson
in his cause.”). Accordingly, because there is no reasonable
probability that the result of the proceeding would have been
different had the State disclosed evidence regarding the true
location of the envelope, we conclude that district court
properly granted summary judgment in favor of Johnson on
Coulson’s Brady claim.
32
VI. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS
We now evaluate Coulson’s claims that his conviction
violated the Sixth Amendment’s guarantee of effective assistance
of counsel because his trial counsel (1) failed to object to the
State’s use of Coulson’s post-arrest, post-Miranda silence, which
was protected under Doyle v. Ohio, 426 U.S. 610 (1976), and (2)
failed to request a limiting instruction on the arresting
officers’ testimony regarding Coulson’s statements in the police
van after his arrest. Our review under AEDPA has many layers.
Regarding Coulson’s Doyle claim, in resolving the question
whether the state habeas court unreasonably applied the well-
established Strickland v. Washington, 466 U.S. 668 (1984) test
for ineffective assistance of counsel, we must also decide
whether there was a predicate constitutional Doyle error and
whether the state habeas court was objectively unreasonable in
applying that clearly established federal law. We address first
the Strickland standard and then the Doyle claim within that
standard. We then turn to Coulson’s second ineffective
assistance claim involving the limiting instruction.
A. The Standard for Ineffective-Assistance-of-Counsel Claims
Ineffective-assistance-of-counsel claims are evaluated under
the standard announced in Strickland. See 466 U.S. at 687. To
obtain relief for ineffective assistance of counsel, Coulson must
demonstrate that (1) trial counsel’s performance was deficient
33
and (2) the deficient representation prejudiced his defense. See
id.; Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999).
Deficient performance is established by demonstrating that
“counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688; Kitchens, 190 F.3d
at 701. “This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687; see also (Terry) Williams v. Taylor, 529 U.S.
362, 390 (2000).
The latter showing of the Strickland test — that counsel’s
performance prejudiced the defendant — requires the defendant to
demonstrate that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”
466 U.S. at 687; (Terry) Williams, 529 U.S. at 390. To establish
prejudice, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694; (Terry) Williams, 529 U.S. at 391.
Under AEDPA, because they involve mixed questions of law and
fact, ineffective-assistance-of-counsel claims are evaluated
under the standard of review contained in 28 U.S.C. § 2254(d)(1).
See Kitchens, 190 F.3d at 701. As stated, a federal habeas court
is precluded from granting relief on Coulson’s claims, unless
“the state court decision rested on ‘an unreasonable application
34
of application of clearly established federal law.’” Id.(quoting 28 U.S.C. § 2254(d)(1)); see also supra Part III.
B. Doyle Claim
After Coulson’s arrest, the arresting officers placed him in
the back of a police van to transport him to the police station.
Coulson received his Miranda warnings and then answered several
of the officers’ questions, making incriminating statements in
the process. During this exchange with the officers, Coulson did
not deny his involvement in the murders.
At trial, Coulson testified on his own behalf and, on direct
examination, categorically denied any involvement in the murders.
Furthermore, on direct examination, Coulson denied making the
incriminating statements in the back of the police van, including
an admission to killing his family. On cross-examination, the
State asked him three separate times whether, when questioned by
the officers in the back of the van, he denied his involvement in
the murders. Each time, Coulson responded that he did not deny
killing his family members.20
Coulson argued to the district court that the prosecutor’s
questions highlighted the fact that he was silent instead of
speaking up and denying his role in the murders. Coulson
contended to the court that this post-arrest, post-Miranda
silence was protected by Doyle and that his trial counsel’s
20
See infra notes 23 & 24.
35
failure to object constituted ineffective assistance of counsel.
Coulson argued that there was “no imaginable strategic
justification for deliberately allowing the prosecutor illegally
to impeach [him] even once, much less repeatedly” and that
counsel’s error denied him a fair trial.
The state habeas court concluded that “[t]he State properly
attempted to impeach [Coulson] concerning his prior, exculpatory
testimony presented during direct examination that he had told
police officers certain things after his arrest, but he had not
told police that he killed his family.” Furthermore, the state
court determined that Coulson failed to demonstrate that the
result of the proceeding would have been different if counsel had
objected to the questions by the State.
In Doyle, the Supreme Court held that the Due Process Clause
prohibits the government from using a defendant’s post-arrest,
post-Miranda silence to create an inference of guilt. See Doyle,
426 U.S. at 617-1821; see also United States v. Garcia-Flores,
21
The Supreme Court explained why this prohibition is
necessary:
Despite the importance of cross-examination, we
have concluded that the Miranda decision compels
rejection of the State’s position. The warnings
mandated by that case, as a prophylactic means of
safeguarding Fifth Amendment rights, require that a
person taken into custody be advised immediately that
he has the right to remain silent, that anything he
says may be used against him, and that he has a right
to retained or appointed counsel before submitting to
interrogation. Silence in the wake of these warnings
may be nothing more than the arrestee’s exercise of
36
246 F.3d 451, 455 (5th Cir. 2001).22 Doyle does not apply,
however, “to cross-examination that merely inquires into prior
inconsistent statements.” Anderson v. Charles, 447 U.S. 404, 408
(1980) (per curiam). This is so because “[s]uch questioning
makes no unfair use of silence, because a defendant who
voluntarily speaks after receiving Miranda warning has not been
induced to remain silent.” Id.As the state habeas court found, Coulson “voluntarily spoke”
to the arresting officers after being placed in the van and read
his Miranda warnings. However, the fact that Coulson spoke to
the police, without more, does not mean that Coulson’s silence
these Miranda rights. Thus, every post-arrest silence
is insolubly ambiguous because of what the State is
required to advise the person arrested. Moreover,
while it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives
the warnings. In such circumstances, it would be
fundamentally unfair and a deprivation of due process
to allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.
Doyle, 426 U.S. at 617-18 (footnotes and citations omitted).
22
In United States v. Shaw, this court recognized that the
Doyle standard is “strict.” See 701 F.2d 367, 382 (5th Cir.
1983). Moreover, we have repeatedly observed that “virtually any
description of a defendant’s silence following arrest and a
Miranda warning will constitute a Doyle violation.” Id.; see
also United States v. Rodriguez, 43 F.3d 117, 121 (5th Cir.
1995); United States v. Pennington, 20 F.3d 593, 599 (5th Cir.
1994); United States v. Laury, 985 F.2d 1293, 1303 (5th Cir.
1993); United States v. Blankenship, 746 F.2d 233, 238 (5th Cir.
1984). However, although this court has continuously professed
this belief, we have qualified it by stating that “a prosecutor’s
comments must be viewed in context.” Pennington, 20 F.3d at 599;
see also Laury, 985 F.2d at 1303; Blankenship, 746 F.2d at 238.
37
was automatically admissible. See Pitts v. Anderson, 122 F.3d
275, 280 (5th Cir. 1997) (stating that this rule “does not mean
that anytime a defendant makes a post-Miranda statement the
prosecution has carte blanche to use the defendant’s silence to
impeach him”); United States v. Pennington, 20 F.3d 593, 599 (5th
Cir. 1994) (“[T]he defendant’s willingness to give some
statements after arrest does not give the prosecutor the right to
impeach him by commenting on what he did not say.”). Instead, to
determine whether a Doyle violation occurred at trial, this court
applies two alternative tests. See United States v. Shaw, 701
F.2d 367, 381 (5th Cir. 1983). Pursuant to these tests, a court
entertaining a Doyle claim must determine (1) “whether the
[prosecutor’s] ‘manifest intent’ was to comment on the
defendant’s silence” or, alternatively, (2) “whether the
character of the remark was such that the jury would ‘naturally
and necessarily’ construe it as a comment on the defendant’s
silence.” Id.; see also United States v. Laury, 985 F.2d 1293,
1303 (5th Cir. 1993); Pennington, 20 F.3d at 599.
The district court concluded that the prosecutor’s intent in
asking each time whether Coulson denied killing his family was
not to focus on Coulson’s right to remain silent, but to focus on
“why at arrest he admitted to the murders and failed to deny
killing his family, but at trial he asserted clear denials.”
Because it concluded that the prosecutor intended only to impeach
Coulson, the court determined that there was no Doyle violation.
38
As we explain below, while we differ somewhat from the district
court in our approach to some of the alleged Doyle errors, we
cannot say that the state habeas court applied Strickland in an
objectively unreasonable manner.
First, we do agree with the district court that the third
exchange between the prosecutor and Coulson,23 if taken in
context, could qualify as an attempt to impeach Coulson on his
prior inconsistent statements to the police. In that exchange,
the prosecutor appears to be attempting to demonstrate that
Coulson’s testimony at trial — that he was at the Town and
Country Mall at the time of the murders — was inconsistent with
his prior statements to the police that he and Althaus were out
of town at the farm. If Coulson had actually gone to the mall,
instead of the farm, he arguably should have told the police upon
23
The third exchange between the State and Coulson went as
follows:
Q Now, if your alibi story wasn’t true, that still didn’t
make you guilty, did it?
A Didn’t make me what?
Q Didn’t make you guilty, did it?
A Guilty of lying to the police about my alibi story,
yes, sir.
Q And of course, you never said anything to the
police officers when they arrested you about,
“Look, all I did was lie about the alibi. I had
nothing to do with killing my parents.” You never
said that?
Q No, sir.
39
his arrest. Therefore, the prosecution’s questions could have
been “designed to highlight the inconsistenc[ies]” between
Coulson’s alibi and his trial testimony. See Pitts, 122 F.3d at
282.
However, in the first two instances that the prosecution
questioned Coulson regarding whether he denied killing his
family,24 the questions were neither preceded nor followed by any
reference to any prior inconsistent statements or admissions made
by Coulson in the police van. In simple terms, the questions
came “out of the blue.” It is, therefore, less clear that these
questions did not result in a Doyle violation.
Even if we assume arguendo that a Doyle violation occurred
in connection with the first two statements and that counsel’s
failure to object to the Doyle violation constituted performance
sufficiently deficient to violate Strickland (a conclusion we do
not make here), we still must determine whether Coulson was
24
Specifically, the following cross examination took place
between the State and Coulson:
(1) Q At any time that you talked to the police after you
were arrested, did you deny that you killed your
family.
A No, sir. I don’t believe I mentioned anything at
all about anything.
(2) Q Now, did you ever deny to the police officers that
you killed your parents?
A No, sir. I didn’t say anything.
40
prejudiced thereby. We conclude that the state habeas court did
not make an unreasonable application of federal law when it
decided that Coulson failed to demonstrate that the result of the
proceeding would have been different if counsel had objected to
the questions by the State. It is evident that, in making its
determination of lack of prejudice, the state habeas court
considered the totality of the evidence that was before the jury.
As demonstrated supra in Part IV.B, the evidence of Coulson’s
guilt, although circumstantial, was compelling, and it is clear
that had trial counsel objected to the questions, there is no
reasonable probability that the jury verdict would have been
different. See Strickland, 466 U.S. at 694; (Terry) Williams,
529 U.S. at 391. Accordingly, the state habeas court did not
apply Strickland in an objectively unreasonable manner, and the
district court was correct in granting summary judgment in favor
of Johnson on Coulson’s Doyle claim.
C. Limiting-Instruction Claim
Because the district court refused to grant Coulson a COA on
his limiting-instruction claim, Coulson must first obtain a COA
before we can review the district court’s denial of habeas
relief. See 28 U.S.C. § 2253(c)(1)(A) (Supp. 2001); see also
Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1250 (2001). Therefore, Coulson has applied
to this court for a COA on his limiting-instruction claim. For
the following reasons, we deny Coulson’s request.
41
1. Standard of Review for a COA
Under AEDPA, we are precluded from issuing a COA to Coulson
unless he makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Kutzner
v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001). “This standard
‘includes showing 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.’”
Dowthitt, 230 F.3d at 740 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). If the district court has denied a petition
for a writ of habeas corpus on substantive grounds, Coulson must
demonstrate that “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.” Kutzner, 242 F.3d at 608 (internal quotations omitted)
(quoting Slack, 529 U.S. at 484). Furthermore, “the
determination of whether a COA should issue must be made by
viewing the petitioner’s argument through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes
v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dism’d by
121 S. Ct. 902 (2001); see also Kutzner, 242 F.3d at 608.
2. Coulson Has Failed to Make a Substantial Showing of
the Denial of a Constitutional Right with Respect
to His Limiting-Instruction Claim
42
As discussed supra in Part VI.B, after Coulson was arrested,
he was placed in a police van and was questioned by police. At
Coulson’s trial, the State introduced in rebuttal the testimony
of two of the arresting officers who rode with Coulson in the
back of the van to the station. Those officers testified that,
en route to the police station, Coulson made several
incriminating statements and confessed to killing his family. At
no point during this rebuttal testimony did trial counsel seek a
limiting instruction to inform the jury that the testimony should
have been considered only for its impeachment value. Coulson
contends that trial counsel provided deficient performance when
they failed to ask for such a limiting instruction at trial.
Under Texas law, “[n]o oral . . . statement of an accused
made as a result of custodial interrogation shall be admissible
against the accused in a criminal proceeding unless” the
statement is recorded under certain delineated circumstances.
See TEX. CODE. CRIM. PROC. art. 38.22, § 3 (Vernon 1979 & Supp.
2001). However, this rule does not preclude “the admission . . .
of a voluntary statement, whether or not the result of custodial
interrogation, that has a bearing upon the credibility of the
accused as a witness[.]” See id. § 5. If such a statement is
offered by the State against the defendant, the defendant is
entitled to a limiting instruction that the jury may only
consider the evidence for its impeachment value. See TEX. R.
CRIM. EVID. 105(a); cf. TEX. R. EVID. 105(a).
43
The state habeas court stated in its findings of fact that
trial counsel claimed in their affidavits that “they did not
request a limiting instruction because the oral statement was
‘probably admissible as an admission against penal interest’ and
because they did not think they were entitled to such an
instruction.” Furthermore, the state court concluded as a matter
of law that Coulson “fail[ed] to show that the outcome of the
proceeding would have been different if counsel had requested and
received a limiting instruction concerning [Coulson]’s oral
statement.” The state habeas court also concluded that Coulson’s
“conviction is supported by sufficient evidence, notwithstanding
[his] oral admission; [Coulson]’s testimony itself create[d] a
credibility issue between [Coulson] and many of the State’s
witness; and, Jared Althaus’ testimony as an accomplice [was]
corroborated by extensive evidence other than [Coulson]’s oral
statement.” (Emphasis added).
The district court25 recognized that the state habeas court
“referred to an improper standard when it noted that sufficient
evidence supported [Coulson]’s conviction without the police
25
Instead of focusing on whether counsel’s performance was
deficient, however, the district court determined that because
the “thrust” of the state habeas court’s decision focused on
potential prejudice, it “need[ed] only [to] examine the effect of
failing to seek a limiting instruction.” See Armstead v. Scott,
37 F.3d 202, 210 (5th Cir. 1994) (“A court need not address both
components of the inquiry if the defendant makes an insufficient
showing on one.”).
44
officers’ testimony of [Coulson]’s admissions to them.” This is
because the Strickland test, which is “identical to” the Brady
standard, is not a sufficiency of the evidence test. See Felder
v. Johnson, 180 F.3d 206, 214 (5th Cir.), cert. denied, 528 U.S.
1067 (1999); see also Martin v. Cain, 246 F.3d 471, 477 (5th Cir.
2001); East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997).
Nonetheless, the district court observed that the state habeas
court “did not end its inquiry there” and that it analyzed the
admission in the context of the other testimony presented at
trial. The district court held that the state court’s decision
could not be said to involve an unreasonable application of
federal law because “it is evident that the state habeas court
looked at the entire record and found that, because of the other
evidence presented to the jury, the absence of a limiting
instruction regarding [Coulson]’s admissions to the police did
not create a reasonable probability that the result of the
proceedings would have been different.”26 Even with this
26
The district court considered the state habeas court’s
findings of fact and stated:
Specifically, in the portion of the findings of fact
devoted to the limiting instruction issue[,] the state
habeas court recognized that other witnesses testified
that [Coulson] had made remarks prior to the murders
about his family dying so that he could receive his
inheritance, that [Coulson] had previously threatened
(possibly in jest) to kill his family, and that he
demeaned various family members in conversations with
others. The court also found that [Coulson] had made
incriminating statements to [his girlfriend] Jerri
Moore, Kenneth Smith, and Jared Althaus. The state
45
conclusion, the district court also observed that, assuming the
state court had employed the wrong standard, the district court
“independently concludes that the evidence . . . establishes that
Coulson has not satisfied the prejudice prong under Strickland.”
Coulson argues here that “[w]hile both [the state habeas
court and the district court] purported to review the entirety of
the record of Coulson’s trial, each court was content to review
all of the evidence in the light most favorable to the verdict,
just as a reviewing court is directed to do when it conducts an
analysis for legal sufficiency.” Coulson contends that this type
of analysis constitutes an “unreasonable application” of
Strickland to the facts of his case, and therefore, he should be
afforded habeas relief. We disagree.
It is true that the state habeas court concluded that there
was “sufficient evidence” to support Coulson’s conviction.
Furthermore, we agree with both Coulson and the district court
that this is an improper standard under Strickland. This court
has held that “the standard for prejudice under Strickland is
‘identical to’ the standard for materiality under Brady.”
Felder, 180 F.3d at 214 (quoting Johnson v. Scott, 68 F.3d 106,
109-10 (5th Cir. 1995)); see also Martin, 246 F.3d at 477. And
habeas court also noted that in [Coulson]’s testimony
he claimed that the prior statements concerning his
admissions were all fabrications.
(Citations to record omitted).
46
“[t]he Supreme Court has warned that the Brady materiality
analysis ‘is not a sufficiency of evidence test.’” East, 123
F.3d at 239 (quoting Kyles v. Whitley, 514 U.S. 419, 434-35
(1995)). Even so, for the reasons below, we agree with the
district court that the state habeas court’s discussion of
sufficiency of the evidence was not fatal to the state habeas
court’s decision.
In determining whether there was prejudice, a reviewing
court is required to consider the totality of the evidence before
the jury. See Johnson v. Scott, 68 F.3d 106, 109 (5th Cir.
1995). Our review of the state habeas court’s findings of fact
and conclusions of law demonstrates that the state court
considered the entirety of the evidence adduced at trial to hold
that Coulson “fail[ed] to show that the outcome of the proceeding
would have been different if counsel had requested and received a
limiting instruction.” Considering that the state habeas court
evaluated the totality of the evidence before the jury in making
its conclusion, we conclude that this was not an objectively
unreasonable application of federal law. See 28 U.S.C.
§ 2254(d)(1). Accordingly, Coulson has failed to demonstrate
that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,”
Kutzner, 242 F.3d at 608, and we are precluded from granting a
47
COA to Coulson because he has not made “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).27
VII. CONCLUSION
For the foregoing reasons, the district court’s denial of
habeas relief is AFFIRMED, and Coulson’s application for a
certificate of appealability on his limiting-instruction claim is
DENIED.
27
Because we have determined that Coulson has failed to
demonstrate prejudice, we need not address Strickland’s deficient
performance prong. See Armstead, 37 F.3d at 210.
48