Filed: Jul. 08, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 7, 2004 _ Charles R. Fulbruge III No. 03-41131 Clerk _ RICHARD CARTWRIGHT, Petitioner - Appellant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. _ Appeal from the United States District Court for the Southern District of Texas USDC No. C-01-CV-474 _ Before JOLLY, JONES, and WIENER, Circuit Judges.
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 7, 2004 _ Charles R. Fulbruge III No. 03-41131 Clerk _ RICHARD CARTWRIGHT, Petitioner - Appellant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. _ Appeal from the United States District Court for the Southern District of Texas USDC No. C-01-CV-474 _ Before JOLLY, JONES, and WIENER, Circuit Judges. E..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 7, 2004
_____________________
Charles R. Fulbruge III
No. 03-41131 Clerk
_____________________
RICHARD CARTWRIGHT,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-01-CV-474
_________________________________________________________________
Before JOLLY, JONES, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:1
Richard Cartwright was convicted of capital murder in Texas
and sentenced to death. He requests a certificate of appealability
(“COA”) to appeal the district court’s denial of federal habeas
relief on his claims that his trial counsel rendered ineffective
assistance, and that he was denied a fair and impartial jury and
due process. Because Cartwright has failed to make a substantial
showing of the denial of a constitutional right, we DENY a COA for
each of his claims.
I
1
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this opinion should not be published and is not precedent except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.
Cartwright and two other men were indicted for the capital
murder of a man they lured to the waterfront area of Corpus
Christi, Texas, by posing as homosexuals. After robbing the
victim, one of the other men stabbed him and cut his throat, and
then Cartwright shot him in the back. The medical examiner
testified that the knife wounds were not fatal, and that the
gunshot wound was the cause of death. The prosecution relied
heavily on the testimony of Cartwright’s accomplices, corroborated
by other circumstantial evidence of his guilt.
The Texas Court of Criminal Appeals affirmed Cartwright’s
conviction and sentence on direct appeal. Cartwright v. State, No.
72,786 (Tex. Crim. App. May 5, 1999) (unpublished). The Supreme
Court denied certiorari. Cartwright v. Texas, 528 U.S. 972 (1999).
Cartwright filed an application for state habeas relief on July 16,
1998. The Texas Court of Criminal Appeals adopted the trial
court’s findings and conclusions and denied relief on October 3,
2001. Ex parte Cartwright, No. 49,598-01 (Tex. Crim. App. 2001).
Cartwright filed a federal habeas petition on September 26,
2002. The district court denied relief without a hearing and
denied Cartwright’s request for a COA on July 14, 2003. Cartwright
filed a timely notice of appeal and requested a COA from this
court.
2
II
To obtain a COA, Cartwright must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003); Slack v.
McDaniel,
529 U.S. 473, 483 (2000). To make such a showing, he
must demonstrate 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, 123 S. Ct. at
1039 (quoting
Slack, 529 U.S. at 484). Because the district court
denied relief on the merits, rather than on procedural grounds,
Cartwright “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable
or wrong.”
Slack, 529 U.S. at 484. In determining whether to
grant a COA, our examination is limited “to a threshold inquiry
into the underlying merit of [Cartwright’s] claims.”
Miller-El,
123 S. Ct. at 1034. “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of
the claims.”
Id. at 1039. Instead, the determination is based on
“an overview of the claims in the habeas petition and a general
assessment of their merits.”
Id. “Any doubt regarding whether to
grant a COA is resolved in favor of the petitioner, and the
severity of the penalty may be considered in making this
determination.” Miniel v. Cockrell,
339 F.3d 331, 336 (5th Cir.
2003).
3
III
Cartwright requests a COA for his claims that his trial
counsel rendered ineffective assistance, that he was denied a fair
and impartial jury, and that he was deprived of due process. We
discuss each claim in turn.
A
Ineffective Assistance of Counsel
Cartwright requests a COA for his claims that his trial
counsel rendered ineffective assistance by (1) failing to use all
peremptory strikes during jury selection, (2) failing to object to
the selection of jurors in Cartwright’s absence, (3) failing to
object to the prosecutor’s improper attack on the honesty of
defense counsel, and striking at Cartwright over the shoulders of
defense counsel,2 and (4) failing to object to the prosecutor’s
improper argument at the sentencing phase of trial.
To prove ineffective assistance of counsel, a habeas
petitioner must show that his lawyer’s performance was deficient
and that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
deficient performance, the petitioner must show that counsel’s
actions “fell below an objective standard of reasonableness.”
Id.
2
In Texas, “[w]hen a prosecutor makes uninvited and
unsubstantiated accusations of improper conduct directed toward a
defendant’s attorney, in an attempt to prejudice the jury against
the defendant, courts refer to this as striking a defendant over
the shoulders of his counsel.” Phillips v. State,
130 S.W.3d 343,
355 (Tex. App. -- Houston 2004).
4
at 688. “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. at 690. To demonstrate
prejudice, the petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at 694.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Id.
1
Peremptory Strikes
Cartwright’s trial counsel used only six of the fifteen
peremptory strikes allowed under state law. Cartwright argues that
this constitutes ineffective assistance, because it resulted in the
waiver of his claim that the trial court improperly denied his
challenge for cause to prospective juror Quiroz, who was removed
with a peremptory strike. He also contends that counsel rendered
ineffective assistance by failing to use a peremptory strike to
remove juror Brown, because of his “pro-death” beliefs. Finally,
he argues that counsel’s use of so few peremptory strikes resulted
in the denial of an impartial jury.
Cartwright’s lead trial counsel submitted an affidavit in the
state habeas proceeding and testified at the state habeas
evidentiary hearing. He stated that he used peremptory strikes
only when he felt that a juror was unacceptable, because he had no
ability to weigh the acceptability of the remaining veniremembers
5
against the one being examined, and did not want to risk having to
accept an unfavorable juror after his strikes were exhausted. He
stated that Cartwright had consistently expressed the desire to
receive either an acquittal or a death sentence. Therefore, his
primary focus in jury selection was choosing jurors who indicated
that they would be skeptical of accomplice testimony. He stated
that Brown satisfied that criterion, and also was open-minded and
receptive to the concept of reasonable doubt.
The state habeas court found that trial counsel used
peremptory strikes to remove unacceptable jurors and concluded that
counsel did not render ineffective assistance by failing to use all
of the peremptory strikes before the jury was selected.
The district court held that the state court’s decision was
not contrary to, or an unreasonable application of clearly
established federal law. The district court observed that the use
of a peremptory strike remedied any harm from the trial court’s
failure to remove Quiroz for cause. It also stated that counsel’s
decision not to strike Brown was based on legitimate trial
strategy, because it was consistent with counsel’s stated intention
of selecting jurors who would be skeptical of accomplice testimony.
Even assuming that defense counsel should have removed Brown with
a peremptory strike, the district court noted that Cartwright could
not identify eight other jurors who should have been struck
peremptorily. Therefore, Cartwright was not deprived of his right
6
to an impartial jury as the result of his counsel’s failure to
exhaust the peremptory strikes.
Reasonable jurists would not find the district court’s
assessment of this claim debatable or wrong. We therefore deny a
COA.
2
Selection of Jurors in Cartwright’s Absence
On the fourth day of individual voir dire, after six jurors
had been selected, defense counsel informed the court that
Cartwright wanted to waive his right to be present because he was
in pain after having had a tooth extracted. When the court asked
Cartwright if he objected to the court proceeding in his absence,
Cartwright shook his head negatively. When the prosecutor
questioned whether there was an affirmative waiver on the record,
the court asked Cartwright again whether he had any objection to
the court proceeding in his absence, and Cartwright replied, “No,
I don’t, Your Honor.” Four prospective jurors were questioned in
his absence, two of whom were selected to serve on the jury (one of
them as foreperson).
Cartwright argues that counsel rendered ineffective assistance
by failing to object to the selection of jurors in his absence. He
claims that this prejudiced him because the prosecutor commented
unfavorably on his absence during voir dire. He also argues that
his appellate counsel rendered ineffective assistance by failing to
7
argue on appeal that this violated his non-waivable right, under
state law, to be present during jury selection.
Cartwright submitted an affidavit in the state habeas
proceeding in which he stated that he went along with his
attorney’s request because he did not know what else to do, but
that he thought that only one prospective juror would be questioned
in his absence, and that he did not agree for the others to be
questioned and selected while he was not present. Cartwright’s
counsel stated in his affidavit that Cartwright asked to be excused
and did not wish to delay the voir dire. Counsel stated that the
next day, when he discussed with Cartwright the two jurors selected
while he was absent, Cartwright did not seem to have any problem
with those jurors or with the number of jurors selected. At the
state habeas evidentiary hearing, counsel testified that he would
have asked for a continuance if Cartwright had requested it.
The state habeas court found that defense counsel did not
pressure Cartwright to refrain from requesting a recess; that
three3 jurors were selected in Cartwright’s absence; and that
Cartwright did not request that Strong and Bowers (the two jurors
selected in his absence) be re-examined. The state habeas court
concluded that Cartwright did not knowingly waive his right to be
3
Finzel, identified by the state habeas court as the third
juror selected in Cartwright’s absence, was actually selected the
day before Cartwright asked to be excused. Our review of the
record confirms that only two jurors -- Bowers and Strong -- were
selected while Cartwright was not present.
8
present during the voir dire; that he had not shown that his
opportunity to defend was impaired or diminished by his absence;
and that defense counsel did not render ineffective assistance by
consenting to his absence.
The district court noted that Cartwright did not allege that
he would not have selected those same jurors had he been present;
that he did not point to anything that would make those two jurors
objectionable; and that he testified in the state evidentiary
hearing that he did not have a problem with anything that they
said, but only objected to the fact that they were selected while
he was absent from the courtroom. The district court held that
Cartwright’s failure to allege any actual harm from the selection
of jurors in his absence was fatal to his ineffective assistance
claim. The district court also held that Cartwright failed to
demonstrate prejudice from appellate counsel’s failure to raise the
claim on appeal.
Reasonable jurists would not find debatable or wrong the
district court’s conclusion that Cartwright failed to allege, much
less demonstrate, prejudice. We therefore deny a COA for this
claim.
3
Prosecutorial Misconduct
By way of background, there was evidence that Cartwright’s
accomplices, Hagood and Overstreet, had known each other for
several years prior to the murder, but they first met Cartwright
9
less than a week before the murder. There was also evidence that
the gun belonged to either Hagood or Overstreet, but the State’s
theory was that Overstreet stabbed the victim and Cartwright shot
him, while Hagood searched the victim’s car. Cartwright called Dr.
Rupp as a witness during the guilt-innocence phase of the trial.
Rupp, who previously had served as a medical examiner, testified
that he had reviewed the autopsy reports and photographs of the
crime scene; that he had not reviewed all of the police reports and
witness statements; that in his opinion, one person stabbed the
victim and another person shot him; that of the three persons
involved and the two weapons involved, the two people who knew each
other were probably the assailants; and that usually the owner of
a gun does the shooting.
During closing argument at the guilt-innocence phase, the
prosecutor argued, without objection by defense counsel:
... Dr. Rupp would change his mind any time
you asked him a different way, the question.
I mean, isn’t it kind of funny how the defense
lawyer says, Dr. Rupp, I wanna bring you up
here as an expert, and here I’m giving you the
autopsy report and the pictures, and the
defense neglects to give him any other
information? Not one scrap of evidence. Not
one statement from a police officer or report
from a police officer or identification
officer, not one statement from a witness, not
even what happened in court. Remember I said,
“Dr. Rupp, if you heard that somebody said
that they heard this defendant admit to the
crime, would that change your mind,” he goes,
“Sure it would change my mind. Sure it would
change my mind.” The defense lawyer is trying
to blindside you by putting on this so-called
expert on human behavior with not enough
10
information -- not enough information. And
every time I talked to Dr. Rupp, he kept
saying, I wasn’t asked that. I wasn’t asked
that. I was only asked this. Well, don’t you
think that’s kind of important, Dr. Rupp, to
know the whole story? You folks got the whole
story. How come he didn’t? How come the
defense lawyer didn’t give him -- have the
courtesy to give him all the information? A
little sneaky, isn’t it? Little sneaky.
Cartwright argues that his trial counsel rendered ineffective
assistance by failing to object to the above-quoted argument
attacking the veracity of defense counsel.
In his affidavit presented to the state habeas court, defense
counsel stated that, although he felt that the prosecutor’s
comments about him being “a little sneaky” were improper, he did
not feel that they were sufficiently damaging to object. He also
did not want to object and thereby call the remarks to the
attention of the jury.
The state habeas court found that the prosecutor’s reference
to defense counsel as being “sneaky” was improper, but that the
comment did not harm Cartwright’s defense, and that counsel’s
decision not to object was reasonable trial strategy.
The district court held that the state court’s findings were
presumptively correct and that Cartwright had not rebutted them
with clear and convincing evidence. The district court agreed that
the prosecutor’s comment about defense counsel being “sneaky” was
improper, but concluded that counsel made a legitimate strategic
11
decision not to object, and that the comment did not infect the
entire trial with undue unfairness.
Reasonable jurists would not conclude that the district
court’s assessment of this claim was debatable or wrong.
Accordingly, we deny a COA.
4
Prosecutorial Argument
During the punishment phase of trial, the prosecutor argued,
without objection by defense counsel:
Imagine what [the victim] was thinking.
First, he’s -- the weapons are pulled on him
and then he is searched for his valuable
possessions, then Kelly Overstreet, behind
him, slits his neck. We don’t know exactly
what happened. We can maybe guess he tried to
get away and Kelly stabs him in the back. The
medical evidence was that those probably
weren’t, you know, all that great of a blow.
It wasn’t a fatal blow. So you can imagine,
he’s probably in a lot of pain, he’s
suffering, but he is not down for the count
right then. You can imagine his mind’s
probably still working and imagine the fear
that he felt. Then when he’s doing his best
just to survive the situation, then he’s shot
in the back. That’s the consideration
[Cartwright] and his two buddies gave to [the
victim]. I want you to consider these special
issues, remember the type of consideration he
gave [the victim].
Cartwright argues that counsel rendered ineffective assistance
by failing to object to this argument, which he characterizes as
urging the jury to disregard the special issues in favor of giving
Cartwright the same type of consideration he gave the victim --
12
telling the jury to take Cartwright’s life because he took the life
of the victim.
The state habeas court did not agree with Cartwright’s
interpretation of the prosecutor’s argument. Instead, it found
that the prosecutor did not urge the jurors to disregard the
special issues. It therefore concluded that counsel did not render
ineffective assistance by failing to object to the argument.
The district court held that the state habeas court’s
rejection of this claim was not contrary to or an unreasonable
application of federal law, because Cartwright failed to show that
the comments encouraged the jury to set aside the special issues
and, therefore, counsel did not render deficient performance by
failing to object. The district court concluded that the
prosecutor did not urge the jurors to disregard the special issues,
but instead focused the jury’s attention on a traditional factor
for determining future dangerousness -- the vicious and heartless
attitude of the killers and their lack of concern for the victim.
Reasonable jurists would not find debatable or wrong the
district court’s interpretation of the prosecutor’s argument and
its conclusion that Cartwright’s counsel did not render ineffective
assistance by failing to object to the argument. We therefore deny
a COA for this claim.
13
B
Jury Selection
Cartwright requests a COA for his claim that he was denied a
fair and impartial jury by the trial court’s improper granting of
the State’s challenge for cause to prospective juror Luis.
Cartwright argues that the State failed to establish that Luis was
unwilling to set aside his own beliefs temporarily in deference to
the rule of law. According to Cartwright, Luis never stated that
his personal or religious beliefs regarding the death penalty would
interfere with his sitting as a juror. The most he said was “I
don’t think I could do it,” or “I wish I could tell you I could do
it, but I don’t think I could.” In response to the prosecutor’s
question, “would you have a hard time answering those questions
that way, knowing that he’s gonna get a death sentence,” Luis
responded, “Probably will.” Cartwright therefore contends that the
State failed to establish that Luis’s views would “prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Wainwright v.
Witt, 469 U.S. 412, 424 (1985).
The State argues that Luis’s answers to questions on voir dire
demonstrate that his views would have impaired or substantially
prevented him from answering the special punishment issues
truthfully. Although Luis agreed with the death penalty in the
abstract, he could not personally assess death as punishment for a
capital office. Questions about his ability to follow the law were
14
answered with “might” and “maybe.” At times when he indicated he
could follow the law and answer the special issues truthfully, he
followed his answers with qualifiers such as “but,” “still,” “I
think,” and “probably.” When asked by defense counsel whether he
would lie and answer the special issues in such a way that would
prevent Cartwright from getting the death penalty, his answer was
a qualified, “I don’t think so.” The trial court noted Luis’s
ambivalence in granting the State’s challenge for cause.
The state habeas court concluded that, even if the trial court
erred in granting the State’s challenge for cause to Luis,
Cartwright failed to show that the error deprived him of a lawfully
constituted jury.
The district court held that the record supported the trial
court’s finding that Luis would be unable to answer the special
issues truthfully because of his inability to set aside his
personal and religious beliefs. The district court observed that,
although some of Luis’s statements indicated that he could answer
the special issues truthfully based on the evidence, he
consistently used qualifiers and his testimony, as a whole, was
equivocal. The district court pointed to Luis’s testimony that his
religious beliefs prevented his involvement in a process that would
take a human life; that his participation in such a process would
cause him mental and physical stress; that he had already been
taking medication for ulcers he suffered from the stress of jury
selection; and that he was worried that his religious convictions
15
would disrupt the jury deliberations. The district court concluded
that, as a whole, Luis’s statements showed that his religious
convictions would substantially impair his ability to answer the
special issues. The district court therefore concluded that the
state court’s decision was not contrary to, or an unreasonable
application of, clearly established federal law.
Reasonable jurists would not find the district court’s
assessment of this claim debatable or wrong. We therefore deny a
COA.
C
Due Process
Cartwright seeks a COA for his claims that the trial court
denied him due process by (1) allowing two jurors to be selected in
his absence, (2) allowing the prosecutor to improperly attack the
honesty of defense counsel and to improperly strike at him over the
shoulders of defense counsel, (3) allowing the prosecutor to
improperly urge the jurors to disregard the death penalty special
issues, and (4) denying his requested jury instruction regarding
parole eligibility.
1
Jury Selection, Prosecutorial Misconduct
The first three due process sub-claims have already been
discussed, in connection with Cartwright’s request for a COA on his
16
ineffective assistance claims.4 We deny a COA for these due
process claims for essentially the same reasons. Reasonable
jurists would not find debatable the district court’s conclusion
that Cartwright failed to demonstrate that he did not get a fair
trial as a result of the selection of two jurors while he was
absent from the courtroom, or as a result of the prosecutor’s
closing arguments regarding the honesty of defense counsel and the
special issues.
2
Parole Eligibility Instruction
During deliberations in the sentencing phase, the jury sent a
note to the trial judge asking, “What does ‘life in prison’ mean.
Is parole possible?” The trial judge responded that the jury had
received all of the instructions applicable to the case and denied
Cartwright’s request to instruct the jury that he would not be
eligible for parole until after he had served forty years in
prison.
Cartwright argues that the trial judge’s refusal to instruct
the jury on parole eligibility prevented the jury from having an
accurate understanding of Texas law and violated his right to equal
protection. He contends that, if the trial judge had allowed the
instruction, he could have provided evidence that he would not be
4
The State’s argument that Cartwright’s due process claim of
prosecutorial misconduct was not raised in the district court is
belied by the district court’s opinion addressing and rejecting
that claim.
17
a future danger to society if released on parole at age 66. He
contends further that his equal protection rights were violated
because of the Texas practice of instructing jurors on parole in
non-capital cases, but not in capital cases.
On direct appeal, the Texas Court of Criminal Appeals rejected
Cartwright’s argument that the trial court violated due process by
failing to instruct the jury on parole eligibility. The court
noted that, at the hearing on Cartwright’s motion for new trial,
seven of the twelve jurors were questioned regarding parole. Each
of them testified that, although there was an initial curiosity as
to the length of a life sentence, once the trial court responded to
their note, there was no further mention of the topic; each stated
that the jury answered the special issues based solely on the
evidence before them; and no juror testified that he or she would
have answered the special issues differently had they been
instructed on parole law. The state habeas court denied relief on
this claim because the issues raised by it were addressed on direct
appeal and Cartwright made no claim of new facts relating to the
claim.
The district court held that, because this claim is foreclosed
by clear precedent, the state court’s rejection of it was not
contrary to or an unreasonable application of federal law. See
Ramdass v. Angelone, 530 U.S. 156, 169 (2000) (parole eligibility
instruction required “only ... [in] instances where, as a legal
matter, there is no possibility of parole if the jury decides the
18
appropriate sentence is life in prison”); see also Elizalde v.
Dretke, 362 F.3d 323, 332-33 (5th Cir. 2004) (collecting cases
holding that Constitution does not require Texas trial courts to
instruct juries as to the meaning of life in prison because the
defendant would not, if sentenced to life imprisonment, be
ineligible for parole).
In the light of this clear precedent, reasonable jurists would
not find the district court’s assessment of this claim debatable or
wrong. Accordingly, Cartwright is not entitled to a COA.
III
With respect to each of his claims, Cartwright has not made “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). We therefore DENY his request for a COA to
appeal the district court’s denial of federal habeas relief.
COA DENIED.
19
