June 2, 2011 - DNA ISSUE by Justice4Hank

DNA  ISSUE

BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT & APPENDIX  JUNE 2, 2011

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION HENRY WATKINS SKINNER,

) ) Plaintiff, ) ) v. ) ) LYNN SWITZER, District Attorney ) 31st Judicial District of Texas, ) ) Defendant. )

Civil Action No. 2:09-CV-281-J-BB

BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy of Defense Litigation

JONATHAN F. MITCHELL Solicitor General State Bar No. 24075463 ARTHUR C. D’ANDREA Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1695 Fax: (512) 474-2697 COUNSEL FOR DEFENDANT

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TABLE OF CONTENTS Index of Authorities ...................................................................................................... iii I.

Skinnerâ&#x20AC;&#x2122;s Claims Against Switzer Are Barred By the Doctrine of Claim Preclusion. .................................................................................... 4

II.

Skinner Cannot Establish That Switzer Violated His Constitutional Rights When He Had The Opportunity to Conduct DNA Testing During His Trial................................................ 11

III.

Skinner Cannot Establish That Switzer Violated His Constitutional Rights When DNA Testing Will Not Exonerate Him ......................................................................................................... 20

Conclusion .................................................................................................................... 23 Certificate of Service.................................................................................................... 24

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INDEX OF AUTHORITIES

Cases Armstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996) ....................................................................................... 4 Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990) .................................................................... 8 Coleman v. Thompson, 501 U.S. 722 (1991).................................................................................................. 16 Curry v. State, 186 S.W.3d 39 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ................................ 6 Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308 (2009).............................................................................. 1, 13, 19, 21 Fay v. Noia, 372 U.S. 391 (1963)............................................................................................ 16, 17 Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50 (Tex. 2006) ............................................................................... 8, 9, 10 Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78 (Tex. 2008) ................................................................................... 4, 10 Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984).................................................................................................... 10 People v. Rathbun, 21 Wend. 509 (N.Y. Sup. Ct. 1839) ......................................................................... 16 Reger v. State, 222 S.W.3d 510 (Tex. App.—Fort Worth 2007, pet. ref’d.)....................................... 6 Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008), aff’d, 576 F.3d 214 (5th Cir. 2009) ............ 1, 7, 11, 12 Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808 (N.D. Tex. Feb. 22, 2007) ............. 1, 11, 12, 22 iii

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Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997) .................................................................. 22 Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003) .................................................................... 8 Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) .................................................... 5, 8, 11, 12 State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002) ...................................................................... 6 Wainwright v. Sykes, 433 U.S. 72 (1977)........................................................................................ 14, 16, 17

Statutes, Rules, and Constitutional Provisions U.S. CONST. art. VI, cl. 2 ................................................................................................ 5 18 U.S.C. § 3600(a)(1) .................................................................................................. 18 28 U.S.C. § 2254(e)(2) .................................................................................................. 14 ALA. CODE § 15-18-200(e)(2)(b) .................................................................................... 20 ARK. CODE ANN. § 16-112-201(a) ................................................................................. 20 D.C. CODE § 22-4135(d)(1) ........................................................................................... 20 DEL. CODE ANN. tit. 11, § 4504(a)(2) ........................................................................... 20 FED. R. CIV. P. 56(c) ..................................................................................................... 21 GA. CODE ANN. § 5-5-41(c)(3)(B) .................................................................................. 20 IDAHO CODE ANN. § 19-4902(b) .................................................................................... 20 ME. REV. STAT. ANN. tit. 15, § 2138(10)(c)................................................................... 20 MINN. STAT. § 590.01(1a)(2) ......................................................................................... 20 MO. REV. STAT. § 547.035(2)(3) .................................................................................... 20 iv

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N.D. CENT. CODE ยง 29-32.1-15(1)(b) ............................................................................ 20 NEV. REV. STAT. ยง 176.0918(3)(e)................................................................................. 20 OHIO REV. CODE ANN. ยง 2953.74(B) ............................................................................. 20 42 PA. CONS. STAT. ยง 9543.1(a)(2) ................................................................................ 20 Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. ยง 2000bb et seq. ............................................................................................. 18 Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. ยง 2000cc et seq ............................................... 18 TEX. CODE CRIM. PROC. art. 64.01(a) ........................................................................... 19 TEX. CODE CRIM. PROC. art. 64.01(b)(1)......................................................................... 7 TEX. CODE CRIM. PROC. art. 64.03(a)(2)(A) .................................................................... 6 UTAH CODE ANN. ยง 78-35a-301(4) ................................................................................ 20 VA. CODE ANN. ยง 19.2-327.1(A) .................................................................................... 20 W. VA. CODE ANN. ยง 15-2B-14(f)(6)(B) ......................................................................... 20 WYO. STAT. ANN. ยง 7-12-303(d) .................................................................................... 20

Other Authorities 18B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE ยง 4412 (4th ed. 2011) .................................................................................................... 5 Bryan A. Garner, A Dictionary of Modern Legal Usage 404 (2d ed. 1995) ......................................... 15 D. Rosenberg & S. Shavell, A Model in Which Suits Are Brought for Their Nuisance Value, 5 INTโ L REV. L. & ECON. 3 (1985) ............................................................................... 3 Frank H. Easterbrook, Foreward: The Court and the Economic System, 98 HARV. L. REV 4 (1983) ........................................................................................... 4 v

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION HENRY WATKINS SKINNER, Plaintiff, v. LYNN SWITZER, District Attorney for the 31st Judicial District of Texas, Defendant.

) ) ) ) ) ) ) ) ) ) )

Civil Action No. 2:09-CV-00281

BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

DNA testing “has an unparalleled ability both to exonerate the wrongly convicted and identify the guilty.” Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2313 (2009).

It also creates new opportunities for

convicted criminals and their lawyers to abuse the legal system. This case is a paradigmatic example of that. The State of Texas gave Henry Skinner an opportunity at his trial to test the DNA evidence that he now wants tested. But Skinner and his trial attorneys made an informed, tactical decision to forego that opportunity.

See Skinner v.

Quarterman, No. 2:99-CV-0045, 2007 WL 582808, at *31 (N.D. Tex. Feb. 22, 2007); Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008), aff’d, 576 F.3d 214 (5th Cir. 2009). Skinner and his lawyers knew that the evidence could only confirm his guilt rather than exonerate him. Indeed, Skinner had offered to plead guilty to first-

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degree murder prior to trial in exchange for a life sentence.1 See Habeas Evid. Hr’g Tr. at 135; App. at 4. And Skinner’s lawyers hoped to win an acquittal by attacking the government’s investigation as shoddy and incomplete; leaving the remaining DNA evidence untested was crucial to these efforts to create doubts in the minds of jurors. The failure of Skinner’s trial strategy does not entitle him to change course in post-conviction proceedings and demand testing of the very evidence that he deliberately declined to test at trial.

And nothing in the Constitution requires

District Attorney Switzer to tolerate or encourage the gamesmanship that Skinner has displayed in this litigation, or the piecemeal litigation tactics he has deployed to delay his execution date.

The State of Texas satisfied all requirements of

constitutional due process when it offered Skinner the opportunity to test the DNA evidence at trial; Skinner forfeited that opportunity by his strategic refusal to test the evidence at that time. Even if Skinner were seeking to test DNA evidence distinct from the evidence that he declined to test at trial, District Attorney Switzer would still be entitled to summary judgment because Skinner cannot show that he might be actually innocent of the murders or that further DNA testing might exonerate him. Whatever the post-Osborne scope of an inmate’s procedural due-process right to DNA testing in state-created post-conviction procedures, the Constitution cannot possibly compel States to accommodate a convict’s demands for DNA testing absent

Although plea negotiations are often kept confidential, Skinner accused his trial lawyers of ineffective assistance in his federal habeas proceedings, waiving the attorneyclient privilege and causing his plea offer to become part of the public record. 1

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a plausible showing that the tests might exonerate him. In this case, Skinner does not even assert in his complaint or in any document filed with this Court that he is in fact innocent of these murders. And he cannot, in light of his pre-trial guilty-plea offer and the overwhelming evidence of his guilt, establish a genuine factual question that further DNA testing might exonerate him, or enable him to pursue an actual-innocence claim in state post-conviction procedures. Skinner also had opportunities, in each of the Article 64 proceedings that he initiated in state court, to present his claim that the Constitution requires Texas to accommodate his demands for additional post-conviction DNA testing. Once again, Skinner spurned these opportunities. Because Skinner could have presented his federal constitutional claim in the Article 64 proceedings but never did, the doctrine of claim preclusion forecloses him from doing so now. It is apparent that Skinner and his lawyers have brought this case as a strike suit. They know that the out-of-pocket costs to Gray County of testing the DNA are negligible, as Skinner has volunteered to pay for the testing himself, while the costs of defending this lawsuit have been far higher. Given these stakes, it might seem that a rational defendant would settle and allow the DNA testing to proceed, especially given the abundant evidence of Skinnerâ&#x20AC;&#x2122;s guilt. See D. Rosenberg & S. Shavell, A Model in Which Suits Are Brought for Their Nuisance Value, 5 INTâ&#x20AC;&#x2122;L REV. L. & ECON. 3 (1985). District Attorney Switzer has refused to follow this course, however, because she understands that the long-term costs to the State of giving into Skinnerâ&#x20AC;&#x2122;s demands are incalculably higher. If Skinner is allowed to test this

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DNA evidence, then every guilty criminal defendant will want to forego DNA testing at trial and then use the untested DNA evidence as a post-conviction litigation tool to endlessly delay or hinder implementation of the sentence. See, e.g., Frank H. Easterbrook, Foreward: The Court and the Economic System, 98 HARV. L. REV. 4, 10–12 (1983) (urging courts to consider how their decisions create incentives influencing conduct ex ante, and warning that attempts to achieve “fair” results in individual disputes may produce undesirable signals from an ex ante perspective). Such an outcome would impose intolerable costs on prosecutors, especially in small counties with limited budgets, and courts cannot encourage litigation tactics that will lead to this result.

Skinner’s Claims Against Switzer Are Barred By the Doctrine of Claim Preclusion. The doctrine of claim preclusion (res judicata) bars litigants from presenting

claims that they could have raised in a previous court proceeding but did not. Under Texas law, a res judicata defense consists of three elements: “(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the same parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action.” Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008); see also Armstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Skinner concedes that District Attorney Switzer has satisfied the first two elements of a claim-preclusion defense, at least with respect to his initial Article 64

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proceeding.2 See Pl.’s Resp. to Def.’s Mot. to Dismiss at 10. He disputes only the third element, insisting that he was unable to raise his constitutional claims in the Article 64 proceedings. See id. at 12–13. Skinner first contends that he could not have raised his federal constitutional claims in the earlier proceeding because state law forbids courts to authorize postconviction DNA testing outside the specific circumstances outlined in Article 64. Id. at 12. Skinner conveniently ignores Article VI of the Constitution, which compels state law to yield to the “supreme Law of the Land” and specifically enlists the “Judges in every State” to enforce this hierarchy.

If the Due Process Clause

requires Texas to test Skinner’s DNA evidence and Article 64 forbids it, then state judges are obligated to follow the constitutional command over a state statute. Skinner cannot evade a res judicata defense, nor excuse his failure to present his constitutional arguments in the state-court proceedings, by imagining a world in which state judges are forbidden to follow the Constitution when it conflicts with state law. Of course, litigants may sometimes avoid claim preclusion if the first court lacked subject-matter jurisdiction over the relevant claim. See 18B CHARLES A. WRIGHT

ET AL.,

FEDERAL PRACTICE

AND

PROCEDURE § 4412 (4th ed. 2011). And the

Supremacy Clause allows states to channel constitutional litigation into an Skinner asserts that the second Article 64 judgment fails to satisfy the finaljudgment-on-the-merits criterion, but he does not explain why. The state trial court denied Skinner’s motion on the merits and the Court of Criminal Appeals “affirmed” that court’s “judgment” on appeal. See Skinner v. State, 293 S.W.3d 196, 209 (Tex. Crim. App. 2009). Skinner cannot characterize this disposition as a jurisdictional dismissal, and each of the Article 64 proceedings provide Switzer with a claim-preclusion defense. 2

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appropriate forum; small-claims courts need not be required to resolve milliondollar civil-rights disputes. But state district courts in Article 64 proceedings may entertain constitutional challenges to the State’s restrictions on DNA testing; prisoners commonly assert constitutional challenges along with their Article 64 claims and state courts resolve those claims on the merits. See, e.g., Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d.) (denying a motion for testing under Article 64 and rejecting an equal-protection challenge to the statute); Curry v. State, 186 S.W.3d 39, 43 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (denying a motion for testing under Article 64 and rejecting a due-process challenge to the statute).

Although it is sometimes loosely said that a trial court “lacks

jurisdiction” to order testing under Article 64 if the statute’s requirements are not satisfied, see State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App. 2002), an Article 64 tribunal must resolve the merits of any attendant constitutional challenges, as Reger and Curry illustrate, leaving Skinner without any basis for his “futility” defense. Skinner’s next attempted excuse is that he “could not have anticipated” that Texas courts would apply Article 64 as they did, in a manner that denied him access to DNA testing. See Pl.’s Resp. to Def.’s Mot. to Dismiss at 13. How could he “not have anticipated” this outcome? The text of the statute is as clear as can be: No post-conviction DNA testing unless the applicant can show, by a preponderance of the evidence, that he “would not have been convicted if exculpatory results had been obtained through DNA testing.” TEX. CODE CRIM. P. art. 64.03(a)(2)(A). Skinner

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would have to convince a court that an “exculpatory” test result would have caused the jury to acquit notwithstanding his bloody handprints throughout the house where the murders occurred; his admission that he was in the house during the murders; his failure to call the police or seek help for the victims; his decision to flee to Andrea Reed’s house wearing clothes soaked with the victims’ blood; his threat to kill Reed and her children if she called the police; and his decision to hide in a closet when the police arrived. Skinner v. Quarterman, 528 F.3d 336, 39–40 (5th Cir. 2008). Any lawyer familiar with Skinner’s case would need only to read Article 64 to know that Skinner would be facing an uphill climb in satisfying the statutory criteria, and that only by asserting a federal constitutional entitlement to postconviction DNA testing would he have much of a chance of persuading the state court to authorize the testing. Likewise for Article 64.01(b)(1), which precludes post-conviction DNA testing of evidence that was previously available for testing at trial, unless the applicant can demonstrate an absence of “fault” and that the “interests of justice” require it. Skinner says that he “could not have anticipated that the Texas courts would unconstitutionally apply art. 64(b)(1)(B) so as to penalize him for exercising his trial right to put the State to its burden of proof.”

See Pl.’s Resp. to Def.’s Mot. to

Dismiss at 13. Yet Skinner never even argued that relying on art. 64.01(b)(1)(B) to deny Skinner’s request would violate the Constitution; how could he possibly have expected the state court to base its decision on a novel constitutional argument that neither party presented and that was not subject to adversarial testing? Skinner

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cannot excuse his failure to present his federal constitutional claims by acting as if they are so patently obvious that every judge would realize them without needing counsel to bring them to his attention. In all events, even if Skinner was surprised by the grounds on which the courts rejected his Article 64 motions, he appealed both trial courts’ Article 64 rulings to the Court of Criminal Appeals, and he moved for re-hearing after the CCA affirmed the trial court’s ruling in the first Article 64 proceeding. Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003); Skinner v. State, 293 S.W.3d 196, 202 (Tex. Crim. App. 2009). He had ample opportunity to raise and develop his constitutional due-process arguments in either the appeal or the re-hearing motion, in response to the allegedly unconstitutional state-court denials of his requests for post-conviction DNA testing. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (holding that an appellant does not waive error by failing to raise a facial constitutional challenge to a statute at trial). One who both appeals and petitions for rehearing cannot invoke a didn’t-see-it-coming defense to excuse himself from the res judicata doctrine. Finally, Skinner implies that his section 1983 lawsuit and the earlier Article 64 proceedings do not “arise out of the same nucleus of operative facts.” See Pl.’s Resp. to Def.’s Mot. to Dismiss at 11. The Texas Supreme Court, however, holds that the doctrine of claim preclusion extends to claims that arise out of the “same subject matter,” see Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 58 (Tex. 2006) (noting that Texas applies the “transactional approach” to res judicata,

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“which requires claims arising out of the same subject matter to be litigated in a single lawsuit.”) (emphasis added), and Skinner cites only an unpublished districtcourt opinion to support his “same nucleus of operative facts” variant. Ultimately, Skinner’s federal constitutional claims are precluded under either standard. Both Skinner’s Article 64 proceedings and the section 1983 lawsuit arise out of the District Attorney’s decision to reject Skinner’s demands for post-conviction DNA testing.

That is the “same subject matter” (or, if one prefers, the “same

nucleus of operative facts”) and it precludes Skinner’s federal constitutional claims in this lawsuit. Skinner notes that his federal constitutional claims turn on specific facts that differ from those at issue in an Article 64 proceeding. See Pl.’s Resp. to Def.’s Mot. to Dismiss at p. 11. But the test for res judicata is not whether the claims require proof of the same facts, or even whether the claims involve the same facts. It is whether they arise out of the same subject matter or same nucleus of operative facts. Hallco, 221 S.W.3d at 58. Skinner does not (and cannot) deny that his Article 64 claims and the federal constitutional claims that he presents in this case both arise out of the prosecution’s refusal to accommodate Skinner’s demands for post-conviction DNA testing.

And Skinner’s assertion that his section 1983

claim raises “distinct issues of law” from the claims that he litigated in state court is irrelevant to a claim-preclusion defense.

See id. at 58–59.

(“Whether or not a

cognizable distinction may be drawn between . . . claims, of course, does not answer the question of whether res judicata bars its as-applied challenge here. Certainly a

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contract claim is distinct from one based in tort, but if the claims arise out of the same subject matter and can be brought together they cannot be asserted separately.”). The Supreme Court of Texas has emphasized the strong “public policy discouraging prolonged and piecemeal litigation,” Igal, 250 S.W.3d at 86, and Skinner has no excuse for his failure to present his federal constitutional claims in the Article 64 proceedings. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84 (1984) (holding that claim preclusion bars constitutional challenges under section 1983 that could have been brought in a prior state court proceeding because “it is more important to give full faith and credit to state-court judgments than to ensure separate forums for federal and state claims,” and relying on “notions of comity, the need to prevent vexatious litigation, and a desire to conserve judicial resources.”).

The current lawsuit against District Attorney Switzer

represents an unreasonable and vexatious multiplication of Skinner’s postconviction proceedings, an example of the “needless, repetitive litigation” that the doctrine of claim preclusion is designed to avoid. Hallco, 221 S.W.3d at 58. A dismissal on res judicata grounds is not only compelled by doctrine, but is also necessary to counter the powerful incentives of death-row inmates to engage in piecemeal litigation.

Only Skinner’s lawyers know why they chose to raise his

federal constitutional claims for the first time in a civil section 1983 suit, but it is easy to see how their litigation tactics benefitted Skinner—even if the current lawsuit results (as it should) in a res judicata dismissal. By saving his federal

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constitutional claims for a section 1983 lawsuit, and then waiting for nearly two years after the conclusion of the final Article 64 proceeding to bring those claims, Skinner has managed to prolong his post-conviction litigation and win a stay of execution from the Supreme Court of the United States—none of which would have been possible had he diligently presented his federal constitutional claims in the Article 64 proceedings. The benefits to Skinner of this delay more than outweigh the costs of enduring a res judicata dismissal at this point in the litigation, especially when Skinner’s weak constitutional claim had little chance of succeeding on the merits in the first place. There are no genuine issues of material fact on whether Skinner could have presented his federal constitutional claims in the Article 64 proceedings, and District Attorney Switzer is therefore entitled to judgment as a matter of law.

II.

Skinner Cannot Establish That Switzer Violated His Constitutional Rights When He Had The Opportunity to Conduct DNA Testing During His Trial. Skinner acknowledges that the State provided him an opportunity to test the

DNA evidence during his trial. See Br. in Support of Pl.’s Mot. For Prelim. Injunc. at 31–36. He also concedes that he did not use this opportunity. Id. at 34. No fewer than three courts have concluded that Skinner’s defense lawyers made a reasonable, tactical decision for forego testing because they feared that additional crime-scene evidence would further implicate Skinner rather than exonerate him. See Skinner v. Quarterman, 2007 WL 582808 *31–32; Skinner v. Quarterman, 528 F.3d at 341–42); Skinner v. State, 293 S.W.3d at 202. Each of those courts also rejected Skinner’s contentions that his trial attorneys failed to satisfy the

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constitutional standards for effective assistance of counsel.

The Fifth Circuit

refused even to grant a certificate of appealability on this question. Skinner, 2007 WL 582808 at *31–32; Skinner, 528 F.3d at 341–42; Skinner, 293 S.W.3d at 202. The federal district court in Skinner’s habeas corpus proceedings made the most extensive findings regarding the strategic decisions of Skinner’s trial lawyers. See Skinner, 2007 WL 582808 at *31–32. The district court determined that Harold Comer (Skinner’s trial attorney) decided to pass on further DNA testing because he feared, based on the overwhelming evidence of Skinner’s guilt, that the testing would only further implicate Skinner and provide additional incriminating evidence for the prosecution. The items that had already been tested, such as the bloodstains on Skinner’s clothing, had damaged Skinner’s case and Comer did not want additional inculpatory evidence to be presented to the jury. Id. at *29. The district court found that Comer reasonably believed that he would be unable to keep the test results secret from the prosecutors, as the State had custody of the evidence, would know what items Skinner requested for testing, and would then decide to test those items for themselves. Id. at *31 & n.9. Comer also decided against further DNA testing because he wanted to attack the government at trial for its failure to test all of the available DNA evidence, and use those omissions to plant seeds of doubt in the minds of jurors. Id. at *32. Skinner has not disputed any aspect of Comer’s testimony in his complaint or in his other filings with this Court, and even if he did, the state and federal courts’ rejection of Skinner’s ineffective-assistance claims would nevertheless bind this

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Court under the doctrine of issue preclusion (collateral estoppel).

(We have

included the relevant portions of Comer’s sworn testimony, App. 7–8, and the court opinions evaluating Comer’s performance, App. 50–53, 71, 82–83, in the appendix to this motion.) This undisputed evidence entitles District Attorney Switzer to judgment as a matter of law. Skinner’s trial attorneys, acting as his agents, made a sensible and strategic decision to forego DNA testing. Defense counsel knew that Skinner had offered to plead guilty to first-degree murder in exchange for a life sentence and that the evidence of his guilt was overwhelming; any reasonable lawyer in their situation would conclude that further DNA testing was far more likely to implicate Skinner rather than exonerate him.

They also hoped to win an acquittal by

criticizing the prosecution for its failure to test all the remaining DNA evidence. The Due Process Clause cannot entitle a criminal defendant to forego DNA testing at trial as part of his strategy to win an acquittal, and then, when that strategy fails, to turn around and assert a constitutional entitlement to test in postconviction proceedings the very evidence that he declined to test during his trial. This would confer nothing less than a constitutional right to litigate by sandbagging. See Osborne, 129 S. Ct. at 2317 (citing with approval State laws that “deny [post-conviction DNA] testing to those who declined testing at trial for tactical reasons”); id. at 2329 (Alito, J., concurring) (“When a criminal defendant, for tactical purposes, passes up the opportunity for DNA testing at trial, that defendant . . . has no constitutional right to demand to perform DNA testing after conviction.

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Recognition of such a right would allow defendants to play games with the criminal justice system.”).

And it cannot be reconciled with the doctrine of procedural

default or the federal habeas statute’s restrictions on evidentiary hearings, which establish that criminal defendants forfeit claims when they pass on their opportunities to present arguments or evidence in state-court proceedings.

See

Wainwright v. Sykes, 433 U.S. 72 (1977); 28 U.S.C. § 2254(e)(2). Texas satisfied all requirements of constitutional due process when it offered Skinner the opportunity to test the DNA evidence at his trial. By spurning that opportunity, Skinner has forfeited any entitlement to test that evidence in post-conviction proceedings. Skinner thinks that the Constitution requires Texas to accommodate his demands for post-conviction DNA testing notwithstanding this calculated decision to forego the opportunity at trial.

First, Skinner notes that Texas had not yet

enacted Article 64 at the time of Skinner’s trial, and suggests that this absolves Skinner and his attorneys of any intent to sandbag. See Br. in Support of Pl.’s Mot. for Prelim. Injunc. at 32. But there were other avenues to pursue post-conviction DNA testing prior to the enactment of Article 64, including federal habeas proceedings, section 1983 actions, and attempting to pressure the local district attorney to voluntarily test the evidence. Skinner himself has invoked each of these mechanisms in his efforts to secure DNA testing.

See Compl. ¶¶ 21–26.

His

suggestion that gamesmanship by criminal defendants was inconceivable at the time of his trial defies reality.

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Second, Skinner argues that District Attorney Switzer’s stance imposes an “unconstitutional condition” because it withholds the benefit of post-conviction DNA testing from criminal defendants who choose to put the prosecution to its proof rather than introduce evidence on their own behalf. See Br. in Supp. of Pl.’s Mot. for Prelim. Injunc. at 32–33. But Skinner cannot be serious when he asserts that “the government may not require a beneficiary to surrender a constitutional right in order to obtain a benefit from the government, even if it otherwise could have withheld the benefit altogether.”

Id.

On this reasoning, all plea bargaining is

unconstitutional, because it offers a benefit to criminal defendants (reduced charges or a reduced sentence) that they can obtain only by surrendering their constitutional right to put the government to its proof at trial. It would mean that Skinner himself was complicit in an attempted constitutional violation when he offered to plead guilty to first-degree murder, and surrender his constitutional right to a jury trial, in exchange for a life sentence. Giving new meaning to the saying “no good deed goes unpunished,” Skinner argues that the Constitution forbids States to establish procedures for postconviction DNA testing unless they also permit criminal defendants to sandbag at their trials. Anything less than that would present the so-called “Hobson’s choice” that Skinner claims is foreign to the Constitution.3 Br. in Supp. of Pl.’s Mot. for

Skinner is misusing the phrase “Hobson’s choice” by equating it with a decision that involves only undesirable choices. A Hobson’s choice arises when one is given the option of taking the one thing offered or nothing at all. See, e.g., Bryan A. Garner, A Dictionary of Modern Legal Usage 404 (2d ed. 1995) (“Tradition has it that Thomas Hobson (1549–1631), a hostler in Cambridge, England, always gave his customers only one choice among his horses: whichever one was closest to the door.”). 3

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Prelim. Injunc. at 32. But District Attorney Switzer’s resistance is not imposing an unconstitutional condition at all; it represents nothing more than a straightforward application of principles derived from the doctrines of res judicata and forfeiture. A litigant who has an opportunity to test DNA evidence at trial and foregoes that opportunity for strategic reasons cannot obtain post-conviction DNA testing without encouraging other litigants to engage in similar forms of gamesmanship, and that more than suffices to justify Switzer’s refusal to yield to Skinner’s demands. Third, Skinner contends that the State should have to prove that Skinner himself “knowingly and willingly acquiesced” in his trial lawyers’ decision not to test the DNA evidence. See Br. in Supp. of Pl.’s Mot. for Prelim. Injunc. at 34. That is demonstrably false. Lawyers are agents, and their actions are imputed to their clients regardless whether the principals “knowingly and willingly acquiesced.” See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (“[T]he attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’”); see also People v. Rathbun, 21 Wend. 509, 543 (N.Y. Sup. Ct. 1839) (“A prisoner . . . who defends by counsel, and silently acquiesces in what they agree to, is bound as any other principal by the act of his agent.”). What Skinner is really asking for is a holding that the Constitution requires States to resurrect the regime of Fay v. Noia, 372 U.S. 391 (1963), and apply it to every litigant seeking post-conviction DNA testing. Under the Fay regime, which the Supreme Court long ago repudiated in Wainwright, 433 U.S. at 87–88, a state

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prisoner can be deemed to forfeit his federal constitutional claims only if he “deliberately bypassed” an opportunity to present them in earlier proceedings. Id. Fay represents the most generous waiver rules that the Supreme Court has ever devised; it went so far as to hold that trial counsel’s deliberate, strategic decision to forego a constitutional claim at trial would not constitute a waiver in federal habeas proceedings if the client did not participate in the decision. Fay, 372 U.S. at 439. It also proved to be unworkable because it (unsurprisingly) encouraged criminal defendants to engage in “sandbagging” and piecemeal litigation. See Wainwright, 433 U.S. at 89. This is the regime that Skinner wants this Court to impose on the States as a matter of federal constitutional command. But the notion that the Constitution’s due-process clause requires States to apply Fay’s “deliberate bypass” rule to litigants seeking post-conviction DNA testing cannot be reconciled with the Supreme Court’s repudiation of Fay, and its persistent recognition that criminal defendants forfeit their constitutional claims by failing to present them at trial. See, e.g., Wainwright, 433 U.S. at 87–89.

It cannot be that the Constitution

requires states to adopt waiver rules for post-conviction DNA testing that are more generous than the procedural-default regime that the Supreme Court applies to constitutional rights in general. Skinner notes that the federal Innocence Protection Act adopts a Fay-like notion of waiver, but that observation does nothing to show that Texas is violating the Constitution by adopting a more stringent forfeiture regime.

He nowhere

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explains how congressional legislation informs the meaning of the Constitution’s due-process clause, other than to offer a bald assertion that Texas’s decision to depart from the congressionally endorsed regime provides “powerful evidence” that the State is violating the Due Process clause by holding Skinner to the tactical decisions of his trial lawyers. The premise behind this assertion is that any postconviction DNA regime enacted by Congress must represent the constitutional minimum, but Congress is allowed to establish federal statutory rights that extend beyond the bare minimum required by the Constitution.

See, e.g., Religious

Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq.; Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq. And in all events, the Innocence Protection Act adopts more generous rules of forfeiture because it contains other restrictions that prevent guilty convicts from abusing the system.

18 U.S.C. § 3600(a)(1) requires applicants seeking post-

conviction DNA to assert, under penalty of perjury, that they are actually innocent of the crime of conviction. This not only deters guilty convicts from asking for postconviction DNA testing; it also ensures that lawyers will avoid representing clients who they know are guilty, which could expose them to criminal liability or disbarment for suborning perjury. Skinner would not qualify for DNA testing under the standards of the federal Innocence Protection Act, because he has not submitted any sworn statement asserting his actual innocence. He does not even allege in his Complaint that he is

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actually innocent, and his filings in his Court (as best we can tell) have carefully avoided any declaration of actual innocence. There is a great distance between a statement that “Mr. Skinner has continued to declare his innocence through almost fifteen years of post-conviction appeals,” see Br. in Support of Pl.’s Mot. for Prelim. Injunc. at 1, and a statement that “Mr. Skinner is innocent.” Guilty litigants cannot utter the latter statement without exposing their lawyers to disciplinary action or criminal prosecution, yet lawyers can freely assert the former statement even when they know their client is guilty. Article 64 does not require a sworn declaration of actual innocence for those seeking DNA testing. It requires only that the applicant submit a sworn affidavit “containing statements of fact in support of the motion.” TEX. CODE CRIM. P. art. 64.01(a). So it is only to be expected that Texas would adopt stricter forfeiture rules to deter guilty criminal defendants from pursuing post-conviction DNA testing on account of their deliberate decisions not to test that evidence at trial. Either way, the Due Process clause permits States to establish mechanisms to deter abuses of the post-conviction DNA testing procedures that they extend to their convicted inmates.

See Osborne, 129 S. Ct. at 2317 (recognizing the “need for certain

conditions on access to the State’s evidence,” and citing with approval State laws that “deny testing to those who declined testing at trial for tactical reasons”). Imposing stringent forfeiture rules (as Texas does), or requiring applicants to

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submit a sworn affidavit (as the federal statute does), each represent a constitutionally permissible means of curbing abuses.4 Fourth and finally, Skinner argues that even if he “deliberately bypassed” the opportunity to test his DNA at trial, the Constitution still requires the State of Texas to allow him post-conviction DNA testing, because even a criminal defendant’s deliberate gamesmanship “should not bar him from asserting his constitutionally-protected rights.”

On this view, constitutional rights are

inalienable and can never be forfeited, even by a defendant who decides for strategic reasons not to raise claims at trial, with the intent of springing them later on appeal or in post-conviction proceedings. This position cannot be reconciled with Wainwright or any of the Supreme Court’s decisions on waiver and forfeiture, or, for that matter, with any sensible notion of how to run a criminal-justice system.5

III.

Skinner Cannot Establish That Switzer Violated His Constitutional Rights When DNA Testing Will Not Exonerate Him. District Attorney Switzer is entitled to summary judgment for an additional,

independent reason: Skinner has failed to show that he might be actually innocent Sixteen other states plus the District of Columbia impose the same forfeiture rule as Texas, refusing DNA testing to prisoners who failed to test available evidence at trial. See ALA. CODE § 15-18-200(e)(2)(b); ARK. CODE ANN. § 16-112-201(a); DEL. CODE ANN. tit. 11, § 4504(a)(2); D.C. CODE § 22-4135(d)(1); GA. CODE ANN. § 5-5-41(c)(3)(B); IDAHO CODE ANN. § 19-4902(b); ME. REV. STAT. ANN. tit. 15, § 2138(10)(c); MINN. STAT. § 590.01(1a)(2); MO. REV. STAT. § 547.035(2)(3); NEV. REV. STAT. § 176.0918(3)(e); N.D. CENT. CODE § 2932.1-15(1)(b); OHIO REV. CODE ANN. § 2953.74(B); 42 PA. CONS. STAT. § 9543.1(a)(2); UTAH CODE ANN. § 78-35a-301(4); VA. CODE ANN. § 19.2-327.1(A); W. VA. CODE ANN. § 15-2B14(f)(6)(B); WYO. STAT. ANN. § 7-12-303(d). 4

Skinner does not tell us whether any limits exist on his inalienability notion. Does he believe that an Article 64 applicant who decides, for strategic reasons, to test only a subset of the available DNA evidence has a constitutional right to demand another round of post-conviction DNA testing? And another one after that? 5

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of the crime or that further DNA testing might exonerate him. States that establish post-conviction proceedings have no constitutional obligation to grant DNA testing to every prisoner who demands it; the Constitution allows States to limit this privilege to convicts who make plausible showings that DNA testing might exonerate them. See Osborne, 129 S. Ct. at 2317 (citing with approval state statutes that impose a “requirement of materiality” on those seeking post-conviction DNA testing). Skinner has made no such showing here. Skinner does not even allege his actual innocence of these crimes in his Complaint or in any other document that he has filed with this Court. Without such an allegation, there is no disputed question of fact over whether Skinner in fact committed these murders. Because DNA testing can prove innocence only for those who are actually innocent, District Attorney Switzer is fully justified in resisting Skinner’s demands for the sole reason that Skinner’s actual guilt is undisputed. If there is no factual dispute over Skinner’s guilt, then there is no factual dispute that post-conviction DNA testing might prove his innocence. Even if Skinner had alleged his innocence, he would still be unable to establish a genuine issue of material fact on these issues. Mere allegations are insufficient to survive a summary-judgment motion; Skinner must produce evidence showing that post-conviction DNA testing might prove his innocence. See FED. R. CIV. P. 56(c). And Skinner cannot make this showing given the overwhelming and undisputed evidence of his guilt.

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Skinner admits that he was in the house during the murders. See Skinner Sup. Ct. Br. at 2.

He previously told Howard Mitchell that he would kill his

girlfriend, Twila, if she were ever unfaithful to him. See Skinner v. State, 956 S.W.2d 532, 535, n.3. (Tex. Crim. App. 1997). After Twila and her sons, Randy and Elwin, were stabbed and strangled, Skinner did not call the police or seek help for them. Instead, he fled to his former girlfriend Andrea Reed’s house, covered in the victims’ blood, wearing socks but no shoes. At Reed’s house, Skinner tried to stitch a cut wound in the palm of his hand rather than go to the hospital. He confessed to Reed that he thought he had killed Twila and threatened to kill Reed and her children if she called the police. See Skinner, 2007 WL 582808, at *2–*5. When the police arrived at Reed’s house, Skinner hid in a closet, and when told he was being arrested on outstanding warrants, he replied, “Is that all?” See Trial Tr.25.361– 362; Tr.27.789–790. On direct appeal, Skinner conceded that the prosecution’s evidence was sufficient to show that he killed Twila and Elwin. Skinner, 956 S.W.2d at 536–537. And prior to his trial, Skinner offered to plead guilty to first-degree murder in exchange for a life sentence. He did not offer to plead nolo contendere; he offered to plead guilty, a process by which one confesses in open court to first-degree murder. See Habeas Evid. Hr’g Tr. at 135. Skinner cannot make any genuine showing that he is actually innocent, or that further DNA testing will help him establish his actual innocence. This reason alone justifies District Attorney Switzer’s refusal to accommodate Skinner’s

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demands for post-conviction DNA testing, and entitles her to judgment as a matter of law. CONCLUSION We respectfully request that this Court enter judgment in favor of District Attorney Switzer. Respectfully submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Director of Defense Litigation

/s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General State Bar No. 24075463 Jonathan.Mitchell@oag.state.tx.us ARTHUR C. Dâ&#x20AC;&#x2122;ANDREA Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1695 Fax: (512) 474-2697 COUNSEL FOR DEFENDANT

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) ) ) ) ) ) ) ) ) ) )

Civil Action No. 2:09-CV-00281

APPENDIX

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy of Defense Litigation

JONATHAN F. MITCHELL Solicitor General State Bar No. 24075463 ARTHUR C. Dâ&#x20AC;&#x2122;ANDREA Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1695 Fax: (512) 474-2697 COUNSEL FOR DEFENDANT

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INDEX TO APPENDIX

Document

Page

Excerpts of Evidentiary Hearing Transcript, Nov. 16, 2005

Skinner v. Quarterman, No. 2:99-CV-0045, 2007 WL 582808 (N.D. Tex. Feb. 22, 2007)

Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008)

Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009)

Case 2:09-cv-00281-J -BB Document 61 Filed 06/02/11 Page 3 of 91 PageID 516 11 16-05 EVIDENTIARY HEARING,VOL. I 112

of Plaintiff's Exhibit 13, the affidavit,

and the fourth

paragraph down on the page.

state had turned over -- "

What are you looking at?

I'm sorry, 13.

affidavit:

All right.

The fourth paragraph that starts with "If the state

had turned over

It starts with,

"If the

Do you see that?

We're back to 13, which is your

Okay.

What did you want me to look at?

Okay:

Does that first sentence refresh your recollection

as to whether or not you would have turned this over to

Dr. Lowry?

Right.

Did the district attorney's office have an open

access policy with respect to discovery at the time you

were preparing this case for trial?

Yes, they did.

How did that work?

Well,

could go to the DA's Office and review the entire file,

and then he would make us copies of those records,

sometimes he'd make copies when we didn't request them,

all records that related to the case, and he would just

send- them to us.

it was not only an open file policy.

BETTY TATE, 3101 TOWNBLUFF DR.

#923,

and

PLANO, TX. 972-596-9442

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. ;r

went over and looked at. the file on -- just pick a date,

March 15th, and that was still several months before

trial,

in that file that you wanted to copy, would you then

subsequently have to go back every so often to look at

the file again to see how it had been updated or would

the district attorney usually provide you the

information as to the update?

Well, my next question was going to be suppose you

and you reviewed that file and copied everything

As to matters that you had

hadn't?

the file,

right,

they would make me a copy of the entire file.

if there was anything that supplemented their file,

would send it to me without any request,

numbered each one,

with all of the documents that related to this case from

the district attorney's office.

anything additional,

so it wasn't -

and look again to get different information,

just send that to us.

your preparation for trial on this case you did review

The way it worked,

requ~sted

or that y6u

I would go up and look at

and I'd go through the file and I'd say all

I'd like to have a copy of the entire file,

Okay.

BETTY TATE,

and

Later on they

and they Bates

but we were provided, as I recall,

Anytime they got,

they would also furnish that to us,

when you say did I have to go up there they would

And you believe that during the course of

3101 TOWNBLUFF DR.

#923,

PLANO, TX.

972 596-9442

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fact,

remember -

I've actually specifically mentioned

that I would be objecting to incomplete documents to

give them a warning to please bring a complete set with

them so that you could have a chance to review it to see

if in fact what's been redacted is irrelevant. MR. ROBINSON:

That's fine,

have no problem with that.

the chair there,

those files,

In fact,

Your Honor. Mr.

Comer has up at

he does have a complete copy in one of

but let me get to that.

If I can go ahead

and question him'on what's on this page and then we!ll

deal with that problem. THE COURT:

All right.

(By Mr. Robinson)

Let me ask you this to deal with

one of Ms. Hayes'

exchange with Mr. Skinner regarding whether or not the

district attorney would accept a plea bargain?

Yes.

And do you'recall writing to Mr. Skinner on the

24th of June,

attorney,

recommend three consecutive life

Yes.

And you recall that without being refreshed by this

letter,

memory?

objections.

i994,

Do you recall having an

advising him that the district

in consideration for a plea of guilty, would sentenc~s?

or do you need this letter to refresh your

BETTY TATE,

3101 TOWNBLUFF DR.

#923,

PLANO,

TX.

972 596-9442

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Yes,

You do recall that.

district attorney rejected a counter offer to plead

guilty to one offense?

think

not we had initiated an offer to plead guilty in return

for the district attorney's representation for a

conviction of first degree murder carrying a life

Well,

I recall that. And you also recall that the

Do you recall that?

I don't think it was quite that

- well,

sequence~

I started to say I wasn't sure whether or

sentence.

Whether this was in response to that,

either event I remember the discussion revolved around

whether or not

offer to plead guilty to first degree murder,

would recommend a life sentence, and the district

attorney, as I recall,

counter offer he said he would recommend

recommend three consecutive life sentences on a plea of

guilty to the indictment,

those plea bargain discussions.

interested in is whether or not you recall sending this

letter to Mr. Skinner in which there had been a

discussion about plea bargaining, and in the last

paragraph of the letter on Page 2 you told him that you

were not sure how long the state's offer would remain

Mr. Skinner authorized me to make an if the DA

rejected that but in reply as a would

the capital murder indictment.

I'm not actually that interested in the details of

BETTY TATE,

3101 TOWNBLUFF DR.

What I'm really

#923,

PLANO, TX.

972 596 9442

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going to change subjects on you again.

Now we're going to the subject of DNA testing.

Okay.

In this case the state did only partial testing of

the DNA material that was available, correct?

Yes.

And you didn't ask to have more material tested or

for the opportunity

material?

r the defense to test DNA

No.

Going back to Plaintiff's Exhibit 73, which is the

affidavit you gave for the state a few years ago, and

before you look at that actually,

you remember about what you said in that affidavit about

the reasons why you did not do DNA testing?

Well,

I want to ask you about the affidavit first.

you remember what you said in the affidavit?

had asked -

remember the exact wording.

I remember, you know,

but for now I want to confine you to whether you

remember what you said in the affidavit, and you said

I remember what we did.

I remember

I want to ask you what

I'm not too sure - Do

Ms. Hayes

I can paraphrase it but I can't I remember that -- I think

but -

I'm going to give you the opportunity to say that

BETTY TATE,

3101 TOWNBLUFF DR.

#923,

PLANO, TX.

972-596-9442

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you don't remember the it word for word.

No.

Let me ask you then to go to Plaintiff's Exhibit

No.

73?

You had· it there a few minutes ago.

Okay.

Now I think if you go to Paragraph 11.

Okay.

Is that Paragraph 11 a description of your

explanation for not having done any DNA testing?

that an accurate reflection of why you did not do DNA

testing?

one sentence I need to add.

describe the basis of our defensive theory as to why we

. 17

73,

I remember the tenor of what was said.

Paragraph 11.

Having read it here I think there's probably maybe Yes,

that does generally

didn't request additional testing .

And what is the sentence that you would add?

Well, we were aware of the DNA testing that had

already been done.

That's one sentence.

(Laughing) .

I'm sorry,

sentences as you want to add.

I'm being facetious.

We were aware that the DNA

BETTY TATE,

3101 TOWNBLUFF DR.

Go ahead.

test~ng

#923,

As many

had already been

PLANO, TX.

972-596 9442

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done and it was incriminating, and we had no reason to.

believe that if additional testing of the items that had

not been tested by the state would have proved anymore

helpful to us than the DNA testing that had already been

done.

state for not having -- for doing just selective DNA

testing and not testing evidence that mightl had it been

tested, tend to exonerate Mr. Skinner from having

committed the offenses, but knowing what we already knew

abou.t the DNA testing, we didn' tthink it was prudent to

request that additional testing be done because that

would certainly detract from and not be helpful to.us in

our defense theory.

done by the state was incriminating.

incriminating that Mr. Skinner's own blood was on his

clothes?

incriminating was that Twila's blood was on his clothes,

as well as the blood

his clothes and his shirt.

his clothes?

blood spatters evidence that we had available to us Â

Instead of that our decision was to fault the

You said that the testing that had already been

No, that's not incriminating.

Was it

What was

as I recall, of Elwin Caler was on

What was incriminating about Twila's blood being on

Well, you had the blood spatters.

BETTY TATE, 3101 TOWNBLUFF DR. #923,

The type of

PLANO, TX.

972-596-9442

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-- I

You told me that the DNA testing was incriminating.

Yes.

One reason is because it had Twila Busby's blood on

his clothes,

incriminating.

part of your defense that Mr. Skinner was present in the

house at the time the murders occurred, correct?

Yes.

It was part of the defense theory,

as part of the defense t o r y anyway,

was present in the same room with Twila Busby at the

time that she was beaten with an axe handle; correct?

Yes.

So what would have been incriminating -- anymore

incriminating anyway than what the defense's theory was

with Twila Busby's blood being on his shorts?

apparently from the evidence,

the same sequence,

the floor,

and we had the two young men who had been killed who

were also covered with blood,

reflect that one of those boy's blood and Mr. Skinner's

blood and Twila's blood was on Mr. Skinner,

I want you to focus now on DNA testing.

and I want to know why that DNA result was It was your defense,

Well, here we had

BETTY TATE,

was it not,

or an admission

that Mr. Skinner

people killed,

and

at the same time,

same episode.

it was

or in

We had Twila Busby on

who had been covered extensively with blood

3101 TOWNBLUFF DR.

and for DNA testing to

#923,

PLANO,

was

TX.

972-596-9442

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certainly not something that we could point to as being

helpful to the state -- I mean to the defense. It seemed that too that there was other DNA

3 4

testing done by the state that would indicate that -Â

now,

there was a mixture of Twila's blood and Elwin Caler's

blood on Mr. Skinner's pants.

trying to recall from sometime back as to what testing

had been done and what the results of that testing had

I may be wrong about this, but it indicated that

Now,

that is -- I'm just

been, if anything.

testing results as they were known to us,

request further

our defensive theory.

represented him maintain his innocence?

Yes, he did.

And did he maintain his innocence with you, and I'm

asking about in confidential communications did he ever

indicate to you that he was guilty of the crimes?

No,

As long as we're on that subject and you've got

Exhibit 73 in front of you,

19, which is the last paragraph -- last substantive

paragraph.

Nevertheless, we felt from the

te~ting

that to

would not be in accordance with

Mr. Comer, did Mr. Skinner at all times while you

He did maintain his innocence.

he didn't.

if you could go to Paragraph

On Exhibit 73?

BETTY TATE,

3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

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correct,

Paragraph 19, which would be the first

page,

All right.

In that paragraph you indicate there may be

confidential information which would help the court in

understanding the deÂŁense position, or reasons for or

against advancing a certain trial strategy,

the court to ask about that information.

any particular confidential information in mind when you

last paragraph.

and invite

Did you have

wrote that paragraph?

Yes.

You did have confidential information in mind when

you wrote that paragraph?

what we've discussed so far?

is there anything -- let me -

into a component part.

you had in mind information that Mr. Skinner had told

you that he was guilty?

No.

Was there any other confidential communication that

you had from your client that you had in mind?

No, not from my client.

Was there confidential information that you had

obtained from another source?

Is it anything other than On the subject of the DNA, well, maybe bre.ak it down

Was the confidential information

Yes.

BETTY TATE,

3101 TOWNBLUFF DR.

#923,

PLANO, TX.

972-596-9442

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information you

had obtained from an expert witness?

Yes.

And that expert witness was

The blood spatter expert.

Mr. Courtney?

Yes.

Did Mr.

blood spatter evidence that was not helpful to the

Courtney indicate to you that there was

defense?

Yes.

Did he indicate to you that that blood spatter

evidence indicated that Mr. Skinner was guilty?

15.

report that we received from Mr. Courtney that Mr.

Skinner was guilty.

of what his blood spatter testing had shown.

make any comment about

any comment about his opinion as to the guilt or

innocence of Mr. Skinner.

to read Mr. Courtney's report,

Yes.

And that report was faxed to you by Mr. Courtney's

office?

I don't -- I don't think he put any wording in the

Mr.

BETTY TATE,

Comer,

He was just giving us the results

in fact,

He didn't

- in his report he didn't make

you've had a recent opportunity

3101 TOWNBLUFF DR.

right?

#923,

PLANO,

TX.

972-596-9442

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Yes.

Why don't we tell the court who Mr. Courtney is.

He is the blood spatter expert that we retained in

this case to examine the evidence, physical evidence in

the case that was on hand at the evidence room at the

Pampa Police Department.

wasn't he?

expertise in forensic testing and forensic examination

In fact,

he was more than the blood spatter expert,

Wasn't he a criminologist who had some

of evidence beyond blood

solely for the purpose of examining the evidence,

particularly the blood spatter evidence.

retained him.'

,15

Oh,

spatte~s?

I don't know that.

You and Mr.

I know that we hired him

That's why we

Fields'took him over to the evidence

room to show him the evidence, right?

Yes.

And you had him go through all of the evidence in

the room,

Yes.

And give you comments on whether or not there was

any evidentiary value to that evidence?

all the time.

office and he left.

correct?

Well, he was there for sometime.

BETTY TATE,

I wasn't there

I think probably I'd gone back to the He prepared us a report and he may

3101 TOWNBLUFF DR.

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have discussed it with us beforehand, but he did examine

quite a bit of the evidence that was in the. - if not

all the evidence that was in the evidence room.

discussed this report before, have we not?

we discussed it when you called.

You did, you did fax it to me.

Yes.

Mr. Comer, prior to this hearing you and I have

Well,

I think I faxed it to you.

MR. ROBINSON:

Okay.

I don't know what

I'm going'to, Your

Honor, ask to have.this marked as an exhibit.

would be an additional exhibit,

be-Â

THE COURT:

MR. ROBINSON:

if I may, which would

(Inaudible) .

I assume the

state has a copy?

MS. HAYES:

No, we don't.

THE COURT:

Go ahead and mark it for

identification. MR. ROBINSON:

Mark it as Plaintiff's Exhibit

This is a document that has a fax cover sheet on it

77.

from Harold F.

1:30 p.m.,

Comer to Doug Robinson,

report.

BETTY TATE,

date 10 31-05,

and I ' l l show it to counsel. MS. HAYES:

24 25

This

Your Honor, we're fine with this

Really, we've never seen it.

3101 TOWNBLUFF DR.

#923,

I believe y'all

PLANO,

TX.

972-596 9442

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probably know -

down because I figured out he had to be the blood

spatter guy.

did they actually do work on this case on Skinner, and

asked them to specifically send a copy to trial counsel

because I didn't know if there was anything in the

document that was going to be privileged that I wouldn't

have a chance to see, so I have -Â

seen it until just now,

I mean I tracked Max Courtney's office

I called Courtney's office and asked them

to date I've never

so if there's going to be

questioning on it now, we really would like a copy.

It's pretty long, and we'd like to follow along with it.

MR. ROBINSON:

Your Honor,

I wonder if we

couldn't maybe take a short break at this point, an

early break, and make some copies of this documeht .so

you'll have one and the witness will have one.

16 17

THE COURT:

All

ght,

let's take a ten minute

break.

(Short Recess) (By Mr. Robinson)

Now, Mr. Comer, during the break

have you had an opportunity to review that exhibit

marked as Plaintiff's Exhibit 77.

Yes.

And is this, with the exception of the cover sheet,

fax cover sheet from you to me,

report that you were testifying about just before the BETTY TATE,

3101 TOWNBLUFF DR.

is this the Max Courtney

#923,

PLANO, TX.

972-596 9442

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break?

Yes.

I want to take your attention to the last paragraph

of this document.

in this document you care to, but is that last paragraph

the paragraph you were referring to earlier when you

said Max Courtney gave you a report that was unfavorable

on the blood spatter?

You're free to refer to anything else

I think that sums it up Mr. Robinson.

Some

information it gives in the context

it sums it Up in the last paragraph.

letter where he

any other blood stains for that matter being

inconsistent with the defense theory?

Maybe one.

Did you say 51.12?

Yes.

All right.

that you were referring to earlier when you said you got

an unfavorable blood spatter report from this expert?

Yes.

Excuse me,

Well,

is there anything in 51.41 implicating Mr.

Skinner, as opposed to anybody else who might have

committe6 the crime?

Well,

BETTY TATE,

(inaudible)

I think

is there anything else in the body of the tal~s

about the clothing of Skinner or

He's got the number 51.09 then 51.12.

That's the information in this report

51.41 too, and 51.45 down here.

3101 TOWNBLUFF DR. #923,

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Other than (inaudible)

(inaudible)

that Mr. Skinner was laying prone on

nothing there in these paragraphs.

would incriminate Mr. Skinner?

the assailant.

Would the

No,

~nformation

the

~ame

I believe the evidence was we had before trial was, - no,

there is

be true of 51.45, nothing there that

as opposed to anyone else that might have been Yes, you're correct. o~her

Now, Mr. Courtney says some

things here in

this report as well, doesn't he, he doesn't just confine

himself just to blood spatter.

5 of his report.

All right.

It's the page that has -- in fact,

numbers and other page numbers, but I'm looking at the

page that starts with general comments down at the

bottom of the page.

Page 5, yes.

paragraph under general comments he says that much of

the evidence has never been examined by a forensic lab,

doesn't he?

It's his

If you could go to Page

P~ge

we have fax page

5 and it's fax Page

I have the general comments on Page 6.

Here's his Page 5.

Now we're on the same page.

In that first

Yes.

BETTY TATE,

3101 TOWNBLUFF DR.

#923,

PLANO,

TX.

972-596-9442

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And he says much of it could be of crucial

significance.

Correct.

This report, by the way,

late in the pretrial preparation process, wasn't it?

Yes.

He says any of the blood stains from the seized

knife, the wooden handle and any other items could be

from an unknown assailant, correct?

is dated 12-20-94, fairly

Correct.

Any of the hairs on the victims, particularly the

hairs on Twila Busby's hands and stomach could be from

an unknown assailant, correct?

Correct.

Nothing in that paragraph that suggests to you that

they shouldn't have done further DNA testing,

to fault the state for not having examined the entire

evidence, bedause had the state examined this type of

evidence,

said, we made a decision that we didn't want any testing

because of the facts that we already knew and the fact

that we would rather use that in defensive evidence to

fault the state for not having

not just doing selective testing but -

is there?

No, but our defensive theory was that we were going

it might have exonerat

BETTY TATE, 3101 TOWNBLUFF DR. #923,

Mr. Skinner.

As I

fault the state for and the

PLANO, TX.

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selective testing very likely the results of which might

have exonerated Mr. Skinner.

were going to try to convince the jury that it was up to

the state to have done this testing, and they didn't do

the testing?

case the state has the burden to establish guilt beyond

a reasonable doubt,

So your defense was or your theory was that you

No, our theory would be is that in any criminal

and we would say that they could

have tested the rest of this evidence, which would have

placed any doubt about Mr. Skinner's guilt from placing

it beyond the scope of reasonable doubt.

it tested because we wanted to use this in order to

convince the jury that it should have been tested,

had the state conducted the testing,

been, as I say, beneficial to Mr. Skinner.

all times maintained his innocence with you, and he did,

. 19

Okay.

We didn't want

and

then it might have

I asked you earlier whether Mr. Skinner at

correct?

Yes.

And you had an opinion from Dr. Lowry. Did you

feel like Dr. Lowry's opinion was a strong opinion?

Yes, we were happy with it.

And that opinion bolstered the notion that Mr.

Skinner was innocent, correct?

BETTY TATE/

3101 TOWNBLUFF DR. #923,

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Well,

I don't think it was c6ncLusive.

No,

bolstered;

innocent.

Yes.

And Mr. Skinner's innocence was also bolstered by

evidence from a hand expert that you put on the stand.

Do you remember the hand expert?

testified in his -Â

it wasn't conclusive, but I used the word it bolstered the theory that Mr. Skinner.

~as

A gentleman who

Physical therapist.

Yes,

testimony?

Skinner had some defect or had had an injury in his

right hand and he didn't have a grip or something.

incapable of committing the murder?

Yes, that's why we used him.

Mr. Comer, did you discuss with Mr. Mann,

district attorney, what procedures he would agree to if

you did do some DNA testing?

No.

Did he ever indicate to you that he wouldn't allow

the defense to test?

Yes,

an occupational therapist.

Do you recall his

that he had something wrong with his -- Mr.

Yes.

So that was more evidence that Mr. Skinner was

the

No.

BETTY TATE

3101 TOWNBLUFF DR.

#923

PLANO

TX.

972-596 9442 19

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the testing?

No, we never asked him for permission.

So he never indicated to you that he would insist

on knowing the results if you did testing?

No.

Did you ever talk to the judge,

informally, about getting an order allowing you to do

DNA testing?

formally or

Additional testing?

Additional testing'.

Well,

Did you ever talk to the judge about whet

14,

would require the State of Texas to pay for additional

testing if you wanted any done?

No.

In Plaintiff's Exhibit 73,

looking at it a little earlier as at least part of your

explanation for not doing DNA testing, you indicated

that you were concerned that doing additional DNA

testing would prejudice your defense.

Paragraph II?

Paragraph II, the second line.

like it would prejudice

testing -- no. r he

in Paragraph II, we were

Do you see that?

It says,

IIWe feel

Right, yes.

BETTY TATE,

3101 TOWNBLUFF DR.

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TX.

972 596 9442

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",i

Did you have in mind that the results might come

back to incriminate Mr. Skinner?

point in time in the DNA testing, we didn't feel that

additional testing would be beneficial to our defense.

We were worried about the results, and secondly we were

worried whether or not that would prompt the state to do

additional testing that we didn't want.

our mind at that point that testing -- that our

Well,

I'm saying that from what we had up to that

We had made up

defensive theory would be to, as I say being

repetitious,

evidence that might be beneficial to the defense, but

only that evidence that would have been to the state's

benefit.

to attack the state for not having examined

We didn't want additional testing because we

15 16

felt like it might be incriminating, and it would

detract from the -

evidence remains in the evidence locker room.

over there and we say we want these additional items

tested.

officer.

sure,

we wanted the evidence tested by, and I would assume

that whoever we took it to would be a defense expert,

and under the Ake case then it couldn't be disclosed

of course, we

you know,

the We go

The evidence custodian is a law enforcement They would have allowed us to,

you know,

I'm

to take that evidence and take it to anyone that

BETTY TATE,

3101 TOWNBLUFF DR. #923,

PLANO, TX.

972 596-9442

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the result couldn't be disclosed to the state. But that, we felt certain, would prompt Mr.

2 3

Mann,

the district attorney,

because certainly he would have the information that the

defense would have taken from the evidence room items

that had not been tested by DNA, and he couldn't find

out what the results were, so he's going to do his own

tests,

happen.

and as

to do additional testing

say, that's not what we wanted to

Let me ~sk you this, Mr. Comer.

There were some

knives found at the c

Yes.

Those knives were never tested by the state for

DNA?

Correct.

Suppose that you had had those knives tested,

suppose that the result came back showing Mr. Skinner's

blood was on the knives, or on a knife,would that

result have been incriminating to Mr. Skinner?

Mr. Skinner's blood?

No.

and shown that there was DNA on those knives that did

not belong to Mr. Skinner, did not belong to Twila

Busby, did not belong to Elwin Caler, did not belong to

Randy Busby, would that have been beneficial to the

me scene, correct?

and

If the results of the testing had come back

BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX.

972-596-9442

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defense?

Certainly.

There were hairs that were not tested by the state,

correct?

were hairs not tested by the state.

Beg your pardon?

I said we just read that Mr. Courtney said there

were hairs not tested by the state.

We just read Mr. Courtney saying that there

Going back,

this was so many years,

I thought that

there were some hairs on the end of the axe handle,

which was alleged to have been the murder weapon,

that those hairs had been tested.

hairs at the crime scene on Twila Busby's body,

hand, et cetera,

me for the momenti assume that with me for the moment,

if you will.

assume that.

to be the hair of a person who was a stranger to that

household,

the victims, would that have been

defense?

Well,

and

I may be wrong.

assume for me for a moment that there were

}

Okay.

that were not tested.

in her

Assume that for

In her hand that was not tested?

If you had had that hair tested and it turned out

it was not Mr. Skinner or it was not any of

ficial to the

Correct.

BETTY TATE,

3101 TOWNBLUFF DR.

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PLANO, TX.

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And suppose there was a cup towel,

as I recall,

that was found in a plastic bag that had some substance

on it that might have been blood.

tested and found to be the -- contain the DNA of some

person who was a stranger to the household and it was

not one of the victims and was not Mr. Skinner, would

that have been helpful to the defense?

Okay.

All right,

Had that towel been

I'm going to switch subjects on you

again, Mr. Comer.

We're going to go to what we refer to

as our conflict of interest claim. You had prosecuted Mr. Skinner for tw6

12 13

felonies while you were the district attorney,

Yes.

And one was assaulting a police officer and the

other was an unauthorized use of a motor Nehicle?

Yes.

You discussed in your affidavit,

Exhibit 73 THE COURT:

correct?

Plaintiff's

Just ask him the question that you

want to ask him.

evidence.

conversation with Mr. Skinner about whether or not your

prior prosecution of him was something that he was

(By Mr.

BETTY TATE,

(Inaudible) .

Stop referring to the

Robinson)

Mr. Comer, did you ever have a

3101 TOWNBLUFF DR.

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TX.

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CORPUS Only the Westlaw citation is currently available. United States District Court, N.D. Texas, Amarillo Division. Henry W. SKINNER, Petitioner, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. Henry W. SKINNER, Petitioner, v. Douglas DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. No. 2:99-CV-0045. Feb. 22, 2007. Douglas Robinson, Skadden Arps Slate Meagher & Flom, Washington, DC, Robert C. Owen, Owen & Rountree, Austin, TX, for Petitioner. Katherine D. Hayes, Office of the Texas Attorney General, Capital Litigation Division, Georgette Patrice Oden, Office of the Texas Attorney General, Austin, TX, for Respondents. Governor of Texas, Office of the Governor, Capitol Station, Austin, TX, pro se. Director--Texas Department of Corrections, Director, TDC, Huntsville, TX, pro se.

ROBINSON, J. *1 Came for consideration the petition for a writ of habeas corpus filed by petitioner HENRY W. SKINNER, a state inmate under sentence of death. On September 29, 2006, the United States Magistrate Judge issued a Report and Recommendation in this cause, recommending therein that petitioner's application for a writ of habeas corpus be denied. On November 17, 2006, petitioner filed objections to the Report and Recommendation. The undersigned United States District Judge has made an independent examination of the record in this case. The objections filed by petitioner are without merit and are hereby OVERRULED. The Magistrate Judge's Report and Recommendation is hereby ADOPTED. Accordingly, the petition for a writ of habeas corpus is hereby DENIED. IT IS SO ORDERED. FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AVERITTE, Magistrate J. This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge follow:

Warden TDCJ, Huntsville, TX, pro se. Clerk Supreme Court, Supreme Court of the United States, Office of the Clerk, Washington, DC, pro se. Clerk Clerk, U.S. Court of Appeals, Fifth Circuit, New Orleans, LA, pro se. ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION and DENYING PETITION FOR A WRIT OF HABEAS

I. NATURE OF THE CASE The petitioner, HENRY W. SKINNER, a state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254. II. PARTIES Petitioner, Henry Skinner, is an inmate in the

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custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent, Douglas Dretke, is the Director of TDCJ-CID. III. PROCEDURAL HISTORY Petitioner was convicted by a jury of capital murder, and his punishment was assessed at death by lethal injection. State v. Skinner, Cause No. 0005216 (District Criminal Court No. 3 of Tarrant FN1 County, Tex. March 22, 1995). The case was appealed to the Texas Court of Criminal Appeals, and the Court of Criminal Appeals affirmed the conviction and death sentence in a published opinion. Skinner v. State, 956 S.W.2d 532 (Tex.Crim.App. Sept.10, 1997). Petitioner filed an initial state application for writ of habeas corpus on March 26, 1998. The Texas Court of Criminal Appeals dismissed this initial application based upon the trial court's determination that it was untimely filed. Petitioner then filed his initial federal habeas petition in this Court on February 5, 1999. On August 1, 2000, this federal proceeding was administratively closed and all proceedings were stayed so petitioner could return to state court to once again present his habeas claims. Petitioner became eligible to return to state court because Texas law had changed to allow previously untimely state applications to be considered on their merits. See TEX.CODE CRIM. PROC. ANN. art. 11.071 Â§ 4A(f) (Vernon's Supp.1999). FN1. The venue was changed from Gray County to Tarrant County. Petitioner's second state habeas application was filed on February 27, 2001. On October 10, 2001, the Court of Criminal Appeals dismissed the application, invoking the rule of habeas corpus abstention, on the basis that there was a pending federal petition. Ex parte Skinner, No. 20,203-04 (Tex.Crim.App. Oct. 10, 2001). The state court dismissed the state petition on this ground even though the federal court had stayed the case solely to allow petitioner's claims to be presented to the state

courts. *2 Petitioner then returned to federal court and filed another habeas corpus petition on July 19, 2002. Respondent filed a motion to dismiss the petition, arguing petitioner's claims remained unexhausted and that this Court should dismiss the petition, rather than hold it in abeyance, in order for petitioner to return yet again to state court to exhaust his claims. On September 12, 2002, the undersigned issued a Report and Recommendation, recommending Respondent's motion to dismiss be denied. Specifically, this Court held petitioner should not be required to return to state court and again attempt to exhaust his state remedies since this Court had previously stayed all federal proceedings for the express purpose of allowing petitioner to re-file in state court and exhaust his state court remedies, only to have the state courts refuse to address the merits of the case. In recommending denial of the motion to dismiss, the undersigned also found that, should the federal petition be dismissed rather than stayed, the one year AEDPA statute of limitations would have run, and limitations would have to be equitably tolled for the federal courts to consider any future federal petition. Thus, while Respondent had stated that it would not oppose equitable tolling and would not raise the statute of limitations as a defense in the future, petitioner could not be guaranteed any subsequent federal court hearing the matter would accept such a waiver or would not FN2 otherwise find the petition to be time barred. The district court overruled objections filed by Respondent and adopted the Magistrate Judge's recommendation by Order, dated September 27, 2002. FN2. The undersigned acknowledges that it is very probable respondent's statement that it would not oppose equitable tolling as to any future federal petition would result in petitioner being able to pursue federal habeas corpus relief. As probable as that scenario is, however, it still is not a guarantee that this Court, the Court of Appeals,

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or the Supreme Court, might eventually decide otherwise or determine that, as a matter of law, equitable tolling was not available. Since the initial federal habeas case was administratively closed and held in abeyance solely to allow petitioner to exhaust his state habeas corpus remedies and the state court refused to entertain such application, there is no logical reason petitioner should be put at risk of forfeiting his right to seek federal habeas corpus relief, however slight that risk might be. Petitioner then filed an amended petition for writ of habeas corpus on December 2, 2002. Respondent filed an answer on July 25, 2003, and furnished the state court records. Petitioner filed a reply on December 5, 2003. On May 18, 2004, this Court granted, in part, petitioner's December 5, 2003 motion for discovery. Pursuant to that Order, a deposition was taken on July 21, 2004. On November 16-18, 2005, an evidentiary hearing was held, covering an agreed-to list of disputed issues submitted by the parties on October 3, 2005. These disputed issues included facts relevant to petitioner's first through fifth and eighth claims for relief. Both parties filed post-hearing briefs on March 6, 2006, and reply briefs on March 14, 2006. IV. RULE 5 STATEMENT Respondent asserts petitioner has failed to exhaust his state court remedies on all of the claims he raises in this Court. Respondent has reurged failure to exhaust throughout the proceedings in this Court and has not waived exhaustion. As set forth in paragraph VIII., the undersigned is of the opinion this case should not be dismissed based upon any alleged failure to exhaust. V. ISSUES Petitioner raises the following nine claims: 1. Petitioner was denied his due process rights when the prosecution elicited testimony from a

witness that gave the false impression that petitioner had confessed to murder; *3 2. Petitioner was denied his due process rights because the State, through threats and intimidation, caused a witness to give false testimony regarding petitioner's condition on the night of the crime; 3. Petitioner was denied his due process rights because the prosecutor failed to disclose that a witness was threatened by law enforcement; 4. Petitioner's rights under the Sixth Amendment were violated because he was denied the effective assistance of counsel during trial; 5. Petitioner was denied his Sixth Amendment right to counsel because the his lead defense attorney had an actual conflict of interest that petitioner did not waive; 6. Petitioner was denied his Sixth Amendment right to counsel during the motion for new trial stage of the proceedings; 7. Petitioner was denied his due process rights because the trial court ordered petitioner to disclose his toxicology expert's work product to the State; 8. Petitioner's was denied his Sixth Amendment right to counsel because the Sheriff read and copied privileged correspondence between petitioner and his attorneys while petitioner was incarcerated in jail awaiting trial; and 9. The trial court violated petitioner's Sixth Amendment right to consult with counsel by ordering the bailiff to separate petitioner from his attorneys during recesses at trial. VI. STANDARD OF REVIEW The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. Â§ 2254, provide:

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(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted 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 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 a State court proceeding. 28 U.S.C. § 2254(d) (2000). Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. th Martin v. Cain, 246 F.3d 471, 475 (5 Cir.), cert. denied, 534 U.S. 885, 122 S.Ct. 194, 151 L.Ed.2d 136 (2001). Under the “contrary to” clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-3, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the “unreasonable application” clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. Under Williams, a state court unreasonably applies Supreme Court precedent if it “unreasonably extends a legal precedent from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407.

*4 Section 2254(d)(2) concerns questions of th fact. Moore v. Johnson, 225 F.3d 495 (5 Cir.2000), cert. denied, 532 U.S. 949, 121 S.Ct. 1420, 149 L.Ed.2d 360 (2001). Under § 2254(d)(2), federal courts “give deference to the state court's findings unless they were “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” th Chambers v. Johnson, 218 F.3d 360, 363 (5 Cir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002, 121 S.Ct. 508, 148 L.Ed.2d 473 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This statute applies to all federal habeas corpus petitions which, as with the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.1997). When, however, there has been no resolution on the merits by the state courts, the federal courts do not utilize the deferential standards under the AEDPA and review is de novo. Solis v. Cockrell, th 342 F.3d 392, 394 (5 Cir.2003); Miller v. Johnth son, 200 F.3d 274, 281 n. 4 (5 Cir.2000). Since there has been no adjudication on the merits by the state courts of any of petitioner's claims in this federal position, except for petitioner's claim number 7 involving disclosure of attorney work product, then the AEDPA deferential standards are inapplicable to petitioner's claims 1-6 and 8-9. VII. FACTUAL BACKGROUND The Texas Court of Criminal Appeals recited the following factual background in its opinion on direct appeal:

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Appellant lived with his girlfriend, Twila Busby, and her two mentally-retarded sons, 22-year-old Elwin Caler and 20-year-old Randy Busby. Around 9:30 on the evening of December 31, 1993, Twila and appellant called a friend of Twila's, Howard Mitchell, and told him they wanted to go to his New Year's party, but needed a ride there. Between 10:15 and 10:30 p.m., when Mitchell went to pick up the pair, he found appellant passed out on the couch and was unable to wake him. Apparently, appellant had been drinking. Leaving appellant in his stupor, Twila and Mitchell went to Mitchell's trailer where a party was in progress. Twila was followed around at the party by her drunken uncle who made rude sexual advances toward her and generally agitated her until she asked Mitchell to take her home. Mitchell drove Twila home between 11:00 and 11:15 p.m., and left. At midnight, Police Officer Fred Courtney was dispatched to investigate a stabbing at an address located across the alley from appellant's residence. He arrived to find Elwin Caler sitting on the porch of a neighbor's house with a blanket pressed against his side. Elwin had a mortal stab wound under his left arm and superficial wounds to his right hand and stomach. He was taken to the hospital where he died at 12:45 a.m. *5 Four blocks away, also at midnight, appellant knocked at the door of his former girlfriend, Andrea Reed. Reed asked appellant to leave, but he entered the house and told her that she had to help him because he had been stabbed and shot. Appellant's shirt and pants had a great deal of blood on them. Appellant removed his shirt, but Reed could find no injuries except for a bleeding cut in the palm of his right hand, which she agreed to suture. Reed and appellant conversed for almost three hours during which time appellant made a series of inconsistent statements about the cause of and

events surrounding his injury. At one point Reed attempted to leave the room to call the police, but appellant stopped her and threatened to kill her. Reed told him she was going to call Twila to ask her what happened and appellant claimed that he caught Twila in bed with her ex-husband and fought with him. Eventually, appellant offered to tell Reed what really happened if she would promise not to reveal it to anyone. When Reed promised not to tell, appellant stated that he thought he had kicked Twila to death. While appellant was at Reed's house, the police were investigating Elwin's stabbing. As they approached the house where Elwin lived with his mother, brother, and appellant, the police noticed a trail of blood spots on the ground running from the front porch to the fence line. There was a blood smear on the glass storm door and a knife on the front porch. Upon entering the residence, the police found Twila's dead body on the living room floor. It was later determined that she had been strangled into unconsciousness and subsequently beaten at least fourteen times about the face and head with a club. An ax handle stained with blood and hair was leaning against the couch near the body and a black plastic trash bag containing a knife and a towel with wet brownish stains on it was laying between the couch and the coffee table. Officer Morse Burroughs proceeded to the bedroom where Elwin and Randy usually slept in bunk beds. He found Randy's dead body laying face down on the upper bunk, covered by a blood spotted blanket. Randy had been stabbed in the back three times. A door leading out of the bedroom and into a utility room yielded further evidence. Burroughs noticed a bloody handprint located about 24 inches off the floor on the frame of this door. He also noted a bloody handprint on the door knob of the door leading from the kitchen to the utility room and a handprint on the knob of the door exiting from the utility room into the backyard.

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The police arrested appellant at Reed's house at approximately 3:00 a.m. They found him standing in a closet wearing blood-stained socks and blood-stained blue jeans. He appeared intoxicated. A toxicological test on a blood sample appellant voluntarily provided at 5:48 a.m. showed appellant to have 0.11 milligrams of codeine per liter of blood and a blood alcohol level of 0.11 percent. Tests on the blood on appellant's clothing was found to belong to Twila and Elwin. In a tape-recorded statement to the police, appellant claimed to remember little of what happened on the night of the murders after he fell asleep on the couch. Autopsy evidence showed all of the murders to have been committed in the same general time frame. *6 Skinner, 956 S.W.2d at 4-5. VIII. PROCEDURAL ISSUES Respondent asserts none of petitioner's claims should be considered on their merits because they were not exhausted at the state level. Respondent argues that, because the state court dismissed petitioner's two state habeas applications on procedural grounds, petitioner's federal habeas petition should be dismissed without prejudice to allow petitioner to exhaust his claims at the state level. Alternatively, Respondent asserts that if this Court opts not to dismiss the petition, the only alternative is for all claims to be denied on their merits by this Court. Under 28 U.S.C. § 2254(b)(1), an application for writ of habeas corpus shall not be granted unless it appears the applicant has exhausted the remedies available in the state courts or there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the applicant's rights. In his reply, petitioner contends he has exhausted his state court remedies. First, petitioner argues he exhausted his state court remedies because, when he filed his initial federal habeas petition in this Court on February 5, 1999, there were no state remedies available to him because his state application had been dis-

missed. Second, petitioner argues his claims were again fully exhausted when he returned to state court and re-attempted to have his claims considered because the Court of Criminal Appeals had a “full and fair opportunity” to consider the claims, but dismissed the petition under the habeas abstention rule because there was a pending federal petition. As support for this position, petitioner cites th Carter v. Estelle, 677 F.2d 427 (5 Cir.1982). In Carter, the Fifth Circuit held that Carter had met exhaustion requirements when he attempted to file a state application for writ of habeas corpus, but his application was dismissed by the Texas Court of Criminal Appeals under the state doctrine of habeas abstention because his federal case was still pending. Specifically, the Fifth Circuit, citing to the then applicable statute which, like the AEDPA, stated that exhaustion was not required if there was an absence of state corrective process or circumstances render the process ineffective to protect a prisoner's rights, held that as there was at the point Carter filed his state application no available, adequate state remedy, exhaustion was not required. Id. at 450. In essence, then, petitioner is arguing there is an absence of available state corrective process and/or that circumstances exist that render the process ineffective to protect his rights. See 28 U.S.C. § 2254(b)(1)(B)(I) & (ii). Admittedly, Carter is a pre-AEDPA case, and the facts are not identical to the ones in the instant case. However, Carter has been cited with approval by the Fifth Circuit in AEDPA cases, albeit under different factual circumstances. See Orman v. Cain, 228 F.3d 616, 620 n. 6 th (5 Cir.2000), Dilworth v. Johnson, 215 F.3d 497, th 501 n. 3 (5 Cir.2000). In the instant case, petitioner attempted to fully exhaust his state court remedies two times. The first state habeas petition was dismissed as having been filed out of time. It is not at all clear that a state petition dismissed as untimely would constitute adequate exhaustion. Instead, dismissal of a petition as untimely would more properly be characterized as a dismissal on a procedural ground rather than a dismissal on the

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merits. The second state petition, however, was filed after the State of Texas changed the law to allow petitioners, such as petitioner Skinner, an opportunity to re-file state habeas applications that FN3 were previously deemed untimely. This Court then stayed the federal proceedings specifically to allow petitioner a second attempt to seek state habeas relief. In doing so, this Court declined to dismiss the case in order to prevent petitioner's oneyear filing limitation under the AEDPA from being considered as having run before he could re-file in federal court. The state court opted to dismiss the state application under the state habeas abstention rule and declined to consider the merits. Under the rationale of Carter, it does appear that there was no available, adequate state remedy, at least at the time petitioner filed his second state habeas application and when it was dismissed. FN3. Had the Texas legislature not passed this statute allowing petitions which had been previously dismissed as untimely, an opportunity to be heard in the state courts, an interesting question would have been presented concerning whether petitioner would be entitled to seek federal habeas corpus relief or would be procedurally barred from seeking such federal habeas corpus relief if his only state court petition had been dismissed on procedural grounds as untimely. *7 Respondent, however, contends a state corrective process is still available to petitioner because this Court could dismiss the federal petition and respondent has stated he will not assert the oneyear time limitation as a procedural bar if and when petitioner returns to federal court. Furthermore, respondent argues that this Court could prospectively issue an order stating it intends to equitably toll the statute of limitations on any potential future federal petition filed by petitioner after returning to state court. Some support for respondent's position can be found in the statute itself, as § 2254(c) states that a petitioner will not have been deemed to have ex-

hausted his available state court remedies if he has the right under state law to raise, by any available procedure, the question presented. See 28 U.S.C. § 2254(c). And Respondent, citing Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), argues that petitioner's claims have not been properly exhausted because they were not presented to the state court in a manner that the state court, following its own procedural rules, could have considered them. But, this language in Carpenter was dicta and was largely quoted from the earlier case of O'Sullivan v. Boerkel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), in which the Supreme Court held that, in order for the exhaustion requirement to be fulfilled, a state prisoner is required to file a petition for discretionary review to the state supreme court when it is part of the ordinary appellate process in that state. It remains the opinion of the undersigned, however, that petitioner Skinner has attempted to file a state habeas application with the highest state court in good faith. And, while there may still be some theoretical procedure by which petitioner could raise his claims in state court a third time, it would be at the risk of suffering dismissal of a timely filed federal petition. Instead, this Court finds the Fifth Circuit's holding in Carter v. Estelle to be largely on point and persuasive. Accordingly, this Court finds that it should consider petitioner's claims on their merits, because there was an absence of available state corrective process at the time that petitioner filed his second state habeas application and that circumstances exist that render the process ineffective to protect his rights at this time, given that the AEDPA's one year statute of limitation for filing a federal habeas petition would run should this Court dismiss petitioner's current petition with no absolute assurance that a future federal court, whether trial court or appellate court, would grant petitioner equitable tolling. See 28 FN4 U.S.C. § 2254(b)(1)(B)(I) & (ii). FN4. In Ex parte Soffar, 143 S.W.3d 804,

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804-5 (Tex.Crim.App.2004), the Texas Court of Criminal Appeals did modify its habeas abstention doctrine, holding that it would from that point on consider subsequent state court writs if the proceedings were stayed in federal court. Any state writ petitioner might file in the future, however, would not be a subsequent writ because no state writ has been considered on its merits as of yet. Alternatively, even if petitioner has not properly exhausted his state remedies and has not met the requirements of 28 U.S.C. Â§ 2254(b)(1)(B)(I) & (ii), under Â§ 2254(b)(2) this Court may also deny petitioner's unexhausted claims on their merits. As this Court has determined that petitioner's claims are without merit, they may properly be addressed and denied on their merits notwithstanding any failFN5 ure to exhaust at the state level. FN5. The record before this Court does indicate that petitioner did exhaust the portion of his seventh ground for relief in which he alleges that his due process rights were violated because a defense expert's work product was provided to the prosecution because petitioner made this same due process claim on direct appeal. See Skinner, 956 S.W.2d at 537. This Court has determined that this claim is also without merit. IX. EXAMINATION OF THE ISSUES A. False Testimony Claims Grounds 1, 2, and 3 *8 In his first ground for relief, petitioner asserts the State knowingly elicited false testimony from one of its witnesses, Andrea Reed. Petitioner asserts this false testimony was material because it gave the false impression petitioner had confessed to killing Twila Busby and because it directly contradicted the defense theory that petitioner was too intoxicated to have been physically and mentally

capable of committing the murders. In his second ground for relief, petitioner claims witness Reed gave this false testimony because she was threatened and intimidated by authorities. In his third ground for relief, petitioner alleges he was denied due process because the prosecutor did not disclose that witness Andrea Reed was threatened by agents of the State. Applicable Facts At the evidentiary hearing held in November of 2005, Andrea Reed testified. In her testimony, she recanted portions of a statement she had given to the police the day petitioner was arrested and she recanted several statements she made when testifying at petitioner's trial. Specifically, at the federal evidentiary hearing she stated that, while she had testified at trial that she did not know how petitioner entered her trailer shortly after midnight, January 1, 1994, the truth was that she let him in the trailer, and that it was necessary for her to help him up the porch and into the trailer. She further testified she had lied at trial when she said petitioner had taken off his shirt and laid it on a chair. She said the truth was that he had unsnapped the shirt but she had taken it off of him and laid it over the top of a chair. (Evidentiary hearing, vol. I, p. 228-29). She also testified she lied at trial when she stated petitioner went to the bathroom in her trailer on his own, and the truth was that she helped him down the hall into the bathroom and then helped him back down the hall afterwards. (E.H.I:230-31). Reed testified she lied at trial when she stated petitioner was heating up sewing needles and attempting to bend them so he could sew up his hand, and the truth was that she was doing that. (E.H.I:229-30). Reed also stated that, contrary to her trial testimony, petitioner never said that he would kill her if she tried to call anybody, but only said that she should not call anyone. (E.H.I:231). Reed further stated petitioner swore her to secrecy about every story that he told her, not just the story that he kicked Twila to death. (E.H.I:231-32). Reed did acknowledge that, while she assisted petitioner out of his shirt, he could have taken it off himself but for

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the injury to his hand. (E.H.II:287). Reed also testified at the federal evidentiary hearing that, after the police officers arrived at her home on January 1, 1994, to arrest petitioner, Officer Katie Gerhardt told her she could be arrested if she had allowed petitioner into her home knowing there were warrants against him. (E.H.I:233-34). Reed testified Gerhardt did not believe the answers she was giving to questions and kept asking her how petitioner got into her house. (E.H.I:235-36). Reed stated she was frightened after she heard Gerhardt tell a neighbor, Gerry Douglas, who was outside, to stay away from the (Reed's) house because it was a triple-homicide crime scene. (E.H.I:238). Reed also stated she was told she could not leave her hotel room in Fort Worth during the trial, and before trial she was given a piece of paper from one of the prosecutors, Tracy Jennings, and was told that was what she was supposed to say in her testimony. (E.H.I:243-44). Reed testified she made incorrect statements in her written statement to the police, and at trial because she did not want the authorities to think she was involved with Skinner and did not want to go to jail. (E.H.I:241) *9 Respondent called several witnesses to rebut Reed's evidentiary hearing testimony. Gerry Douglas testified he was Reed's neighbor and that his trailer was right behind her trailer. He further testified he was outside on January 1, 1994, when petitioner was brought out of Reed's house by police officers. He stated Reed came back to his house at around 3:00 or 4:00 a.m. hysterical and scared, and told him she had been down to the police station to make a statement. Douglas testified Reed told him petitioner had come barging into her house and had run into the back bedroom, that she was upset because petitioner had threatened her, telling her that if she told anyone where he was hiding that he would kill her and her kids. (E.H.III:749-53). Connie Neighbors, petitioner's ex-wife, testified she was Reed's best friend at the time of the murders, that Reed came to the house where she (Neighbors)

was staying at around 8:00 or 8:30 a.m. on January 1, 1994, that Reed practically broke the door down trying to get in, and that Reed was shaking and crying because she was frightened. Neighbors testified Reed told her that morning that petitioner had been to her house, had told her that he thought he had killed Twila and the boys, he wanted her to sew up his hand, and he had threatened her and her children if she called anyone. (E.H.III:804-07). At no time did Reed say anything about being threatened or coerced by the police department or the district attorney's office. (E.H.III:808). The parties stipulated that, if called to testify, Andrea Reed's daughter, Jessica Reed, would testify that, while she no longer recalls what she wrote in her statement, what she stated in her statement to the police on January 1, 1994, is what happened that morning. (E.H.III:810-11). In her statement to the police, Jessica Reed stated she was watching television when she heard someone banging loudly on the front door, that her mother asked who it was, that petitioner responded it was him, and that petitioner had entered the house by the time her mother reached the living room. (Resp. Hearing Ex. # 6). In this statement, Jessica Reed also stated that, at some point, she heard petitioner ask her mother where the bathroom was and then stated that he knew where it was and that, after petitioner exited the bathroom, her mother told him to go back to the living room. Id. Former District Attorney John Mann testified he never instructed Reed how she should testify and never personally interviewed her before she took the stand at the trial. (E.H.III:728-29). He also testified that, while in Fort Worth, all of the people staying at the Holiday Inn were encouraged to exercise caution and not to go out after dark because it was not a good part of town. He said there was a shooting incident near the motel during the trial. (E.H.III:729-31). Connie Lockridge testified she was an officer with the Pampa police department at the time of the murders and that she interviewed Reed at the police station on January 1, 1994 and

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took her written statement. Lockridge testified she viewed Reed as a victim because she was obviously frightened for her and her children's safety. Lockridge testified she never warned Reed that she could be prosecuted as an accessory, and she did not believe Reed could be prosecuted as an accessory based on her behavior that morning. (E.H.III:769-75). Finally, she testified she did not threaten or even try to persuade Reed regarding what she said in her written statement. (E.H.III:788). *10 Katie Gerhardt testified that, at the time of the murders, she was a sergeant with the Pampa police department, that she went to Reed's home in the early morning hours of January 1, 1994, that she did tell neighbors to stay away from Reed's home because it was a murder crime scene, that she did not ask Reed whether petitioner had an accomplice, that she did not recall ever telling Reed she could be charged as an accessory or for harboring a fugitive, and that she never told Reed her daughter would not be subpoenaed if Reed testified as the District Attorney wanted her to testify. Gerhardt further testified Reed was very nervous, was pacing, and kept attempting to tell the police things, although she was told that she could give a statement later. (E.H.III:813-16, 819). Gerhardt testified she never required Reed to stay in the same hotel room with her in Fort Worth, but offered to stay in the same room with Reed because Reed had said she was afraid petitioner would have her killed. (E.H.III:817-18). Tracey Jennings testified at the hearing and stated she was an assistant district attorney at the time of petitioner's trial. Jennings further testified she talked to Reed about her testimony before trial in Fort Worth, that she would have only shown Reed her own written statement, rather than a prepared script, and that Reed never told her that her written statement was inaccurate or was not true. (E.H.III:822-23, 829-30). She also testified she remembered the shooting incident near the motel and remembered that everyone was cautioned about be-

ing careful and not going anywhere alone or at night. (E.H.III:824). Applicable Law The Supreme Court has held that the presentation of false evidence at trial, as well as the admission into evidence at trial of false evidence that, even though not solicited, is not corrected, violates a criminal defendant's due process rights, if the reliability of a given witness may be determinative of guilt or innocence. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). This is true whether the nondisclosure was intentional or through negligence. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In order to prevail on a claim that his constitutional rights were violated by the presentation of false testimony, a petitioner must establish not only that the testimony was actually false, but also that it was material and that the prosecution knew it was false. Napue v. Illinois, 360 U.S. at 271. The Supreme Court has also stated that a new trial is dictated only when the false testimony could, in any reasonable likelihood, have affected the judgment of the jury. Id., See Knox v. Johnson, th 224 F.3d 470, 478 (5 Cir.2000) (holding that any alleged perjured testimony by witness was not material because, in part, the witness' relevant testimony was corroborated by other witnesses' testimony). Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the suppression by the State of evidence favorable to the accused and material to either guilt or punishment violates a defendant's due process rights under the federal constitutional. Under Brady, the prosecution has a duty to turn over to the defense both exculpatory and impeachment evidence, whether or not it was requested by the defense. United States v. Bagley, 473 U.S. 667, 682, 685, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Such evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have

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been different. A reasonable probability of a different result is shown when the suppression of evidence undermines confidence in the verdict. Bagley, 473 U.S. at 678; Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir.1998). Analysis *11 In his first ground for relief, petitioner alleges the State knowingly elicited false testimony when District Attorney John Mann questioned Reed about portions of her written statement taken out of context, thus creating a false impression. Particularly, petitioner alleges this occurred when, in response to his questions, Reed falsely testified that petitioner's story about kicking Twila to death was the only one he made her swear to keep secret. In his second ground for relief, petitioner alleges the State created false evidence because police officers threatened and intimidated Reed, thereby causing her to lie at trial about what occurred in her home on January 1, 1994. In his third ground for relief, petitioner alleges the State violated Brady because it failed to disclose to the defense the threats made by the police to Reed. For the reasons set forth below, petitioner is not entitled to federal habeas corpus relief. First, it has not been shown that Andrea Reed's trial testimony was perjured or was false. Second, it has not been shown that Andrea Reed was threatened or coerced by state authorities. 1. Napue claim With regard to petitioner's first ground for relief, petitioner alleges the State presented testimony at trial from Reed that was placed in a â&#x20AC;&#x153;false light.â&#x20AC;? Specifically, petitioner asserts District Attorney Mann questioned Reed in such a way that it falsely appeared petitioner had told Reed three distinct stories about what had happened. Petitioner contends the stories were not distinct, but, instead, the stories about petitioner saying he found Twila in bed with her ex-husband, about a person named Ricky Palmer, and about killing Twila, were all one story told by petitioner. (Petition at 24). Petitioner further alleges prosecutor John Mann elicited false

testimony from Reed when she testified petitioner only asked her to swear not to reveal the story he told about kicking Twila to death, when the truth was that he (petitioner) made her swear not to tell anyone about all of the stories he told Reed on January 1, 1994. (Petition at 25-6). Petitioner argues this false testimony was material to his conviction because Mann argued in his closing summation that petitioner told Reed that he was telling the truth and swore her to secrecy before he told her that he thought he had killed Twila. (R. 30:1547-48). The portion of Andrea Reed's statement to the police involving the various stories, in relevant part, reads as follows: All the time I am helping him with his hand, about three hours, he is rambling, telling me different stories about what happened to him. The first story he told was that he and Twila were home when a Mexican, I think he said dude, that Twila knows, came to the front door and when he went to the door, the Mexican pulled a knife on him, so Hank pulled his knife, then he said again that the Mexican pulled a knife on him and was trying to cut his face so he put his arms and hands up to protect his face and that's how he got cut. Then he said he didn't know where these guys, one at the front and one at the back, came from. When he first started telling me the story there was only one guy.... *12 .... Then he'd tell me that he knew I was the only true friend he'd ever had and that he wasn't going to lie to me and he told me he would tell me the truth about what happened. He told me that he had come home from work and found Twila in bed with her ex-husband. He said he punched him, the ex-husband, in the nose then kicked him out of the house. Then he told me I had to swear to God that I would not tell anyone what he was going to tell me. I told him he knew better than that, that I don't talk out of school. That's when he said he thought

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he had killed Twila. I asked him how and he said that he had tried to kick her to death.... .... He cry and make me promise not to tell nobody and he'd tell me things that were real important to him from things like he loved me to he killed Twila and each time he'd say something he'd make me promise not to tell. He told me that he was going to tell me the truth about what happened and I told him I could tell he was lying and he asked me how I could tell he was lying and I told him because his lips were moving. He then said that Ricky Palmer had broken into the house. That's all he said about Ricky, nothing about what happened after Ricky broke into the house.... .... One of the stories he told was that Twila had some cocaine dealers looking for her and they wanted her real bad. He also told me three or four times that a boom had hit him in the chest and x-rays showed he had spots on his lungs and didn't have much to live for anyway. (E.H., Resp.ex. # 2). On direct examination at trial, D.A. Mann elicited testimony from Reed that the first story petitioner told her was about a Mexican who came to the house. (R. 26:495-96). Mann then asked her about the next story petitioner told, and she testified that it was about two Mexicans who came to the house, one at the front door and one at the back door. (R. 26:497-99). Mann then asked Reed what petitioner said next, and she testified that “he kept telling me he would tell me the real story about what happened to his hand.” (R. 26:499). Mann later specifically asked Reed if petitioner said anything about Twila and her ex-husband. Reed responded that petitioner told him that he had caught them in bed, had hit the ex-husband in the mouth, and kicked him out the front door. Mann then immediately asked if petitioner ever gave another version of what happened, and Reed responded that he started a story about Ricky Palmer, but never finished it. (R. 26:500). Mann then asked her what pe-

titioner had said “had happened there.” Reed responded that petitioner told her that he thought he had killed Twila, after he told her she had to swear not to tell anyone. (R. 26:501). On re-direct, after defense counsel Kenneth Fields elicited testimony from Reed that petitioner had told her a number of times in connection with a number of stories that he was going to tell her the truth, District Attorney Mann asked Reed out of all the stories petitioner had told her that night, which story was it that petitioner made her (Reed) “swear to God not to reveal.” Reed responded that it was the story where he said that he thought he had kicked Twila to death. District Attorney Mann then asked Reed whether petitioner made her swear not to reveal any of the others or just the one. Ms. Reed's response was it was “[j]ust that one.” (R. 26:526-27, 528). *13 Petitioner argues District Attorney Mann knowingly elicited false testimony because his method of questioning Reed made it appear petitioner's statement that he thought he had kicked Twila to death was a separate story from the story about the ex-husband and the Ricky Palmer story, thus giving greater credence to the story about kicking her to death. Petitioner further argues District Attorney Mann elicited false testimony when Reed testified that the only story petitioner made her swear not to tell anyone was the story about killing Twila. A review of her written statement and her trial testimony, however, reveals that Mann's questioning of Reed followed her written statement very closely. During her trial testimony, Reed testified regarding the ex-husband, Ricky Palmer, and the “kicking Twila to death” stories one right after the other. Moreover, petitioner has not presented any evidence that the District Attorney had any reason to believe that the sequence of events as testified by Reed at trial was any less truthful than the events she outlined in her written statement. Petitioner next alleges District Attorney Mann presented false testimony when he allowed Reed to testify that petitioner only told her to swear not to tell anyone that he thought he had killed Twila,

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when Reed had stated later in her written statement that petitioner asked her to “promise” not to tell anyone the other stories. In considering this claim, it is noted that the parties treat the term “promise not to tell” and “swear not to tell,” synonymously. The semantical distinction between “promise” and “swear” may be slight or perhaps even may be without distinction to some. On the other hand, to others, there is a definite distinction between swearing and promising, and this distinction is magnified when the phrase “swear to God” is used. Consequently, while Ms. Reed, at different times during her four (4) page typewritten statement to the police may have stated petitioner would “cry and make me promise not to tell nobody and he'd tell me things that were real important to him from things like he loved me to he killed Twila and each time he's say something he make me promise not to tell,” there was only one time and only one place in her entire four-page statement, that Ms. Reed ever said petitioner made her “swear to God” not to tell what he was going to say and that was when petitioner told Ms. Reed he thought he had killed Twila by kicking her to death. Petitioner has not established the District Attorney knew or believed the testimony Ms. Reed gave at trial was false. See Kutzner v. Cockrell, 303 th F.3d 333, 337 (5 Cir.2002) (holding that the fact that false or perjured testimony is challenged by other evidence presented at trial or is inconsistent with prior statements does not establish the prosecution knew or believed that testimony to be false). Nor has petitioner shown that the District Attorney presented Ms. Reed's testimony out of context or in a false light. Accordingly, petitioner has failed to establish the prosecutor knowingly presented false testimony at trial. Petitioner's first ground for relief is without merit and should be denied. 2. Threats and/or coercion claim *14 With regard to petitioner's second ground for relief, in an apparent attempt to avoid the requirement under Napue that the State must know that testimony is false, petitioner alleges his due

process rights were violated because police officers threatened Reed and that these threats caused her to lie to authorities and testify falsely on a variety of subjects. Petitioner also alleges that, even if the threats made against Reed “were truthful and lawful at the time they were made,” and even if the police officers did not intend to cause Reed to commit perjury, if the threats gave her an “undisclosed motive to lie,” they created false evidence and petitioner is entitled to relief. Petitioner contends that, because police officers told Reed she could be arrested as an accomplice or for harboring a fugitive, because she was told her daughter would be subpoenaed to testify if she did not testify as expected, and because she was not allowed to leave the hotel during the trial and was given a script of her testimony, that Reed was motivated to lie at trial, minimizing the assistance she gave petitioner that night and testifying falsely that he threatened to kill her. As support for his claim that he is entitled to relief, petitioner cites to two cases in his amended petition: United States v. Sutth ton, 542 F.2d 1239 (4 Cir.1976), and Ex parte Brandley, 781 S.W.2d 886 (Tex.Crim.App.1989). In Sutton, the Fourth Circuit reversed a conviction where the prosecutor had assured the jury in his closing statement that no-one had threatened the State's main witness, when in actuality an FBI agent had threatened to prosecute him, although he never intended to do so. The court held the government's failure to disclose the threat, coupled with the prosecutor's assurance that no-one had threatened the witness, violated Sutton's due process rights, even though the threat itself was not an illegal act. Id. at 1242-43. In Brandley, the Texas Court of Criminal Appeals reversed Brandley's capital murder conviction, holding his due process rights were violated because an investigator physically threatened a witness and had him sign a written statement when he could not read or write, and the defense was not told another person had confessed to the crime or that two other men were seen near the scene of the crime acting in a suspicious manner. Id. at 893-95. In his post-hearing brief, peti-

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tioner also cites to two Second Circuit cases, nd United States v. Wallach, 935 F.2d 445, 456 (2 Cir.1991), and Sanders v. Sullivan, 900 F.2d 601, nd 607 (2 Cir.1990). In these cases, that court held that, even if the prosecution does not know a witness lied at trial, it is a constitutional violation if the testimony was material and, but for the perjured testimony, the defendant would most likely not have been convicted. In Sanders, however, the court acknowledged that many other circuits, including the Fifth, do not recognize a constitutional violation based solely on perjured testimony, unless the State knew the testimony was false. Sanders, 900 F.2d at 605. See Chambers v. Johnson, 218 th F.3d 360, 364 (5 Cir.2000). *15 Even if this Court was bound by the decisions in these cases, which it is not, none of these cases support petitioner's contention that he is entitled to relief if, in fact, Andrea Reed had lied at trial, even if the State did not know that the testimony was false. First, no prosecutor at petitioner's trial assured the jury that Reed had not lied, and there were numerous witnesses and pieces of evidence that supported the State's case against petitioner other than Reed. Consequently, while Reed's testimony was important to the state's case, it was not so critical that the petitioner could not have been convicted without it. This is particularly so since much of Reed's testimony was not recanted. For example, it is not in dispute that petitioner traveled the 3 1/2 to 4 blocks to Reed's house, nor is it challenged that petitioner's shirt and pants were blood stained. Petitioner does not challenge that he made the statements attributed to him by Reed, but only challenges the context in which they were made, and whether the statement containing several stories was one continuous statement or several short statements. Next, there is no evidence Reed was physically threatened or forced to sign a statement she could not read. In any event, the evidence presented at the evidentiary hearing and the facts before this Court simply do not support petitioner's allegation that

Reed lied at trial or was threatened by the police. First, while Reed testified at the hearing that she lied in her written statement and at trial about a number of things, her recantation was directly contradicted by a number of disinterested witnesses. In particular, Gerry Douglas testified at the hearing that, contrary to her recantation, she told him, within a matter of hours after petitioner had been in her home, that petitioner had come barging into her house, on his own accord, had run into the back bedroom, and had threatened her, telling her that if she told anyone where he was hiding that he would kill her and her kids. Connie Neighbors testified Reed told her that petitioner had told her he thought he killed Twila and the boys, that he wanted her to sew up his hand, and he had threatened her and her children if she called anyone. Finally, in her statement, Jessica Reed testified petitioner entered the house on his own and, apparently, entered and exited the bathroom on his own. Thus, Douglas' and Neighbors' testimony at the hearing, as well as Jessica Reed's own statement given hours after the event, are in direct opposition to Reed's new and/or recanted testimony that she had to help petitioner perform tasks in her home and that petitioner never threatened her life. The Fifth Circuit has recognized that recanting witnesses should be viewed with suspicion by the courts. See Wilkerson v. Cain, 233 th F.3d 886, 893 (5 Cir.2000). Such natural suspicion, coupled with the significant testimony in opposition to Reed's recantation, renders petitioner's assertion that Reed testified falsely at trial with little evidentiary support. *16 In addition to the testimony set forth above which directly contradicts Reed's recanted testimony, several witnesses also testified in opposition to Reed's claims of threats and intimidation by the police. Both Gerhardt and Lockridge denied ever threatening Reed with prosecution, and Lockridge testified that, when she took Reed's written statement, she did not threaten or even try to persuade Reed regarding what Reed said in her written statement. Gerhardt also denied ever telling Reed that her daughter would be subpoenaed, and Gerhardt

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explained she never required Reed to stay in the same hotel room with her in Fort Worth. At the hearing, District Attorney John Mann testified he never instructed Reed on how she should testify, never personally interviewed her before she took the stand, and that, while in Fort Worth, all of the people staying at the hotel were encouraged to exercise caution and not to go out after dark. Tracey Jennings testified that she did not show Reed a prepared script for her testimony, and that she remembered that everyone at the hotel was cautioned about being careful and not going anywhere alone or at night. Consequently, the undersigned finds Andrea Reed's testimony at the evidentiary hearing on the issue of whether she was threatened or coerced and on the issue of whether her written statement to the police and her trial testimony were false not to be credible. The evidence before this Court is that Reed for reasons of personal remorse or for whatever reason recanted her statement to the police and recanted her trial testimony, but such recantation is not truthful. Further, assuming for purposes of argument that if, in fact, any of Ms. Reed's statement of January 1, 1994, or her trial testimony was slanted, it was not because of any actual threats from authorities, but because subjectively she did not want the police to believe she was involved in any manner with the murders, including assisting petitioner afterwards. Reed's subjective belief and fear about potential liability, however, is not a basis for habeas relief. As Respondent noted, the Supreme Court has held that coercive police activity is a necessary predicate to a finding that a confession is not voluntary within the meaning of the due process clause of the Fourteenth Amendment, and a confession cannot be deemed involuntary and thus inadmissible at trial pursuant based solely on a suspect's mental condition. Colorado v. Connelly, 479 U.S. 157, 163-5, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). While Connelly involved a statement taken from a suspect, rather than a statement or testimony from a witness, the comparison is appropriate. Petitioner asks this Court to grant relief because one of

the State's witnesses may have made some incorrect statements in her written statement and to the police, statements the State had no reason to believe were false, not because she was actually threatened by authorities, but because she subjectively believed she might be in legal trouble and/or wanted to keep her daughter from having to testify. Ms. Reed's own mental condition when she made her written statement and testified at trial to things she now states years later were incorrect is not a basis for federal habeas relief, especially where much of Reed's questioned trial testimony has, in fact, been corroborated by others. Petitioner is not entitled to relief on this ground, and it is recommended that it be denied. 3. Brady claim *17 In his third ground for relief, petitioner contends the State violated Brady v. Maryland because the prosecution did not disclose to defense counsel that police officers had threatened to arrest Reed and had threatened to subpoena her daughter to testify at trial. Petitioner asserts this information was favorable to him because it served as a motive for Reed to lie about the time she spent with petitioner on January 1, 1994. Petitioner also asserts this information is material because there is a reasonable probability that, had Reed not lied about his ability to do certain things that day at her home, he would not have been convicted. As noted earlier, petitioner has failed to present persuasive evidence that Reed was threatened by police officers. The officers in question specifically denied ever threatening to charge Reed with any crime or threatening to subpoena her daughter if Reed did not testify in a certain way. Further, some of Reed's other testimony at the evidentiary hearing was contradicted by other witnesses at the hearing, and her testimony on these issues is not credible. Assuming, however, for purposes of argument, that Reed did interpret statements from the police as threats and then in her own mind determined she should lie in her written statement and under oath at trial in order to minimize her involvement in the

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case, petitioner has failed to establish that any of these alleged lies are material. While petitioner contends that, without Reed's false testimony, the State would have been unable to contradict the toxicologist Dr. William Lowry's testimony that, in his opinion, petitioner was incapable physically and mentally of committing the murders due to his intoxication, there remains sufficient unrecanted testimony establishing petitioner's abilities at the time of the murders which contradict Dr. Lowry. Specifically, it is undisputed that petitioner walked the three and a half blocks to Reed's house shortly after the murders were committed, in the dark. (R. 26:506). Moreover, Reed has not recanted her trial testimony that petitioner told her he wanted her to stitch up his hand and that he instructed her not to call anyone, including Twila. (R. 26:493-95, 500). And, in his interview with the authorities on January 4, 1994, that was admitted into evidence at trial, petitioner admits that he awakened that night, realized his vodka bottle was gone, and went to Andrea's to see if she could fix his hand. (State's Ex. 59-A at 2, 4). In this same statement, petitioner told the authorities that they would be amazed what he did “mind-wise” when he was drunk, as he can read and do math and he even defended himself successfully in traffic court once, although he does not remember things afterwards. (State's Ex. 59-A at 17-8). All of this evidence contradicted Dr. Lowry's testimony that most people at the level of intoxication petitioner was at midnight would have been comatose or asleep and that, in any event, between 12:00 a.m. and 3:30 a.m., petitioner would have been in a stupor, with impaired consciousness, general apathy, and an inability to stand or walk. (R. 29:1369). Indeed, Dr. Lowry acknowledged on cross-examination at trial that he was surprised petitioner located Reed's house at midnight and that he asked Reed to clean and sew up his hand. (R. 30:1466, 1470). Accordingly, the evidence before this Court is that Reed's recanted testimony regarding petitioner's abilities shortly after the murders occurred is not material to the degree that, had defense counsel known that Reed was allegedly pres-

sured into giving this testimony, there is a reasonable probability petitioner would have not been convicted. Petitioner's third ground for relief is without merit, and it is recommended that it be denied. B. Ineffective Assistance of Counsel-Trial Stage Ground 4 *18 In his fourth ground for relief, petitioner alleges he received ineffective assistance of counsel at trial in violation of the Sixth Amendment. Specifically, petitioner asserts his trial counsel were ineffective for: 1) failing to effectively cross-examine State's witness Andrea Reed; 2) failing to offer an effective argument regarding the State's blood stain evidence; 3) failing to present evidence that petitioner is allergic to codeine; 4) failing to discover and present additional evidence of an alternate suspect; and 5) failing to have additional scientific tests performed. The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, in order to prove that his counsel was ineffective, a defendant must prove by a preponderance of the evidence both that counsel's performance was deficient and that this deficient performance prejudiced his defense. Id. at 687. Courts, however, should “indulge a strong presumption” that counsel's conduct falls within the range of reasonable assistance, and a defendant must overcome the presumption that an action is sound trial strategy. Id. at 689. To establish prejudice, a 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. A reasonable probability is a

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probability sufficient to undermine confidence in the outcome.” Id. at 694. In the context of ineffective assistance of trial counsel, the prejudice component of the Strickland test “focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Williams v. Taylor, 529 U.S. 362, 393 n. 17, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. The Court also noted in Strickland that a fair assessment of an attorney's performance requires one “to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. Petitioner has presented the Court with an excellent post-hearing brief which throughly addresses all of the issues raised heard at the evidentiary hearing, and the brief is particularly good in its analysis and presentation of petitioner's claims of ineffective assistance of counsel. In deciding the question of whether petitioner was deprived of the effective assistance of counsel, the Court must not only look to the specific deficiencies identified by petitioner and, as petitioner argues, the cumulative effect of those alleged deficiencies, but the Court must also examine the entire trial court record which provides a very definite picture of the overall effectiveness of counsel during the trial and ensures that particular allegations of ineffective assistance will not be taken out of context or unduly emphasized. As set forth above, in order for petitioner to prevail on an ineffective assistance of counsel claim, he must not only establish deficient performance, but must show prejudice. The prejudice prong cannot be intelligently addressed unless the alleged deficient performance is viewed in the context of the entire trial and considered in light of all of the evidence presented.

*19 This Court's review of the trial record reflects that both Mr. Comer and Mr. Fields provided petitioner with quality representation. The trial was hard-fought and trial counsel zealously presented their theory of the case as well as attacking the State's case and subjecting the State's presentation of evidence to proper adversarial challenge. The witnesses were effectively cross-examined and proper objections were made to the State's evidence. While the errors petitioner has identified are areas where, in hindsight, it can be argued that counsel should or should not have chosen a particular course of action, those errors simply do not rise above the level of the occasional mistake one would expect to occur infrequently in a trial which cannot be error free. This is definitely the case with respect to petitioner's allegations of failing to effectively cross-examine Andrea Reed, failing to effectively argue the State's blood stain evidence, and failing to discover and present additional evidence of an alternate suspect. The failure to provide their expert with evidence of petitioner's claim to be allergic to codeine presents a stronger claim, but it is still one which still does not rise to the level of deficient performance. The failure to have additional scientific tests performed has been shown to have been a reasonable trial strategy decision. With that overview, petitioner's specific claims of ineffective assistance of counsel are addressed below. 1. Failure to effectively cross-examine State's witness Andrea Reed Petitioner first contends co-trial counsel Kenneth Fields was ineffective in his cross-examination of Andrea Reed. He asserts Mr. Fields should have impeached Reed's testimony with her prior written statement. Petitioner contends that, had Mr. Fields done so, he could have highlighted the fact that, in her written statement, Reed stated petitioner had her promise not to tell several of the stories he told her while in her home. Petitioner argues he was prejudiced by this failure because the jury was left with the impression that petitioner only had Reed promise not to tell the story about killing Twila Busby by kicking her to death.

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On cross-examination, defense counsel Fields questioned Reed about the drug and alcohol abuse problems petitioner and Twila had, obtained testimony from Reed that in her experience as a recovering addict she had seen people who lost touch with reality through a combination of alcohol and drug abuse, and that in her opinion petitioner was on both drugs and alcohol on January 1, 1994. (R. 26:508-15). Mr. Fields also elicited testimony that, when petitioner arrived at the door of her residence, there was gunfire from neighbors who were celebrating being New Year's, that petitioner told her that people were shooting at him, and stated he was shot in various parts of his body, although his only injury was a cut to his hand. (R. 26:516-20). Reed acknowledged on cross-examination that petitioner talked to her about things that happened many years ago and about things that never happened and that half the time petitioner did not even know that he was talking to her, as he would call her other names. (R. 26:520-23). Ms. Reed also testified on cross-examination that petitioner told her a number of times that he would tell her the truth and that he would say this each time before he began a different story. (R. 26:526-27, 532). Mr. Fields did not elicit specific testimony from Reed that petitioner commented several times that she needed to promise not to tell anybody about various stories, a statement contained in her written statement, although he apparently began to question her on this subject at one point. (R. 26:532). Although Mr. Fields failed to specifically question Andrea Reed about being asked to swear not to tell all of the stories petitioner told her and not just the story about kicking Twila Busby to death, defense counsel did place into evidence, before the jury, the fact that Ms. Reed was asked by petitioner more than once to swear not to tell any of the stories. This evidence was admitted during the questioning of Dr. William Lowry. (R. 30:1514). *20 As noted earlier, prosecutor John Mann, on re-direct examination, elicited testimony from Reed that petitioner made her â&#x20AC;&#x153;swear to Godâ&#x20AC;? not to tell anyone about only one story, that being the story

that he kicked Twila Busby and thought he killed her. Further, while District Attorney Mann mentioned this testimony in his closing statement, (R. 30:1548), Mr. Fields, in his closing statement, responded that, according to Reed's testimony, petitioner made Reed promise not to tell numerous times and that her testimony and written statement reflect that the story emphasized by Mann was not the last one told by petitioner. (R. 30:1599-1600). Petitioner's contention is that, if Mr. Fields had specifically questioned Reed on the issue, she would have acknowledged that petitioner had her promise not to tell numerous stories that were obviously not true and this would have taken away the prosecutor's argument that petitioner emphasized to Reed the story that he thought he had killed Twila. Petitioner's contention is without merit. The crossexamination of Reed, in its entirety, reflects that under questioning from Mr. Fields, Reed acknowledged that petitioner told her every story was the truth, that to her knowledgeable eye petitioner was drunk and on alcohol and drugs when he arrived at her house, that he told many stories from the past, some of which she knew were not true, that he said that he had been shot, when he clearly had not, and that he did not seem to know who she was much of the time. Furthermore, Mr. Fields, through Dr. Lowry and in his closing statement did respond to the State's argument by stating that the story about kicking Twila to death was not emphasized by petitioner over the other stories. Thus, the record before this Court reflects that defense counsel adequately elicited testimony from Reed that most of what petitioner told her was not true, even though petitioner insisted that it was, and that he appeared to be confused as to what had occurred and who he was talking to. It is the opinion of the undersigned that petitioner has not shown that Mr. Fields' crossexamination of Ms. Reed was deficient so as to constitute ineffective assistance of counsel. This determination is made notwithstanding the fact that Mr. Fields, in hindsight, feels he might have been able to have done a more effective cross-examination. Very rarely, if ever, is there a lawyer

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who does not feel, after reflection and with the advantage of hindsight, that any cross-examination could not have been more effective. The fact that a cross-examination could be improved upon or could have been more effective is not an indication that the trial cross-examination as a whole was deficient or that counsel was ineffective. Consequently, petitioner is not entitled to relief under this ground because petitioner has not met the Strickland standard to show deficient performance. Further, even if deficient performance is assumed, he has not shown any prejudice to have resulted from the alleged deficient performance. There is no reasonable probability the jury would have not convicted petitioner even if Mr. Fields had specifically elicited testimony from Ms. Reed that petitioner had her promise not to tell every story he told her. This lack of prejudice is further demonstrated by the other evidence supporting the conviction as well as the fact that the omitted testimony petitioner complains about was later elicited from Dr. Lowry. 2. Failure to offer an effective argument regarding the State's blood stain evidence *21 Petitioner next contends trial counsel were ineffective in making their closing statements at the guilt phase of the trial. Specifically, petitioner asserts trial counsel were ineffective for not pointing to a statement contained in police officer Morse Burroughs' blood spatter report which undermined the state's theory of the case. In his post-hearing brief, petitioner also asserts trial counsel were ineffective for failing to show this report to their toxicology expert, Dr. William Lowry, and thereby use this statement as part of their defense. In particular, petitioner asserts trial counsel should have argued in closing statements that a statement in Officer Burroughs' report that there were blood stains on Elwin Caler's shorts constituted evidence that undermined the State's theory that Elwin Caler was killed in his bedroom. Petitioner argues instead this shows he (Elwin Caler) was in the same room as his mother when she was being murdered. Petitioner contends if Dr. William

Lowry, the defense toxicologist, been shown this report, it would have bolstered his testimony because he would have testified that petitioner would not have had the capacity to kill Twila while presumably fending off her son. Applicable Facts At petitioner's trial, police officer Morse Burroughs testified Elwin Caler had blood spots on his underwear when he was discovered at the neighbor's house that were inconsistent with the type of wounds he had. Burroughs further testified these blood spots were round in shape, indicating the point of origin was ninety degrees from the surface area of the shorts. (R. 24:159). Burroughs wrote a report in which he detailed this information. This report was not admitted at trial, but most of the report was read into evidence at trial, including the portion where, when describing a photograph of Elwin Caler, Burroughs stated that: Also noted was medium velocity impact spatter on the front of the victim's underwear, stomach, left side and left forearm. The spatters on the right forearm indicate that they originated somewhere in front of the victim's hand. The spatters on the front of the victim's undershorts appear to be nearly circular in shape with some indication they were traveling right to left on impact. There are two nearly circular shaped spatter on the left side of the victim which indicate they originated somewhere to the victim's left side and were in the immediate vicinity of the victim Twila Busby at the time of her assault. (R. 24:216-17). At the evidentiary hearing, the final relevant portion of this report was again read into the record, which clarified that the report stated that â&#x20AC;&#x153;these patterns would indicate this victim was present in the immediate vicinity of victim Twila Busby at the time of her assault.â&#x20AC;? (E.H.I:103). At the evidentiary hearing, defense counsel Mr. Comer and Mr. Fields testified they had no recollection of

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the report or of showing the report to Dr. Lowry. (E.H.I:102-4, 108, 213-15). Dr. Lowry testified he was not shown this report prior to trial and, had he been, his opinion that petitioner could not have committed the murders would have been bolstered because petitioner, in his inebriated state, could not have beaten Twila to death while in the same room with a young man who was over 6' 2" or 6' 3" and weighed 230 pounds and then successfully change his weapon from a stick to a knife and stab Elwin. (E.H.II:308-09, 326, 369). Dr. Lowry acknowledged on cross-examination that this scenario assumes that the blood on Elwin is Twila's blood, and that petitioner had to finish killing Twila before killing Elwin. He also acknowledged that he had not been informed that Elwin had muscular dystrophy. (E.H.II:367-70). *22 In his opening statement to the jury, District Attorney Mann made no mention of the order in which he believed the murders occurred. In his initial closing statement, the only mention Mr. Mann made of the order in which the murders occurred was when he argued that petitioner first killed Twila out of rage because she had gone to the party without him and taken his vodka. Mr. Mann then argued that, because he killed Twila, he had to kill the others, so he stabbed Randy Busby, cutting his hand when the knife hit his (Randy Busby's) shoulder blade, and Elwin Caler ran out the front of the house. (R. 30:1556-57). In his rebuttal argument and after defense counsel had completed their closing, Mr. Mann argued at one point that a logical deduction from the evidence was that, after petitioner killed Twila, he went into the boys' bedroom, and Elwin came out of the bottom bunk at some point, causing petitioner's bloody handprint to be found eighteen inches from the floor. (R. 30:16-7-08). Analysis Petitioner argues his trial counsel were ineffective in their closing statements. In considering whether a closing statement constituted ineffective assistance of counsel, an appellate court should look at the closing statements in their entirety.

th Carter v. Johnson, 131 F.3d 452, 466 (5 Cir.1997). In the instant case, the only mention of any particular theory regarding the order, and location, of the two boys when they were killed was made by District Attorney Mann on his final closing statement, after defense counsel had completed their closing statements. Defense counsel cannot be faulted for failing to respond to an argument which was not made until after their final argument had been completed. Further, the argument by the District Attorney was not objectionable. As to petitioner's alternative argument that trial counsel should have utilized the Burroughs' evidence of blood spatter on Elwin Caler's undershorts to present evidence, through Dr. Lowry, that petitioner was not capable of killing Elwin if he was located in the same room as Twila, and assuming counsel were deficient in failing to provide this report to Lowry, petitioner cannot establish prejudice. FN6 Dr. Lowry's opinion at trial was that petitioner was too incapacitated to have traveled to different rooms to kill the victims. (R. 30:1504-05). His opinion at the evidentiary hearing was that petitioner was too incapacitated to kill two people located in the same room. However, as Lowry acknowledged at trial and at the hearing, in his opinion petitioner should not have been able to do most of the activity he did that night. (E.H.II:327-32). Thus, regardless of Elwin's location in the house when he was stabbed, Dr. Lowry did not believe petitioner capable of the murders. FN6. For purposes of analyzing this claim of ineffective assistance of counsel the Court will assume Dr. Lowry was not provided with Office Burroughs blood spatter report. Indeed, Dr. Lowry so testified. However, Dr. Lowry's testimony at the trial indicated he was not clear as to what evidence had been provided to him, and at one point during the evidentiary hearing while being cross-examined. Dr. Lowry indicated he did see or that he had stated at trial that he had seen the Bur-

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roughs' report. As stated above, the Court will consider in analyzing this claim that counsel failed to provide Lowry with this particular blood spatter report. Further, there are far too many unknown factors. First, one must assume Officer Burroughs was correct in his report and that the blood on Elwin Caler's undershorts was Twila Busby's blood. Assuming that to be true, the medical examiner testified that, in her opinion, Twila Busby would have been unconscious from strangulation before she was beaten. (R. 28:1187). If this is the evidence, then petitioner would not have had two live, active victims in the same room. Twila Busby would have been unconscious or already dead when Elwin Caler appeared. Further, this type testimony would have opened the door for the State to highlight the fact that Twila Busby was already unconscious when petitioner was beating her with the ax handle and continued to beat her up inflicting up to fourteen blows, and which beating would have been witnessed by her son. There is also testimony at trial from Twila's mother that Elwin Caler was â&#x20AC;&#x153;slowâ&#x20AC;? and had diabetes and muscular dystrophy, such that he could not work. (R. 27:770-71). Thus, even given his size, this is evidence that Elwin's ability to fight back or escape might have been lower than persons his size without disabilities. Such evidence would have potentially undercut Dr. Lowry's opinion that petitioner could not have confronted two victims in the same room. Consequently, petitioner has failed to establish he was prejudiced by defense counsel's failure to make this argument. 3. Failure to present evidence that petitioner is allergic to codeine *23 Petitioner next alleges his trial counsel were ineffective in failing to present evidence that petitioner is allergic to codeine. Petitioner argues counsel had information from various sources that petitioner is allergic to codeine and, had this evidence been shown to Dr. Lowry and presented at trial, it would have bolstered the defense's argument that petitioner was too incapacitated to have com-

mitted the murders. Applicable Facts At the evidentiary hearing, evidence was presented that petitioner informed Mr. Harold Comer in a letter that he was allergic to codeine and that, in various medical records which defense counsel had in their possession, petitioner selfreported in various hospital visits that he was allergic to codeine. Defense counsel acknowledged they did not recall seeing information about a potential codeine allergy prior to trial or not noting it as being important to the case. (E.H.I:115, 144, 215). Dr. Lowry testified at the hearing that he was never shown any records reflecting petitioner might be allergic to codeine, nor was he told this information. (E.H.II:303). Dr. Lowry testified the symptoms of an allergy to codeine are rash, swelling, a lowering of blood pressure, which could lead to dizziness or sleepiness, bronchial restriction, a possible anaphylactic response, but he further stated that persons would not necessarily display the same symptoms. (E.H.II:300-01, 305). Dr. Lowry testified the information regarding a codeine allergy would have bolstered his trial testimony because a codeine allergy would have enhanced petitioner's disability or incapacity argument, or if petitioner incorrectly believed that he was allergic to codeine, he would have avoided it and thus would not have developed a tolerance to it. (E.H.II:306). On crossexamination, Dr. Lowry acknowledged it was possible petitioner took the codeine after midnight, thus making it more possible that he was functioning and mobile at midnight because he would have only had alcohol in his system at that point. (E.H.II:350, 353). Dr. Lowry also acknowledged at the hearing that it was his opinion at trial, and his opinion at the time of the evidentiary hearing, that petitioner should not have been able to walk to Andrea Reed's house, should not have been able to move around in her house unassisted, have a conversation, have a purpose in mind that was directing his movements, know about things that happened while he was passed out on the couch, such as his

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vodka being gone or Twila Busby having had gone to a party, or be able to get up from the couch, confront the â&#x20AC;&#x153;realâ&#x20AC;? killer and still arrive at Reed's house within the half-hour between Twila Busby arriving at her house and midnight. (E.H.II:327-32). Michael Chamales, M.D., testified for Respondent at the hearing. Dr. Chamales is an emergency room medical director and was an emergency room doctor who treated petitioner in October of 1993. Dr. Chamales testified he remembered treating petitioner in 1993 because it was the only time he experienced a patient being caught trying to steal syringes. (E.H.II:495-99, 501, 513). Dr. Chamales suspected petitioner was seeking drugs in that October 1993 visit because he self-reported that he was allergic to codeine, as well as to an antihistamine and an injection similar to ibuprofen. Chamales testified that, in his experience, drug seekers will report to the emergency rooms with injuries or complaints that cannot be verified and then report false allergies so doctors will be directed to medications they desire. (E.H.II:500-03). Dr. Chamales testified the allergic reaction to an opiate such as codeine would be exterior hives or, if the hives were in the stomach, nausea and vomiting, an anaphylactic reaction with a swollen throat and trouble breathing and talking, or dizziness. (E.H.II:504, 506-07). Analysis *24 Mr. Comer testified at the evidentiary hearing that petitioner Skinner was a prolific letter writer and that while he attempted to look at and scan all of the correspondence he received from Mr. Skinner, he did not recall ever having received the letter from Mr. Skinner informing him of his allergy to codeine. There is no evidence, however, that Mr. Skinner never queried Mr. Comer about this issue, or about whether Mr. Comer had received the letter. Since the letter from Mr. Skinner was located in Mr. Comer's file which had been turned over to habeas counsel, it is obvious Mr. Comer did, in fact, receive the letter. However prolific a letter writer Mr. Skinner may have been, or

however difficult a client he may have been, the letter should have received some attention from Mr. Comer. Whether he never saw the letter, whether because of the passage of time Mr. Comer has simply forgotten about the letter, or whether upon receiving it he did not, as he testified at the evidentiary hearing, place much import to it since a codeine allergy would be contradictory to the defense's position that Skinner's ingestion of alcohol and codeine on the night in question rendered him incapable of performing the murders, the issue of why the topic was not discussed with Dr. Lowry, the toxicologist, remains. Therefore, assuming for purposes of argument, that defense counsel were ineffective in not informing Dr. Lowry that petitioner might be allergic to codeine, petitioner has failed to establish prejudice under the Strickland standard. First, there is no conclusive evidence that petitioner is, in fact, allergic to codeine, While there are several instances where he self-reported this allergy, Dr. Chamales presented compelling reasons why a drug-seeker might list a false allergy. Indeed, petitioner's ex-wife gave testimony that petitioner was not allergic to codeine, but did not like to use it because it was not strong enough. (E.H.III:801-3). Morever, a friend of petitioner's, Lori Brim, suggests she saw petitioner have an allergic reaction to codeine many years ago, but this was based on a suggestion made over the telephone by a nurse, not a diagnosis by a medical professional. (Pet.E.H.ex. # 15). Further, petitioner did not exhibit any noticeable symptoms of a codeine allergy on January 1, 1994, that could be differentiated from his general intoxicated state. Petitioner was at Andrea Reed's house for approximately three (3) hours, and Ms. Reed testified he had no rash, no swelling, and no noticeable trouble breathing. (E.H.II:282). Further, during the time petitioner was under arrest and being treated at the hospital on January 1, 1994, he exhibited no allergic reaction, even though his blood tested positive for codeine. Petitioner had also reported an allergy to Toradol, but had a prescription for it filled in June of 1993. (E.H.II:535). If the defense had attempted to present evidence

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that petitioner was, in fact, allergic to codeine, the State could have countered this argument with evidence to the contrary. *25 Moreover, petitioner has failed to establish Dr. Lowry's opinion testimony would have been so bolstered by evidence of a potential codeine allergy that there is a reasonable probability petitioner would not have been convicted. In particular, while Dr. Lowry testified at the hearing that, even if petitioner was not allergic to codeine, he would have had a lower tolerance to it because he would have avoided it due to a belief that he had an allergy, Lowry also acknowledged there is no actual evidence petitioner took codeine prior to passing out on the couch, as opposed to after he awoke and after the murders occurred. There is only evidence that petitioner had some codeine in his system when his blood was taken at 5:30 a.m. on January 1, 1994. Thus, the evidence presented at trial supports a scenario where petitioner did not take codeine until after the murders, possibly after injuring his hand, meaning he was not incapacitated by it at the time of the murders. Finally, while Dr. Lowry testified that evidence of a codeine allergy or petitioner's belief in such an allergy would have bolstered his opinion because petitioner would have been even further disabled by it, Lowry also acknowledged at the evidentiary hearing that it remains his opinion that a person should have not been able to do and think the things petitioner demonstrated he could do and was known to have done with the amount of alcohol and codeine Dr. Lowry assumed was in his system at midnight. This “contradiction” indicates petitioner had a tolerance for whatever substances were in his system at midnight. Further, Dr. Lowry's opinion as to the degree to which petitioner would have been incapacitated was contradicted by Dr. Chamales, a medical doctor. Petitioner has not shown that, confronted with evidence of this possible codeine allergy, the jury would have discounted the other evidence of petitioner's actions at midnight, as well as other evidence of his guilt, in favor of Dr. Lowry's opinion to the degree there is a reasonable probability that petitioner would not have

been convicted. Stated differently, however qualified Dr. Lowry may be on the subject of toxicology, the facts of this case and the undisputed evidence of the acts petitioner did perform and was capable of performing, directly contradict Dr. Lowry's opinion. Even if Dr. Lowry had supplemented his trial opinion to include an allergy to or an avoidance of codeine by petitioner Skinner, the facts remain that petitioner's actions on the night of December 31, 1993 and the early morning hours of January 1, 1994, provided the jury with direct evidence contradictory to Dr. Lowry's opinion. 4. Failure to discover and present additional evidence of an alternate suspect Petitioner next contends trial counsel were ineffective for failing to discover and present additional evidence of a possible alternative subject, Robert Donnell. Petitioner asserts trial counsel did not have a strategic reason for not presenting more evidence which might cast suspicion on Donnell. Petitioner asserts he was prejudiced by this failure because there is a reasonable probability that, had additional evidence been presented casting suspicion on Robert Donnell as the possible killer, petitioner would not have been convicted. Applicable Facts *26 At trial, defense counsel presented testimony from Howard Mitchell's daughter, Sara Mitchell, that Donnell was at Howard Mitchell's New Year's Eve party, was following Twila Busby around, that Twila became agitated because he kept following her, and she (Twila Busby) asked Howard Mitchell to take her home. (R. 29:1276-79). They also presented testimony from Sherry Baker, a good friend of Twila's, that Robert Donnell sexually assaulted Baker in March or April of 1994. (R. 29:1296-1300). Ms. Baker further testified that Donnell was hot-tempered, that he and Twila Busby got along “like a cat and dog,” and that Donnell would get belligerent and demanding and Twila would not want him around. (R. 29:1302). At the evidentiary hearing, petitioner called

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three witnesses in support of this claim. Debbie Ellis testified she lived next door to Robert Donnell at the time of the murders and was a very good friend of Donnell's wife. Ms. Ellis testified that, a couple of days after the murders, she saw Donnell remove the carpet from inside his truck, throughly clean the inside of the truck, and then paint the outside. She stated this behavior was out of the ordinary for him as she never saw him clean his truck. (E.H.I:22-6). Ellis further testified that Donnell carried a knife, that she saw him threaten someone with it, that he had a rude temper which became worse when he had been drinking, that he drank all of the time, and that his wife had told her that he had put a gun to her head and threatened to shoot her and had pushed her and grabbed her by the throat. (E.H.1:28-30, 47, 49-50). Ellis also testified Donnell wore a tan windbreaker jacket all of the time. (E.H.I:30-1). Ellis stated she did not know when Donnell returned from Howard Mitchell's party, that he looked normal when she saw him on January 1, 1994, that she saw the police tell him that his family members had been murdered and he said “okay” and showed no emotion (E.H.I:39-40, 46). Ellis acknowledged that, when she went out to Donnell's truck when he was cleaning and painting it, she saw nothing unusual such as blood. (E.H.I:42-3). Finally, Ellis stated she told police officer Connie Lockridge this information about a month after the murders. (E.H.I:51). James Hayes testified at the hearing that he knew both Twila Busby and Donnell, that he and Donnell “got into it” one time at Twila's house, that Donnell cut his (Hayes') shirt with a knife once, that Donnell carried a knife in his truck, and that he saw Donnell threaten some teenagers in another car with a knife once because they pulled in front of his truck. Hayes also testified he used to date Twila Busby, that Twila would seek his help when she and Donnell were drunk and fighting at her house, and that Hayes would be the peacekeeper between the two of them by coming over and telling Donnell to leave and telling her to sit down or go to sleep. (E.H.I:55-59, 62-3, 70-1). Hayes further testified

that he did not know whether Twila was actually scared of Donnell or if she called Hayes because she craved attention, and that he believed her calling him (Hayes) was more of an excuse to get him to bring beer over to the house. (E.H.I:59-62). Hayes testified he was at Mitchell's party and saw Twila and Donnell arguing, that they argued when they were drunk, that Donnell left the party before Twila did because Howard Mitchell “ran him off,” and that in his presence Twila Busby stated that she did not want to go home that night. (E.H.I:60, 67-8). Hayes also acknowledged he knew petitioner, that petitioner was violent and was drinking every time Hayes saw him, and that Donnell was at Twila's house all of the time and he did not see any serious problem between Twila and Donnell. (E.H.I:66-7). *27 Finally, Vickie Broadstreet testified she was Twila Busby's best friend, that Twila told her that she (Twila Busby) was having a consensual sexual relationship with Donnell, and that Twila had told her that Donnell was jealous of her having relationships with other people. Broadstreet also testified that Donnell carried a knife, although she had never seen him threaten anyone, and that Broadstreet thought Donnell was “scary” and was afraid of him, but Twila was not afraid of him. (E.H.I:73-8). Analysis The Fifth Circuit has cautioned that a reviewing court should be wary of claims that an attorney failed to present enough evidence of a certain th type. Smith v. Cockrell, 311 F.3d 661, 669 (5 Cir.2002), citing Dowthitt v. Johnson, 230 F.3d th 733, 743 (5 Cir.2000). In the instant case, petitioner faults counsel for not calling additional witnesses to testify about Robert Donnell. However, much of what these witnesses testified to at the evidentiary hearing was similar to evidence presented at trial, in that it was general testimony that Robert Donnell was dangerous and that he and Twila Busby had an argumentative relationship. Counsel were not ineffective for failing to discover

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and present this type of cumulative evidence. Moreover, counsel were not ineffective for failing to discover and present the specific additional evidence petitioner contends should have been presented at trial. In particular, testimony from James Hayes and Vickie Broadstreet that Twila and Donnell were drinking companions, that neither of them believed Twila was afraid of Donnell, and that Twila had a consensual sexual relationship with Donnell is not necessarily testimony that would have aided defense counsel's argument that Donnell was the murderer or was a potential suspect in the crime. James Hayes' testimony that Twila told him on the night of the murders that she did not want to go home that night and that he also knew petitioner to be a violent man who drank all of the time would have hurt, rather than aided, petitioner's case. Finally, although petitioner contends Debbie Ellis' testimony that Donnell wore a tan jacket would have assisted his defense because there was a blood stained jacket at the scene, respondent argues the relevant police report indicates that the jacket was grey, citing Pet. E.H. ex. 79, which respondent denominates as Morse Burroughs' March 1994 Supplemental Police Report. Petitioner's Exhibit 79 was not Morse Burroughs' March 1994 Supplemental Police Report. Petitioner's Exhibit 79 was Burroughs' January 1994 Report. Burroughs' March supplement was actually petitioner's Exhibit 75, and petitioner's Exhibit 75 was not admitted into evidence at the evidentiary hearing. Burroughs' statement that the jacket found at the murder scene was grey, however, was admitted into evidence at trial when he read his report into the record. (R.24:216). Defense counsel were not ineffective for failing to present evidence that would not have been of meaningful assistance to them. *28 The only evidence presented by petitioner at the evidentiary hearing that might have arguably assisted in his defense was the testimony of Debbie Ellis that she saw Donnell thoroughly clean his pick up and paint it within a couple of days after the murders. The purported significance of this evid-

ence is lessened by the fact that Donnell exhibited no injuries, no blood or anything else of significance was seen in his pickup, and no bloody clothes of Donnell's was ever found by Ms. Ellis or by Mr. Donnell's wife. Counsel cannot be faulted for failing to present evidence that was not revealed by the witnesses. th Soria v. Johnson, 207 F.3d 232, 251 (5 Cir.2000). While Ellis testified she told one of the police officers this information a month after the murders, petitioner points to no police report or other docuFN7 ment reflecting this information. Petitioner argues generally in his post-hearing brief that his defense counsel should have continued their investigations into Robert Donnell and cites two Supreme Court cases as support for this assertion. These cases, however, held that trial counsel has a duty to investigate further where there are indications from the known evidence that further investigation would be fruitful. Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Petitioner has not made such a showing. FN7. At the hearing, Connie Lockridge, previously Connie Brainard, testified that she interviewed Vickie Broadstreet, previously Vickie Treat, and she did not tell her anything about Robert Donnell or his activities. She further testified that she would have put such information in her police report. She was not questioned at the hearing regarding whether she ever spoke to Debbie Ellis. Her police report, dated January 6, 1994, reflects that Vickie Treat told her that the first time she met petitioner, he tried to tear her blouse from her in Twila's presence, but mentions nothing about Donnell. (E .H. III:782-83; Def. E.H. Ex. 17). Lastly, petitioner has failed to establish prejudice. When petitioner was arrested, DNA testing revealed that he had the blood of two of the victims

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on his clothing, he had blood on both the front and back of his clothing, he had a serious cut to his right hand and two of the victims were stabbed to death, and his bloody hand prints were found in the bedroom where one of the victims was sleeping and on the doorknobs leading out the back door. One of the victims, Twila Busby, was last seen walking into her house shortly before midnight, petitioner was last seen inside of the house, and petitioner acknowledged in his statement to the police that the axe handle that was used to bludgeon Twila was something kept in the house for protection and other general purposes. (State's Ex. # 59-A at 14-15). Further, although the defense argued vehemently at trial, and presented substantial evidence to support the argument that petitioner was too incapacitated with alcohol and drugs to have committed the murders, at approximately the same time one of the victims staggered to a neighbor's house, petitioner arrived at a friend's house 3 1/2 to 4 blocks away, without any shoes on, requesting assistance with his hand, and refusing to allow to her to call anyone for help or to find out what had occurred. Petitioner has failed to show a reasonable probability that additional evidence that Robert Donnell was violent, or evidence that Twila Busby had a sexual relationship with a violent man other than petitioner, or even evidence that Donnell cleaned out his car within days of the murder, without additional evidence linking Donnell to the murders, would have resulted in petitioner's acquittal. 5. Failure to have additional scientific tests performed *29 Finally, petitioner asserts trial counsel were ineffective for failing to have DNA testing performed on additional items seized from the murder scene which were not tested by the State. Petitioner asserts that, had this evidence been submitted for DNA testing by defense counsel, there is a reasonable probability he would not have been convicted. Applicable Facts At trial, the State presented evidence that DNA

testing had been conducted on three blood stains from petitioner's shirt and three stains from his pants. Two of the stains were consistent with Twila Busby's DNA and inconsistent with petitioner's or the boys, one was consistent with petitioner's DNA, one was determined to be a mixture of both Twila's and Elwin Caler's DNA, and two were consistent with Elwin's and inconsistent with petitioner's or FN8 the other two victims. (R. 28:1109-15). DNA testing was also done on a blood stain on a blanket from Randolph Busby's bed, which was determined to be Randolph's blood, as well as a hair from Randolph's cheek, one from his back, and one from the blanket. It was determined the hair from the back was consistent with Randolph and the one from the blanket was consistent with Elwin. (R. 28:1136-37). On cross-examination, defense counsel elicited testimony that the hair in Twila Busby's hand, the two knives, Twila's nail clippings, blood smears from the front door, blood spots on the sidewalk, and the sexual assault kit from Twila Busby had not been submitted for DNA testing. (R. 28:1036, 1052, 1138). FN8. The forensic scientist testified that 1 in 5.5 billion people, at that time the population on the planet, would have the same seven DNA probes that were identified in the stains as belonging to Twila, Elwin, or petitioner. (R. 28:1122-25). At the evidentiary hearing, trial counsel, Mr. Harold Comer testified that one of the defense's tactics at trial was to attack the State for conducting an inadequate investigation and for failing to submit numerous items for DNA testing. He explained he did not request further DNA testing on these additional items because: 1) the items that had been tested, such as the blood stains on petitioner's clothing, had been damaging to the defense's case and he did not want to run the danger of uncovering even more damaging evidence; 2) the defense blood spatter expert, Max Courtney, had submitted a report which stated that there were widespread amounts of blood stains on both sides, the front and

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the back of petitioner's clothing and on the lower and higher surfaces. These findings were inconsistent with the theory that petitioner had lain comatose on the sofa during the attacks; 3) even though he could have kept the results of any additional testing secret from the prosecution, he could not have prevented the State from doing additional testing of their own which could include the items he chose to FN9 have tested; and 4) petitioner had made a statement to the police on January 1, 1994, that, although such statement was not going to be offered by the State at trial, stated he and Twila had fought with the stick, a statement contrary to the defense's position that he was comatose on the couch. (E.H. I:154-69, 188-89; E.H. III:759-60). Mr. Comer further testified that defense counsel did obtain to their own DNA expert to review the State's DNA tests. (E.H.I:178-79). FN9. Since the State had custody of the evidence, they would necessarily know what items were selected for defense testing. Even if the defense had been able to keep the particular items selected for defense testing secret, the state could certainly have submitted all items for additional testing. *30 A report dated August 24, 2000, regarding additional post-conviction DNA testing performed by the company GeneScreen, at the request of then District Attorney Mann, reflects nuclear DNA testing was done on numerous additional items. These results showed that blood on a blue notebook and hairs from Twila Busby's back, left hand, and the axe handle were consistent with Twila's DNA profile. A hair from Twila's right hand was consistent with a mixed profile of Twila and petitioner, and the DNA profile obtained from a cigarette butt was consistent with petitioner's DNA profile. Hairs from the living room, Twila's abdomen, back bedroom door, and a cassette tape yielded no results, and the mixed genetic profile found from blood on a cassette tape and the genetic profiles from some blood-stained gauze are inconsistent with either

Twila or petitioner. (Pet. Amended Pe. Ex. # 26 at 2-3). With regard to the hair from Twila's hand that yielded a mixed profile of both Twila and petitioner, a September 20, 2000, GeneScreen report reflects that Twila was included as a contributor of FN10 the blood flakes on that hair. (Id at 5-6). FN10. A report dated October 2, 2000, from GeneScreen states that the mixed profile from the hair from Twila's hand is 113,000 times more likely to have originated from Twila and petitioner than Twila and a random black male, 57,500 times more likely than Twila and a random Caucasian male, and 34,100 more likely than Twila and a random Hispanic male. (Pet. Amended Pet. Ex. # 27). A GeneScreen report dated February 6, 2001, indicates mitochondrial DNA testing done on a hair from Twila's right hand, a hair from the paper towel around the cassette tape, and two hairs from the back bedroom door indicates profiles that are consistent with Twila's profile or that of any of her maternal relatives and excludes petitioner as a contributor. Another hair from Twila's right hand and a hair from the living room yielded inconclusive results. (Pet. Ex. # 26 at 10-12). Dr. William Shields, a DNA expert from SUNY at Syracuse, testified for petitioner at the evidentiary hearing regarding the mitochondrial DNA testing performed by GeneScreen. Dr. Shields testified he was not in disagreement with the conclusion reached by GeneScreen that four of the tested hairs were consistent with having been contributed by Twila or her sons and inconsistent with having been contributed by petitioner. However, in his opinion, one of the remaining two hairs that were determined to have an â&#x20AC;&#x153;inconclusiveâ&#x20AC;? result by GeneScreen should have been reported as being more likely to exclude rather than include petitioner as a contributor and much more likely to exclude Twila, and any of her maternal relatives, as a contributor. (E.H. II:560-662; E.H. III:595, 612, 634-35). Dr. Shields also testified that the FBI first

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used mitochondrial DNA evidence in a trial in 1996 and that, in 1995, such testing was novel. (E.H.II:419). William Watson testified that in 2000 he was a senior forensic scientist at GeneScreen and performed the analysis on the mitochondrial DNA testing. He further testified that he called the one hair in question an “inconclusive” result because he had determined it was a mixed sample and it would not have been appropriate to interpret a mixed sample. (E.H.III:638-46, 657-63). He also testified that, even if Dr. Shields were correct and hair was not from petitioner or Twila Busby, it does not prove anything about who killed Twila because it was a hair collected in a home, a place of high traffic. (E.H.III:644-45). Analysis *31 Petitioner asserts trial counsel were ineffective for not having DNA testing conducted on: 1) blood stains and human hairs from a wind breaker jacket found on the living room floor by Twila's body; 2) two knives found at the scene; 3) a cup towel with blood on it found inside a plastic bag in the living room, along with one of the knives; 4) human hairs from Twila's body and clutched in her hands; 5) fingernail clippings from Twila; and 5) vaginal swabs taken from Twila at the autopsy. (Pet. Post-hearing brief at 28). Petitioner has failed to prove defense counsel were deficient in choosing not to have these items tested or that petitioner was FN11 prejudiced by this decision. FN11. Petitioner has a pending motion requesting he be allowed to conduct additional DNA testing on the issue of prejudice. If trial counsel made an adequate investigation, any conscious and informed decision counsel made based on trial tactics and strategy cannot be the basis for a claim of ineffective assistance of counsel unless the decision was so poorly chosen that it “permeates the entire trial with obvious unfairness.” United States v. Cotton, 343 F.3d 746, 753 (5

Cir.2003), cert. denied, 540 U.S. 11865 (2004), quoting United States v. Jones, 287 F.3d 325, 331 th (5 Cir.2002); Smith v. Cockrell, 311 F.3d 661, th 668 (5 Cir.2002). The record before this Court reflects not only that trial counsel throughly considered this issue and made the conscious decision not to have any additional nuclear DNA testing performed, but the record reflects this decision was an informed one based on trial tactics and sound strategy. In making this decision, counsel had had their own expert examine the State's DNA testing results for errors. Defense counsel also had in their possession a report from a blood spatter expert which contradicted the defense's argument that petitioner was passed out and comatose on the couch. DNA evidence which revealed that Twila's and Elwin's blood and a mixture of the two were on petitioner's clothes, and petitioner's own statement contradicted the defense presented at trial. Counsel were clearly reasonable in their apprehension that additional DNA testing could have revealed further damaging evidence. Petitioner counters that, even if the results were damaging to the defense, the State would have never have discovered the results. But, this Court finds Mr. Harold Comer's testimony that he feared that the State would decide to test whatever items he had tested to be persuasive. In fact, Mr. Comer stated he was relieved when the deadline passed and the State had not conducted any additional testing. Petitioner's next argument is that counsel were deficient because additional testing of these items would not have harmed petitioner's case because, if his DNA were found on any of these items, it would have been expected, because petitioner lived in the house, had a sexual relationship with Twila, and had a cut on his hand. However, some results would have hurt petitioner's case or, at the very least, would not have assisted it. In particular, if petitioner's blood were determined to be on the handles of either of the knives, if his DNA were found under Twila's fingernails, or if his hair were found clutched in her hand, petitioner may have tried to argue to the jury that such was not conclus-

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ive evidence of his guilt, but such evidence would still have been very damaging to the defense's contention that petitioner was passed out and lying on the couch during the assaults. This is not information that would have been helpful to petitioner's case. *32 The major disadvantage to petitioner's case, however, would have been that he would have lost the primary defense he presented at trial, i.e., that an unknown assailant committed the murders and that there is reasonable doubt of petitioner's guilt because the State's investigation was inadequate in that the State failed to submit these additional items of evidence found at the murder scene for DNA testing, which testing would have either confirmed petitioner's guilt or would have shown the involvement of an unknown assailant. It is on this point that the Court does not agree with Dr. William Thompson's opinion that counsel was ineffective for failing to conduct additional DNA testing, and particularly his opinion that the jury would not find it significant that the State had failed to have DNA testing done on these additional items of evidence. In hindsight, of course, defense counsel's strategy of faulting the State for not adequately investigating the case and for not conducting additional DNA testing was not successful. However, this is not an infrequent defense in criminal cases, and more so in murder cases, to present a defense of reasonable doubt because the State did not throughly and adequately investigate the case. Such a tactic has been successful in the past and will in all probability meet with success in the future. Putting the State on trial so to speak, rather than petitioner, is a commonly utilized defense. Mr. Comer and Mr. Fields had extensive trial experience, unlike Dr. Thompson whose trial experience is very limited. Therefore, while the Court finds Dr. Thompson's credentials to be quite impressive, his trial experience and lack of familiarity with what juries do and do not accept, render his opinion on this issue unpersuasive. Mr. Comer and Mr. Fields had to make their

decision of whether to have additional items submitted for testing without the benefit of knowing what the results of those tests would be. Counsel were literally in somewhat of a â&#x20AC;&#x153;catch 22â&#x20AC;?position. If they chose to have additional testing done, and thereby prompted the State to do additional testing which was inculpatory, they would surely have been criticized for that decision. If they adopted the course of action they did chose, they are criticized as well. Further, counsel had no realistic expectation the results of the tests would exonerate petitioner, and, in fact, were reasonable in fearing the results would incriminate him. While petitioner, in his amended writ and in his post-hearing brief, attempts to make the argument that he at all times maintained his innocence, the testimony at the evidentiary hearing was not conclusive. It is true that Mr. Comer did testify, without objection, that petitioner Skinner never admitted guilt and maintained his innocence, but it is also true, as evidenced by the January 4, 1994 statement of petitioner, that petitioner professed to have no recollection of the events occurring the night of the murders. Petitioner did not testify at the evidentiary hearing and did not assert, and has not asserted, a claim of actual innocense. Consequently, counsel's decision that the potential harm to his defense of faulting the State for an inadequate investigation and for prematurely focusing their investigation on petitioner would have evaporated if additional DNA testing had been done and was detrimental to petitioner. FN12 Further, Mr. Comer's fear that the District Attorney would have obtained additional DNA testing on all of the items of evidence in order to avoid any surprise, even though the prosecution would not have known the results of any defense testing, was reasonable. FN12. Again, the additional testing which would have been detrimental would be additional testing done by the prosecution which additional testing would have been triggered by any request of the defense to have these items of evidence submitted to a defense expert for DNA testing.

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*33 Moreover, petitioner has failed to show that some of the testing which he alleges should have been done prior to trial was actually available at the time of petitioner's trial. In particular, petitioner asserts that, had trial counsel presented evidence that one of the hairs from Twila's hand was neither her hair, nor petitioner's hair, this would have aided the defense. Putting aside the fact that Respondent disputes this particular finding, petitioner has not established that mitochondrial DNA testing was widely available in 1995, a time when it was considered â&#x20AC;&#x153;novel,â&#x20AC;? according to petitioner's own expert. Furthermore, regarding the hairs that were not tested, many of those have now been tested and have been determined to have originated either from the victims themselves, a mixture of Twila and petitioner's DNA or, at best, an unknown person. Texas Department of Public Safety criminologist Gary Stallings testified at trial that he did not attempt to test the hair in Twila's right hand because it could have come from anywhere, including the carpet on which she was found. (R. 28:1031-32). William Watson testified at the hearing that a home is a high traffic area, and Dr. Shields acknowledged that an unknown hair on Twila's hand is not evidence that the person was involved in her murder. (E.H.III:629, 645). James Hays testified that Robert Donnell had been in Twila Busby's house on several occasions. (E.H.I:67) Accordingly, petitioner cannot establish his trial counsel were ineffective for failing to request testing of items that would not have been probative. Petitioner has failed to establish that defense counsel's decision not to request further DNA testing was not sound trial strategy or was so poorly chosen that it permeated the entire trial with obvious unfairness. Petitioner has therefore failed to prove that his counsel were ineffective in this respect. Petitioner has failed to meet the Strickland standard with respect to each of his claims of ineffective assistance of counsel. Accordingly, it is re-

commended that petitioner's fourth ground for relief be denied. C. Conflict of Interest Claims Grounds 5 and 6 In his fifth ground for relief, petitioner asserts he was denied his Sixth Amendment right to effective assistance of counsel because his lead trial counsel was operating under an actual conflict of interest. Specifically, petitioner contends his lead trial counsel, Mr. Harold Comer, had an actual conflict of interest because he was the elected district attorney when petitioner was prosecuted and pled guilty to two prior felony offenses that were offered into evidence by the State at the punishment phase of the trial. In his sixth ground for relief, petitioner argues he was denied effective assistance of counsel at the motion for new trial stage of the proceedings because he continued to be represented by Harold Comer, although both Mr. Comer and petitioner requested otherwise, and Mr. Comer had an actual conflict of interest. Applicable Law *34 In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court announced the general rule with respect to conflicts of interest between attorneys and clients. In that case, a state defendant had filed a federal writ of habeas corpus alleging his trial attorney was operating under a conflict of interest because he represented Sullivan and his two co-defendants in three separate criminal trials. The Supreme Court held that the mere possibility of a conflict of interest is insufficient to overturn a conviction. Rather, in order for a criminal defendant to demonstrate a violation of Sixth Amendment rights that would entitle him to relief, the defendant must establish that his attorney was actively representing conflicting interests and that an actual conflict of interest adversely affected his attorney's performance. Once a criminal defendant demonstrates such a conflict, prejudice is presumed. Id. at 349-50. Since Culyer was decided, the Supreme Court has

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reiterated that a defendant is not entitled to a presumption that the prejudice prong of the Strickland standard has been met where there existed a conflict of interest on his attorney's part, unless that conflict affected the attorney's performance. Mickens v. Taylor, 535 U.S. 162, 172-73, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). th In Beets v. Scott, 65 F.3d 1258 (5 Cir.1995), cert. denied, 511 U.S. 1151 (1996), the Fifth Circuit held that Cuyler v. Sullivan was only applicable in situations where an attorney was representing multiple interests. The Fifth Circuit further held in Beets that the Cuyler standard for ineffective assistance of counsel did not extend to conflicts between an attorney's personal interest and his client's interest, as those types of situations were best analyzed under the Strickland standard for ineffective assistance of counsel. Beets, 65 F.3d at 1269-72. The Fifth Circuit has also held that, in order to show there has been an adverse effect, a petitioner must show “some plausible defense strategy or tactic [that] might have been pursued but was not, because of the conflict of interest.” Hernandez th v. Johnson, 108 F.3d 554, 560 (5 Cir.1997), quotth ing Perillo v. Johnson, 79 F.3d 441, 449 (5 Cir.1996). Analysis Petitioner contends Mr. Comer had a conflict of interest because he was the elected district attorney of Gray County, Texas when petitioner pled guilty to aggravated assault of a police officer on January 12, 1988 and when petitioner pled guilty to unauthorized use of a motor vehicle on May 9, FN13 1988. Petitioner contends that, because Comer was the district attorney in these two prior cases, he would not have been able to attack the underlying facts of the two convictions at trial because the fact that he had previously prosecuted petitioner meant that he would have been representing competing interests. Petitioner also argues he did not waive this conflict of interest. Accordingly, petitioner alleges he is entitled to relief because his attorney had an actual conflict of interest which was not waived by

petitioner. FN13. In his amended petition, petitioner also alleges Mr. Comer was involved in illegal activities when he was the District Attorney and was forced to resign as District Attorney because he pled guilty to a misdemeanor official misconduct charge. Petitioner alleges Comer had a “reputation” for abusing cocaine and had a large debt to the IRS when he was appointed to represent petitioner. In an affidavit filed with the State's response. Mr. Comer categorically denies these allegations, states that these allegations were made by petitioner's former attorney. Steven Losch, in an effort to coerce Mr. Comer into signing an affidavit supporting petitioner's claim, and refers to a telephone call between the two men after the amended petitioner was filed in which Mr. Losch offered to retract the allegations in return for an affidavit from Mr. Comer. (Response, Ex. A). Mr. Losch has since died and been replaced as petitioner's federal habeas counsel and, while petitioner has not retracted these claims, they were not developed at all at the evidentiary hearing held in this case. Moreover, while petitioner argues in his reply that Mr. Comer's financial situation created an incentive for Mr. Comer not to inform petitioner about any potential conflict and/ or would be a reason to question Mr. Comer's veracity, this Court finds that these allegations about Mr. Comer's character have not been shown to have evidentiary support and further, are not relevant to the issue of whether he had a conflict of interest because he was the District Attorney when petitioner was prosecuted in two previous cases. Accordingly, these unsupported allegations

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will not be addressed by this Court. *35 In Hernandez v. Johnson, the Fifth Circuit assumed, without deciding, that a scenario where a defense attorney had been the district attorney was one properly analyzed under Culyer, even though it is not a situation where multiple defendants have been represented, but two parties with “arguably disparate interests.” Hernandez, 108 F.3d at 559. This Court, following Hernandez, will also analyze this claim using the Culyer standard. In Hernandez, the Fifth Circuit determined that a capital murder defense attorney who had been the elected district attorney when Hernandez had been previously prosecuted for two other offenses did not have an actual conflict of interest because his involvement in the previous cases was not “personal and substantial” enough to give rise automatically to a conflict of interest. Specifically, although the attorney signed several motions and two applications for subpoenas in the previous two cases as district attorney and probably approved the plea bargains, he was not the trial counsel in either case. Id. at 559-60. Accordingly, the Fifth Circuit held that Hernandez' attorney did not actively represent conflicting interests. Id. at 560. Furthermore, the Fifth Circuit held that Hernandez had failed to prove that any alleged conflict affected the attorney's performance because Hernandez had failed to establish that there was any viable basis upon which the prior convictions, which were admitted into evidence at the punishment phase of the trial, could be attacked. Id. Similarly, even if this Court were to determine that Mr. Comer represented conflicting interests, petitioner has not shown Mr. Comer was acting under an actual conflict of interest because he has not shown, as required under Mickens v. Taylor and Hernandez, that any such conflict affected his performance. At the trial, in addition to the substantial testimony at the punishment phase regarding various unadjudicated offenses committed by petitioner, testimony was also given regarding these two prior adjudicated offenses committed by petitioner.

First, a probation officer testified that after petitioner pled guilty to aggravated assault on January 12, 1988, for which he received a sentence of three years probated, that she supervised him for a period of about two months until he was arrested and sentenced to five years in prison for the unauthorized use of a motor vehicle charge. (R. 31:1724-28). No testimony was given regarding who prosecuted petitioner. Subsequently, the penitentiary packet from the second conviction (unauthorized use of a motor vehicle) was entered into evidence at punishment through the testimony of a fingerprint expert. (R. 32:1956). This conviction was the one in which petitioner pled guilty to the offense of unauthorized use of a motor vehicle on May 9, 1988 in exchange for a five year sentence and dismissal of a motion FN14 to revoke probation. (State's Ex. # 184). The pen packet itself does state that Mr. Comer represented the State at the plea hearing, but does not elaborate further. The only other mention of either offense was by Mr. Comer in his closing argument, where he stated that the evidence reflected that petitioner had been to the penitentiary only one time, for the unauthorized use offense, served seven months, and was released on parole, which he sucFN15 cessfully discharged. (R. 33:2363-64). FN14. In an affidavit submitted with Respondent's response, Mr. Comer states that petitioner pled guilty to the aggravated assault of a police officer and received three years probation. This probated sentence was then discharged as part of the plea agreement for the plea of guilty petitioner made on May 5, 1998 to the UUMV offense. (Response, Ex. A at 2). FN15. Mr. Comer made this statement as support for his argument that petitioner would not be a danger in prison if sentenced to a life sentence. *36 Petitioner has failed to show Mr. Comer was operating under an actual conflict of interest because this testimony and the pen packet were admitted into evidence. Petitioner alleges that, had

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Comer not been operating under a conflict of interest, he could have attacked the factual basis for the convictions and thus presented evidence in mitigation of the convictions. Specifically, petitioner alleges he informed Comer that he was not actually guilty of the unauthorized use of a motor vehicle because he believed that the owner of the truck had given him permission to drive it, as he had given such permission in the past, and that he kicked the police officer, the act for which he was charged with aggravated assault, in self-defense. (Petition at 63, n. 31). Petitioner, however, has not offered any evidence in support of this allegation, and the record before this Court does not reflect any realistic basis upon which either of these two convictions could be challenged. Assuming, solely for purposes of argument, that petitioner is contending he is innocent of the offenses for which he pled guilty, the record before this Court does not support petitioner's claim that Mr. Comer could have successfully presented convincing mitigating evidence had he not been operating under a conflict. In particular, defense counsel placed into evidence, for record purposes only, further documentation regarding the unauthorized use of a motor vehicle offense. Included in this documentation is the offense report which reflects that, when the complainant contacted the Pampa police to report that his truck was stolen from his front yard, he also reported that petitioner had called him three hours earlier, told him that his truck was in Borger, Texas, and told him that a third party had stolen the vehicle and driven it there. The report also indicates that petitioner had earlier been stopped by the Borger police while driving the truck, and was driving the same truck when he stole gas from a gas station. (Def.Ex. # 15). As former District Attorney Mann stated at the evidentiary hearing, had defense counsel attempted to attack the factual validity of the convictions, he would have presented evidence in support of the convictions. (E.H.III:736-39). This would have included the transcript from the plea hearing in which petitioner admitted taking the vehicle without authorization. (E.H.III:738). Presumably, such evidence would have also been of the type contained in

this offense report, which reflects that petitioner did not innocently borrow a car, but instead took a vehicle without permission and attempted to blame someone else for the theft. Likewise, as Mr. Comer explained in his testimony at the hearing, while petitioner had told him both that he did not recognize the person he kicked was a police officer and also claimed that he acted in self-defense, he would never have opted to challenge the factual basis for the aggravated assault conviction because it was unlikely the officer would testify that petitioner acted in self-defense. Therefore, to present such evidence petitioner would have had to testify and open himself to cross-examination by the prosecution. FN16 (E.H.III:752-53). FN16. Texas state case law has consistently stated that, once a criminal defendant decides to testify, he is to be treated as any other witness, and may therefore be crossexamined, contradicted, impeached, and discredited. Cisneros v. State, 692 S.W.2d 78, 83 (Tex.Crim.App.1985); Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App.1981); Nichols v. State, 494 S.W.2d 830, 834 (Tex.Crim.App.1973). *37 Further, while it is true that Mr. Comer testified, without objection, as to what petitioner told him regarding the aggravated assault conviction, Mr. Comer also testified the issue of attacking the priors was discussed with petitioner and it was agreed that they should not attack the prior convictions. (E.H. III: 767). Further, the facts of the aggravated assault conviction do not support petitioner's position that he did not know the person he kicked was a police officer. An offense report of the incident reflects police officers observed petitioner Skinner urinating in public, and that when the patrol vehicle stopped, petitioner fled. The police caught him and arrested him for public intoxication. While petitioner was being booked into jail and being placed into a detox cell, petitioner kicked Corporal Lance in the groin area. (Resp.Ex. 33).

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Thus, the record before this Court reflects that, even if Mr. Comer's prior position as District Attorney did prevent him from attacking petitioner's prior two convictions, this was not an actual conflict of interest as it did not affect his performance because petitioner has failed to establish there was any viable basis upon which to attack these two prior convictions. Accordingly, petitioner's fifth ground for relief is without merit, and it is recomFN17 mended that it be denied. FN17. In their pleadings and at the evidentiary hearing, the parties have spent a substantial amount of time and effort contesting the issue of whether petitioner waived any potential conflict of interest. In particular, evidence has been presented that the trial judge, the prosecutors, and defense counsel all have recollections, albeit of various strengths, of a conversation in court between the trial judge and petitioner about Mr. Comer's potential conflict of interest, although this conversation was not transcribed into the record. Petitioner has disputed these recollections. However, as this Court has determined that Comer was not acting under an actual conflict of interest, there is no need to address the issue of whether any conflict was adequately waived by petitioner. With respect to petitioner's sixth ground for relief, which petitioner phrases as being that the trial court denied him effective assistance of counsel in the preparation of a motion for new trial by not allowing Mr. Comer to withdraw as counsel, in essence petitioner is complaining he was denied effective assistance of counsel because Mr. Comer was unable, due to his conflict of interest addressed above, to raise such conflict of interest claim in a motion for new trial. The undersigned has determined Mr. Comer was not operating under an actual conflict of interest at trial. Moreover, petitioner's conflict of interest claim has been fully developed at the federal habeas level and has been addressed

on its merits by this Court. Accordingly, the underlying claim petitioner alleges that he wished to have addressed in a motion for new trial has been considered by this Court and found to be without merit. Petitioner's sixth ground for relief is without merit, and it is recommended that it be denied. D. Work Product Claim Ground 7 In his seventh ground for relief, petitioner argues his rights under the Sixth and Fourteenth Amendments were violated because the trial court ordered defense counsel to disclose an expert's work product to the State. Specifically, petitioner contends the fact that the trial court required defense counsel to disclose to the prosecution certain notes made by defense toxicology expert, William Lowry, violated petitioner's right to due process because the prosecution was given broader discovery than the defendant. Petitioner also contends his Sixth Amendment right to counsel was violated because the report ordered to be disclosed was work product and was a communication between defense counsel and their agent about trial strategy. Respondent counters that, besides being unexhausted, this claim is without merit because: 1) the trial court did not violate Texas state law; 2) even if state law was violated, it does not rise to a constitutional violation; and 3) even if there was a constitutional violation, it was harmless. *38 At trial, and over the defense's objection, the trial court required the defense to provide notes made by the defense toxicology expert, Dr. William Lowry, so he could be cross-examined regarding these notes. (R. 30:1441). The trial court based this ruling on a state rule of evidence that permits opposing counsel to view documents an expert has used as the basis of his opinion. See TEX.R.CRIM. PROC. 705. These particular notes contained written comments and questions prepared by Dr. Lowry to serve as a format for the initial discussion with defense counsel so counsel might provide him with additional information to use as a basis for his opin-

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ion. (R. 29:1421-22). On direct appeal, the Court of Criminal Appeals held the ruling by the trial court violated the state work product doctrine because Dr. Lowry was an agent of the defense, the written comments he made regarding the strengths and weaknesses of the defense's case were “highly privileged work product” of a nature intended to be protected by the work product doctrine, the defense did not waive this privilege when Dr. Lowry testified, and the document in question did not fall under the auspices of Rule 705. Skinner, 956 S.W.2d at 537-40. Nevertheless, the Court of Criminal Appeals ruled the error was harmless beyond a reasonable doubt because: the matters contained in Dr. Lowry's notes were only a small part of the State's crossexamination of Dr. Lowry; the prosecutor's impeachment of Dr. Lowry's testimony was extensive and pointed to inconsistences between the evidence and the defense's theory that were not contained in Dr. Lowry's notes; there was no evidence contained within Dr. Lowry's notes and not presented in the State's case that was emphasized by the State; and the defensive theory was not particularly plausible in light of the evidence, thus making most of the matters raised in Dr. Lowry's notes common sense deductions. Id. at 541-42. On direct appeal, petitioner had also argued that requiring the defense to turn over these notes to the prosecution was a due process violation. Having found error based on a violation of state evidence rules, the Court of Criminal Appeals overruled petitioner's due process claim, along with other claims he alleged based on these same facts. Id. at 542. Citing Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), petitioner asserts his due process right were violated. In Wardius, the Supreme Court ruled that an Oregon statute that required a defendant to notify the prosecution if he intended to use an alibi defense along with the specifics of the defense and the names and addresses of the alibi witnesses violated the due process clause of the Fourteenth Amendment because it did not

give reciprocal discovery rights to the defendant requiring the State to reveal the names and addresses of witnesses it intended to call to refute the alibi. Id . at 472. The Supreme Court noted it was fundamentally unfair to require a defendant to divulge the details of his own case while subjecting him to surprise concerning the State's refutation of the evidence he disclosed to the State. Id. The Supreme Court reversed the conviction upon findings that there was a substantial possibility that the error may have infected the verdict. Id. at 479. *39 Assuming the holding in Wardius is applicable to the case at hand, petitioner is not entitled to relief on his due process claim. First, he has pointed to no reciprocal State's evidence he was entitled to as a result of the tendering of Dr. Lowry's notes to the prosecution, but did not receive. Second, and most importantly, he has failed to establish harm. As the opinion in Wardius makes clear, harm must be established before an error leads to the reversal of a conviction. At the federal habeas level, the appropriate harmless error test is the one set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under this test, error is deemed harmless if it did not have a “substantial and injurious effect or influence in determining the jury's verdict.” Id. at 637. District Attorney John Mann's cross-examination of Dr. Lowry was extensive, encompassing close to 100 pages of the trial record. Prior to being provided the notes in question, District Attorney Mann questioned Dr. Lowry about several aspects of the case, including the fact that Dr. Lowry was aware that petitioner was interviewed by authorities on January 4, 1994, and in this interview petitioner stated that he left the house at around midnight with a cut hand and with an intent to have someone fix his hand, that he had told Twila not to go to Howard Mitchell's house, that he had been drinking all day long, that he had a habit of blacking out while drinking and not remembering what happened, and that he realized when he awakened later that night that his vodka bottle was gone. (R. 29:1398-1402). All of these particulars in petition-

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th er's statements to the police on January 4 were mentioned by Dr. Lowry in his notes. Skinner, 956 S.W.2d at 546-47. As noted by the Court of Criminal Appeals, much of what is contained in these notes is common sense and the inconsistencies between petitioner's statements to the authorities and the defense's theory that petitioner would not have been physically or mentally capable of committing murder had clearly occurred to the District Attorney before he was provided these notes. District Attorney Mann also questioned Lowry extensively on potential weaknesses in the defensive theory that were not contained in the notes, including petitioner's actions while at Andrea Reed's house, the fact that petitioner was mobile at midnight and was able to walk the four blocks to Reed's house, the fact that petitioner asked “is that all” when told he was being arrested on outstanding warrants, the presence of Twila Busby's blood droplets on petitioner's shirt, and the absence of more of petitioner's bloody hand prints in the house, given the level of his intoxication and the defense's theory that he would have been in a stupor and would have had to hold himself upright. (R. 30:1467-77, 1482-83, 1499, 1509-10). Accordingly, Dr. Lowry's notes were not the sole or even primary basis for the State's cross-examination. Rather, as was further noted by the Court of Criminal Appeals, the only piece of evidence contained in Dr. Lowry's notes that was not placed into evidence elsewhere at trial was that Twila Busby's blood alcohol level was .19. Dr. Lowry was permitted to testify to this evidently because the trial court erroneously believed such information was contained in the autopsy report, which had already been admitted into evidence. (R. 30:1500-04). But, the transcript of petitioner's conversation with the th police on January 4 , in which he stated two times that he thought Twila came home drunk that night, was already in evidence (State's Ex. # 59A), as was Howard Mitchell's testimony that he had spoken to Twila and petitioner by telephone at around 9:30 on December 31, 1993, they both wanted to come to his house for a drink, and he later came and picked

up Twila for the party, where people were drinking and dancing. (R. 26:575, 601), and as was Melvin Busby's testimony that at 8:00 that evening when he saw her, she appeared to have been “drinking some” (R. 27:757). Moreover, the defense had earlier placed into evidence the testimony of Howard Mitchell's twelve-year-old daughter Sara who testified, among other things, that Twila brought a vodka bottle over to her father's house on New Year's Eve, she could smell vodka on Twila's breath, and Twila was “in-between” drunk, but not drunk. (R. 29:1275-76). Given that there was a substantial amount of this other evidence that Twila had been drinking that day and night, Dr. Lowry's testimony regarding her actual blood alcohol level did not add a substantial amount to the State's case against petitioner. Thus, taken as a whole, the cross-examination of Dr. Lowry based on his notes did not have a substantial and injurious effect or influence in determining the jury's verdict. Accordingly, any harm in the notes having been provided to the prosecution was harmless. The Texas Court of Criminal Appeal's decision overruling petitioner's due process claim on direct appeal did not result in a decision that is contrary to federal law. *40 Petitioner's Sixth Amendment claim under this ground is also without merit. For the reasons set forth above, any complaint that disclosure of Dr. Lowry's notes constituted an invasion of petitioner's right to the effective assistance of counsel does not entitle petitioner to relief because no prejudice resulted. Petitioner has failed to show there was a reasonable probability he would not have been convicted had these notes not been provided to the State. Petitioner's seventh ground for relief is without merit, and it is recommended that it be denied. E. Right to Counsel Claims Grounds 8 and 9 In his eighth ground for relief, petitioner asserts his right to counsel was violated when the Sheriff read and copied privileged correspondence

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between petitioner and his attorneys when petitioner was housed at the county jail awaiting trial. In his ninth ground for relief, petitioner contends that the trial court violated his Sixth Amendment right to consult with counsel by ordering the bailiff to separate petitioner from his attorneys during recesses at trial. Respondent responds that, in addition to these claims being procedurally barred, they are without merit because: 1) petitioner has failed to establish that any of his correspondence was given to the prosecution; and 2) the trial court's requirement that petitioner be removed from the courtroom during recesses at trial did not interfere with his right to consult with his trial counsel, which could occur in the holding cell. 1. Privileged correspondence claim On March 14, 1994, soon after he was indicted for capital murder, petitioner filed a pro se motion with the trial court requesting that the trial court enjoin the Gray County Sheriff's department from photocopying his â&#x20AC;&#x153;private/privilegedâ&#x20AC;? correspondence. In this motion, petitioner alleged that the sheriff had opened correspondence from his attorney and from clergy. (Deposition ex. # 4). On April 27, 1994, after a pre-trial hearing held on April 25, 1994, state trial judge Kent Sims issued an order instructing the sheriff and his staff not to copy any of petitioner's mail and not to open privileged mail, that being mail from courts, federal officials, attorneys, news media, and clergy, unless it was opened in petitioner's presence. By the terms of this order, the sheriff's office was permitted to open and inspect non-privileged mail for security reasons, but was required to inform petitioner if any mail was confiscated. (Deposition ex. # 5, Supplemental Statement of Facts, vol. 11). Even though the state trial court entered this order, there has been no documentation produced in this federal case showing any of petitioner's privileged mail was in fact opened before the order was entered. On May 18, 2004, by way of an order granting limited discovery, this Court authorized petitioner to depose Randy Stubblefield, the elected sheriff of

Gray County at the time of petitioner's arrest and trial, and obtain all relevant documents from Mr. Stubblefield, in order to develop the factual basis for petitioner's eighth ground for relief. This deposition took place on July 21, 2004, and petitioner submitted as exhibits to this court the transcript of the deposition, as well as several other supporting documents. In this deposition, Mr. Stubblefield testified that it was the policy at the Gray County jail during his four years as sheriff to open and screen all non-privileged mail that was sent to and from inmates for security reasons and to search for possible contraband. He further testified to his understanding that privileged mail was mail inmates sent to and received from attorneys and clergy and that these could not be opened by jail staff. All mail sent from and received by inmates, however, would be noted in the jail mail log. (Stubblefield deposition, pp. 9-13, 15). Mr. Stubblefield further acknowledged that, after petitioner was arrested and charged with capital murder, he instituted a policy where the envelopes of petitioner's non-privileged mail would be copied and forwarded to him, as Stubblefield feared that petitioner would attempt to escape from jail, and he wanted a record of who was sending and receiving mail from petitioner. (Id. at 59). Stubblefield further testified that, after he received the order from the trial court, they stopped copying petitioner's envelopes, and he gave all of the copies he had accrued to petitioner's attorney, Harold Comer, but the jailers continued to open and screen petitioner's non-privileged mail. (Id. at 101-02, 108-11). Finally, Stubblefield testified he neither gave the prosecution an envelope or the contents of any letter written by or received by petitioner, either privileged or not, nor did he ever inform the prosecution about the contents of petitioner's letters. (Id. at 140-41). The memo that was issued by Deputy Chief Rob Goodin, at Stubblefield's request, regarding petitioner's mail states that all of petitioner's non-privileged mail was to be copied and the copies placed in Stubblefield's box. (Id., ex. # 2). *41 Petitioner asserts he is entitled to relief on

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this claim because Sheriff Stubblefield copied privileged correspondence and that information from such privileged correspondence with his attorneys was used by the “prosecution team during their investigation and trial of the case.” (Amended petition at 93). As further support for this claim, petitioner points to an affidavit submitted by a former jailer, Kathy Reed. In this affidavit, Ms. Reed asserts that the sheriff violated the court's order by continuing to open and read petitioner's mail. (Pet.Ex. # 17). In Taylor v. Sterrett, 532 F.2d 462, 472-75 (1976), the Fifth Circuit observed that it was a violation of a prisoner's Sixth Amendment right to effective counsel and his right to access to the courts for jail authorities to open an inmate's outgoing correspondence with an identifiable attorney at all or to open his incoming correspondence from his attorney, if opened outside the presence of the inFN18 mate. Petitioner alleges Sheriff Stubblefield opened, read, and copied all of petitioner's correspondence, including his correspondence with his attorneys, and forwarded privileged information to the prosecution. Petitioner has not, however, produced any evidence to support this allegation. Instead, the evidence before the Court is that Mr. Stubblefield denied under oath that any correspondence between petitioner and his attorneys was opened or copied by jail personnel, the memorandum that was issued to jail personnel pursuant to Stubblefield's request, was that only petitioner's “non-privileged mail” was to be copied, and the only evidence petitioner has presented that this activity continued after the court order to cease issued is an affidavit from former jailer Kathy Reed. In her affidavit, however, Ms. Reed does not allege that any privileged correspondence was opened and/or copied. Accordingly, even if this Court assumes the trial court's order was violated, a point on which the parties disagree, there is absolutely no evidence petitioner's privileged correspondence was opened by jail personnel, either in or outside of his presence. Petitioner has not shown a violation of his Sixth Amendment rights. Petitioner's eighth

ground for relief is without merit, and it is recommended that it be denied. FN18. As support for this claim, petitioner cites to an Arizona Supreme Court opinion which, in essence, has the same holding. See State v. Warner, 150 Ariz. 123, 722 P.2d 291 (Ariz.1986). 2. Consultation with counsel claim During the punishment phase of the trial, petitioner addressed the trial court directly and complained that he was being removed from the courtroom immediately after every recess was called. Petitioner asserted this prevented him from communicating with his trial counsel regarding the testimony that was being given. The trial judge responded that it was the policy in Tarrant County to remove criminal defendants from the courtroom and further responded that he had allowed counsel to consult with petitioner whenever they had asked and that he would, in the future, ask petitioner's trial counsel if they needed any further consultation with petitioner. Petitioner further objected at trial that this proposed remedy would violate his Sixth Amendment rights. (R. 31:1886-88). Petitioner further alleges that he could not speak with his attorneys in the holding cell where he was taken during each recess. (Petition at 96). *42 The Supreme Court has recognized that a non-testifying criminal defendant has an absolute right under the Sixth Amendment to consult with his attorney during his trial. Perry v. Leeke, 488 U.S. 272, 281, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989). Subsequently, the Fifth Circuit has stated that, while it may not be a constitutional violation to deprive a criminal defendant of the right to consult with counsel during any recess, no matter how brief, this constitutional right to counsel “warrants the most zealous protection.” United States v. Johnth son, 267 f.3d 376, 379 (5 Cir.2001), citing Perry v. Leake, 488 U.S. at 278-79, United Way v. Conth way, 632 F.2d 641, 645 (5 Cir.1980), overruled th by Crutchfield v. Wainwright, 803 F.2d 1103 (11 Cir.1986).

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As support for his claim that his removal from the courtroom during recesses at his trial was a violation of his Sixth Amendment right to counsel, petitioner cites several cases. Most of these cases address circumstances where a trial court has ordered a defense attorney not to consult with his client during recesses that occur during the defendant's testimony at trial. While the Supreme Court has held that it is not a constitutional violation for a defendant to be prevented from consulting with his attorney during a fifteen minute recess between his direct and cross-examination, Perry v. Leake, 488 U.S. at 281, it is generally recognized in these cases that a trial court may not prevent even a testifying defendant from consulting with his attorney during longer recesses, such as overnight or lunch recesses. See Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), Jackson v. United States, 420 A.2d 1202 (D.C.App.1979). However, contrary to these cases, petitioner has not shown that the trial court prevented him from consulting with his attorneys during recesses that occurred during his trial. While there is an unsworn statement in petitioner's petition that he could not speak to his attorneys when he was in his holding cell, Respondent has submitted an affidavit from petitioner's lead counsel, Harold Comer, which states that counsel could communicate with petitioner before and after court and during extended recesses in the holding cell. (Response, Ex. A, p. 3). Accordingly, the credible evidence before this Court is that, while the trial court did not permit petitioner to sit in the courtroom during trial recesses, counsel could meet with petitioner in the holding cell during “extended recesses.” The term “extended recesses” has not been defined to this Court, even though Mr. Comer was called as a witness by both parties at the evidentiary hearing. But, based on the record before this Court, petitioner has failed to establish he was denied his right to consult with counsel for any appreciably significant period of time during trial such that any binding precedent would require granting relief. Moreover, petitioner has pointed to no precedent holding that a trial

court cannot dictate where any such consultation will occur. Rather, the relevant case law indicates that the trial court's actions in this regard passed constitutional muster. Petitioner's ninth ground for relief is without merit, and it is recommended that it be denied. ORAL ARGUMENT *43 As evidenced by this lengthy recommendation, this federal habeas case is unique in that, other than petitioner's claim number 7, there has been no state court resolution of petitioner's other eight claims. The federal court was required to hear these claims initially and without the benefit of state court findings. Consequently, the AEDPA deferential standard is inapplicable. Since eight of these nine claims were considered without any prior state court adjudication, the undersigned considered whether holding oral argument prior to the issuance of these findings, conclusions and recommendation would be of assistance to the Court and such was briefly mentioned at the end of the evidentiary hearing. The post-hearing briefs filed by both petitioner and respondent have adequately addressed the issues to the extent oral argument would be of no additional assistance particularly in light of the fact that both parties will have an adequate opportunity to file objections to this recommendation. Consequently, no oral argument is scheduled. RECOMMENDATION For all of the reasons set forth above, it is the opinion and finding of the undersigned that petitioner, HENRY W. SKINNER, has failed to make a substantial showing of the denial of a federal constitutional right on any of his claims. Petitioner is not entitled to federal habeas corpus relief and his petition for a writ of habeas corpus should be DENIED. ENTERED this 29th day of September 2006. * NOTICE OF RIGHT TO OBJECT * Any party may object to these proposed findings, conclusions and recommendation. In the event a party wishes to object, they are hereby NOTI-

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FIED that the deadline for filing objections is eleven (11) days from the date of filing as indicated by the file mark on the first page of this recommendation. Service is complete upon mailing, Fed.R.Civ.P. 5(b), and the parties are allowed a 3-day service by mail extension, Fed.R.Civ.P. 6(e). Therefore, any objections must be filed on or before th the fourteenth (14 ) day after this recommendation is filed. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b) ; R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be made in a written pleading entitled “Objections to the Report and Recommendation.” Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir.1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir.1988). N.D.Tex.,2007. Skinner v. Quarterman Not Reported in F.Supp.2d, 2007 WL 582808 (N.D.Tex.) END OF DOCUMENT

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West Headnotes United States Court of Appeals, Fifth Circuit. Henry W. SKINNER, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. No. 07-70017. May 14, 2008. Background: Following affirmance of his capital murder conviction and death sentence, 956 S.W.2d 532, and denial of post-conviction relief, 122 S.W.3d 808, petitioner sought federal habeas relief. The United States District Court for the Northern District of Texas, Mary Lou Robinson, J., 2007 WL 582808, adopted the opinion of Clinton E. Averitte, United States Magistrate Judge, and denied petition and, 2007 WL 1953503, denied application for certificate of appealability (COA). Petitioner appealed. Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) counsel was not ineffective in not having DNA tests conducted of crime scene evidence not tested by the state; (2) counsel was not ineffective in failing to impeach witness in whose house petitioner was found several hours after the murder; (3) counsel was not ineffective in failing to present evidence that petitioner believed he was allergic to codeine; but (4) petitioner was entitled to COA on claim that counsel's failure to present blood spatter report at trial caused prejudice; and (5) petitioner was entitled to COA on claim that counsel was ineffective in failing to seek out and present testimony concerning alternative suspect. Application for COA denied in part and granted in part.

[1] Habeas Corpus 197

818

197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)1 In General 197k817 Requisites and Proceedings for Transfer of Cause 197k818 k. Certificate of Probable Cause. Most Cited Cases A petitioner must secure a certificate of appealability (COA) as a jurisdictional prerequisite to appealing the denial of habeas relief. 28 U.S.C.A. § 2253(c)(2). [2] Habeas Corpus 197

818

197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)1 In General 197k817 Requisites and Proceedings for Transfer of Cause 197k818 k. Certificate of Probable Cause. Most Cited Cases When considering application for certificate of appealability (COA), Court of Appeals conducts only a threshold inquiry and must issue a COA if reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. 28 U.S.C.A. § 2253(c)(2). [3] Habeas Corpus 197

818

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granting certificate of appealability (COA), even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. 28 U.S.C.A. § 2253(c)(2). [4] Habeas Corpus 197

818

197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)1 In General 197k817 Requisites and Proceedings for Transfer of Cause 197k818 k. Certificate of Probable Cause. Most Cited Cases In death penalty cases, Court of Appeals resolves in the petitioner's favor any doubt about whether a certificate of appealability (COA) should issue. 28 U.S.C.A. § 2253(c)(2). [5] Habeas Corpus 197

818

197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)1 In General 197k817 Requisites and Proceedings for Transfer of Cause 197k818 k. Certificate of Probable Cause. Most Cited Cases Issuance of a certificate of appealability (COA) must not be pro forma or a matter of course, and a prisoner seeking a COA must prove something more than the absence of frivolity. 28 U.S.C.A. § 2253(c)(2). [6] Criminal Law 110

1891

110 Criminal Law 110XXXI Counsel 110XXXI(C) Adequacy of Representation 110XXXI(C)2 Particular Cases and Issues 110k1891 k. Preparation for Trial. Most Cited Cases Counsel's conduct in not having DNA tests

conducted of crime scene evidence not tested by the state, including hairs clutched in murder victim's right hand, material found under her fingernails, vaginal swabs taken at her autopsy, blood found on two knifes, and hair and perspiration on a man's jacket found near her body, was reasonable trial strategy, and therefore was not ineffective assistance; risk existed that such testing would have revealed that the DNA was defendant's instead of some other person's, which would have been highly probative, incriminating evidence for the prosecution, and conducting its own DNA test would also have deprived the defense of its primary argument at trial that the government conducted a shoddy investigation. U.S.C.A. Const.Amend. 6. [7] Criminal Law 110

1884

110 Criminal Law 110XXXI Counsel 110XXXI(C) Adequacy of Representation 110XXXI(C)1 In General 110k1879 Standard of Effective Assistance in General 110k1884 k. Strategy and Tactics in General. Most Cited Cases A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness. U.S.C.A. Const.Amend. 6. [8] Criminal Law 110

1935

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and who had testified on re-direct that defendant made her “swear to God” not to tell anyone that he thought he had kicked victim to death, with her statement to the police in which she stated that defendant made her promise not to tell numerous stories, and not just the one about killing the victim; counsel conducted an effective cross-examination of witness, eliciting much to suggest that defendant's purported confession to her was unreliable, including that defendant appeared drunk and confused, that much of the time defendant did not even seem to know who witness was, that defendant told witness many things she knew to be untrue or that were demonstrably untrue, and that despite the untruths, defendant swore every story was true. U.S.C.A. Const.Amend. 6. [9] Criminal Law 110

1935

110 Criminal Law 110XXXI Counsel 110XXXI(C) Adequacy of Representation 110XXXI(C)2 Particular Cases and Issues 110k1921 Introduction of and Objections to Evidence at Trial 110k1935 k. Impeachment or Contradiction of Witnesses. Most Cited Cases Failure of counsel for capital murder defendant to impeach witness in whose house defendant was found several hours after the murder, and who had testified on re-direct that defendant made her “swear to God” not to tell anyone that he thought he had kicked victim to death, with witness's statement to the police in which she stated that defendant made her promise not to tell numerous stories, and not just the one about killing the victim for capital murder defendant, did not prejudice defendant, as element of claim of ineffective assistance; counsel later placed that same fact into evidence through another witness, and counsel reminded the jury during closing argument that defendant had not emphasized the story about killing victim over any of the other stories told to witness. U.S.C.A. Const.Amend. 6. [10] Criminal Law 110

110 Criminal Law 110XXXI Counsel 110XXXI(C) Adequacy of Representation 110XXXI(C)2 Particular Cases and Issues 110k1908 Raising of Particular Defense or Contention 110k1912 k. Capacity to Commit Crime; Insanity or Intoxication. Most Cited Cases Defense counsel's failure to present evidence that capital murder defendant believed he was allergic to codeine, so as to bolster the defense theory that, having taken three times the therapeutic dose of codeine on the night of the murders, defendant was too incapacitated to have committed them, did not prejudice defendant, and thus could not amount to ineffective assistance; defendant did not show signs of an allergic reaction to the codeine in his blood on the night of the murder, defense's toxicologist admitted at trial that if defendant was as incapacitated as an ordinary person would have been after taking the codeine with alcohol, defendant would not have been able to do many things he was known to have done on the night of the murder, such as walking four blocks to house where he was subsequently found by police, and defendant's expert witness admitted it was possible the codeine had been taken after the murders had been committed. U.S.C.A. Const.Amend. 6. [11] Habeas Corpus 197

818

1912

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umented blood spots on petitioner's underwear and speculated that the circular shape of the spots indicated that petitioner was in the immediate vicinity of victim at the time of victim's assault, could have bolstered petitioner's theory that another person committed the murder, and that he was too incapacitated to have committed the murders. U.S.C.A. Const.Amend. 6; 28 U.S.C.A. § 2253(c)(2). [12] Habeas Corpus 197

818

197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)1 In General 197k817 Requisites and Proceedings for Transfer of Cause 197k818 k. Certificate of Probable Cause. Most Cited Cases To grant a certificate of appealability (COA) Court of Appeals need not decide the ultimate merits of the underlying issue in the habeas petitioner's favor. 28 U.S.C.A. § 2253(c)(2). [13] Habeas Corpus 197

818

197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)1 In General 197k817 Requisites and Proceedings for Transfer of Cause 197k818 k. Certificate of Probable Cause. Most Cited Cases It was debatable among jurists of reason that counsel was ineffective in failing to seek out and present testimony in capital murder trial of the neighbor of an alternative suspect, so as to warrant a certificate of appealability (COA) from the district court's denial of habeas petition; at pretrial hearing, neighbor testified that a couple of days after the murders, she saw suspect thoroughly clean the carpets and inside of his truck and paint the outside, that she had never seen him clean the truck before, that suspect carried a knife, and that she observed him when police told him that the victims,

who were his niece and her two sons, had been murdered, and he said “okay” without emotion. U.S.C.A. Const.Amend. 6; 28 U.S.C.A. § 2253(c)(2). [14] Criminal Law 110

1891

110 Criminal Law 110XXXI Counsel 110XXXI(C) Adequacy of Representation 110XXXI(C)2 Particular Cases and Issues 110k1891 k. Preparation for Trial. Most Cited Cases Effectiveness in failing to investigate turns on whether the known evidence would lead a reasonable attorney to investigate further. U.S.C.A. Const.Amend. 6. *338 Douglas George Robinson, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, Robert Charles Owen, Owen & Rountree, Austin, TX, for Petitioner-Appellant. Katherine D. Hayes, Austin, TX, for Respondent-Appellee. Appeal from the United States District Court for the Northern District of Texas. Before SMITH, WIENER, and OWEN, Circuit Judges. *339 JERRY E. SMITH, Circuit Judge: Henry Skinner was convicted of capital murder and sentenced to death. He seeks a certificate of appealability (“COA”) from the denial of his petition for writ of habeas corpus. We deny in part and grant in part the application. I. In March 1995, a jury convicted Skinner of murdering his girlfriend, Twila Busby, and her two mentally retarded sons, Randy Busby and Elwin Caler, on New Year's Eve of 1993. Twila, Randy, and Elwin were strangled, bludgeoned, and stabbed

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in their house shortly before midnight. At midnight, a police officer found Elwin, in bloodstained undershorts, sitting on the porch of a neighbor's house with stab wounds under his left arm and on his right hand and stomach. He was taken to a hospital and died shortly thereafter. Investigating Elwin's stabbing, the police went to the home where he lived with Twila, Randy, and Skinner. The police noticed a trail of blood on the ground running from the front porch to the fence line, a blood smear on the glass storm door, and a knife on the front porch. They found Twila dead on the living room floor. She had been strangled into unconsciousness, then beaten on the head with a blunt object at least fourteen times. A bloodstained axe handle and plastic trash bag containing a knife and bloody towel lay nearby. She exhibited signs of recent sexual intercourse. In a bedroom, officers found Randy dead in an upper bunk. His body was lying face down, and he had been stabbed three times in the back. On the door frame between the bedroom and a utility room, officers found a bloody hand print roughly two feet above the floor. Bloody prints were also found on the door knob of the door connecting the utility room to the kitchen and on the doorknob of the utility room door opening to the backyard. The prints were Skinner's. Suspecting Skinner, the police sought and found him at 3:00 a.m. in the house of Andrea Reed, his former girlfriend, standing in a closet wearing heavily bloodstained jeans and socks and bearing a gash on the palm of his right hand. DNA testing showed that blood on Skinner belonged to Twila and Elwin. Skinner appeared intoxicated, and a toxicology test taken at 5:48 a.m. revealed alcohol and codeine. Skinner was arrested, and in a statement to police he claimed not to recall much of what had transpired that evening. At trial, the night's happenings were filled in by others. A friend, Howard Mitchell, went to Twila's and Skinner's home around 10:30 p.m. to give them

a ride to his New Year's Eve party. When he arrived, Mitchell found Skinner passed out on the couch, apparently drunk. Unable to wake Skinner, Mitchell left with Twila for the party, where she was followed around by her drunken uncle, Robert Donnell, who made rude sexual advances toward her. Twila quickly became agitated by Donnell and had Mitchell take her back home. Mitchell dropped her off between 11:00 and 11:15 p.m. and left without going inside. The trail of witnesses runs cold during the fateful hour before midnight but picks up thereafter. At midnight, roughly at the same time the police officer found Elwin, Reed answered a knock at the door of her trailer, which was about four blocks from Skinner's home. Skinner stood outside the door in blood-soaked shirt and pants and wearing socks but no shoes; he told Reed he had been stabbed and shot. He removed his shirt, but Reed could find no injuries except for the cut on the palm of his hand, which she bandaged for him. *340 Skinner stayed with Reed for roughly three hours until the police arrived to apprehend him. Reed testified that Skinner appeared intoxicated and disoriented and made many inconsistent statements about the causes of his injury and the course of events. Reed tried to call police, but Skinner threatened to kill her if she did. Skinner eventually offered to tell Reed what really had happened if she would promise not to tell anyone; she promised, and Skinner told her he thought he had kicked Twila to death. In a later statement to police, he claimed he woke up on the couch to find someone standing over him with a knife and that he ran out of the house. He also guessed that Twila might have killed her sons and cut him with a knife, but FN1 he claimed not to remember plainly. FN1. He stated, â&#x20AC;&#x153;I think that Twila came home drunk and had a knife. I don't know if she stabbed the boys and then we got into a fight or [she] tried to stab me or what the hell happened. I just don't know. But I think she's the one that cut my hand. I

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think that.”

FN3. Id.

At trial, Skinner sought first to show that, because of intoxication, he could not physically have committed the murders. An occupational therapist testified that an injury had deprived Skinner of the hand strength that would have been necessary to strangle Twila in the manner described by the medical examiner. A toxicologist testified that the alcohol and codeine in Skinner's system would have put him in a stupor, and he would not have had the physical coordination to overpower and inflict wounds on the three victims. In rebuttal, the prosecution suggested that Skinner's long history of drug and alcohol abuse gave him more tolerance for the substances than an average person would have, so he had a greater ability to function under the influence. Skinner also suggested that Donnell was the murderer. Skinner presented evidence that Donnell was violent and hot-tempered. On the night of the murder, he was seen drunkenly harassing Twila at the party, and Mitchell claimed that Donnell had “a certain kind of hate” in his eyes. Mitchell also reported that when he returned to the party after driving Twila home, Donnell was no longer there. The defense, however, introduced no physical evidence indicating that anyone besides Skinner and the victims had been in the house at the time of the FN2 murder. FN2. See Skinner v. State, 956 S.W.2d 532, 536-37 (Tex.Crim.App.1997) (reviewing sufficiency of the evidence). II. Skinner was convicted of capital murder and sentenced to death, and the conviction was affirmed FN3 by the Texas Court of Criminal Appeals. Skinner sought federal habeas relief, raising a number of due process, Sixth Amendment, and ineffective assistance claims. Adopting the magistrate judge's findings after an evidentiary hearing, the district court denied relief and denied Skinner's application for a COA on his ineffective assistance claims.

III. [1][2][3][4][5] Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner must secure a COA as a “jurisdictional prerequisite” to appealing the denial of habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also 28 U.S.C. § 2253(c)(2). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” Id. We conduct only a “threshold inquiry” and must issue a COA if “reasonable jurists would find the district court's *341 assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 336, 338, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. In death penalty cases, we resolve in the petitioner's favor any doubt about whether a COA should issue. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). Nevertheless, “issuance of a COA must not be pro forma or a matter of course,” and “a prisoner seeking a COA must prove ‘something more than the absence of frivolity.’ ” Miller-El, 537 U.S. at 337-38, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). To prevail on an ineffective assistance of counsel claim, Skinner must show that trial counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Performance is deficient where counsel's representation falls “outside the wide range of professionally competent assistance” expected of him. Id. at 690, 104 S.Ct. 2052. Prejudice occurs only if “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. IV.

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A. [6] Skinner contends that trial counsel should have conducted DNA tests of crime scene evidence not tested by the state, including hairs clutched in Twila's right hand, material found under her fingernails, vaginal swabs taken at her autopsy, blood found on two knifes, and hair and perspiration on a man's jacket found near her body. The district court held that counsel was not deficient in failing to test that evidence and that the failure was not prejudicial. [7] It is not debatable among jurists of reason that counsel was not deficient in failing to test the evidence. “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial FN4 with obvious unfairness.” FN4. Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir.2003) (quoting United States v. Jones, 287 F.3d 325, 331 (5th Cir.2002)); see also Williams v. Cain, 125 F.3d 269, 278 (5th Cir.1997) (observing that failure to present evidence does “not constitute ‘deficient’ performance within the meaning of [ Washington] if [counsel] could have concluded, for tactical reasons, that attempting to present such evidence would be unwise.”). At the evidentiary hearing, counsel explained that he did not request DNA testing of the additional evidence because of the risk that such testing would reveal that the DNA was Skinner's instead of Donnell's or some other person's. Contrary to Skinner's contention that counsel had “nothing to lose” and “everything to gain” from DNA testing, evidence of Skinner's DNA, such as on a knife handle or under Twila's fingernails, would have been highly probative, incriminating evidence for the FN5 prosecution. Conducting its own DNA test would also have deprived the defense of its primary argument at trial that the government conducted a shoddy investigation. Not knowing what more thor-

ough DNA testing would have uncovered, a jury *342 might have found reasonable doubt in such uncertainty. FN5. Even if the defense would have been able to keep the results of its tests secret, the state had custody of the evidence and would have known which additional items the defense had selected for testing and then could have tested those items itself. Skinner's counsel made an informed, strategic decision that DNA testing was at least as likely to incriminate Skinner as to exonerate him and that additional testing was a gamble not worth taking. Given the “double-edged” nature of that choice, ineffectiveness cannot be established by secondFN6 guessing. FN6. See Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.1999) (deeming failure to present evidence not ineffective because of “double-edged nature of the evidence involved”); Boyle v. Johnson, 93 F.3d 180 (5th Cir.1996) (same). B. [8] Skinner argues that trial counsel should have impeached Reed with a prior written statement during cross-examination. On re-direct examination, Reed testified that Skinner made her “swear to God” not to tell anyone that he thought he had kicked Twila to death. Skinner posits that counsel should have impeached Reed with her statement to the police in which she stated that Skinner made her promise not to tell numerous stories, and not just the one about killing Twila. The district court held that counsel was not deficient in failing to impeach Reed on this point and that the failure was not prejudicial. It is undebatable among jurists of reason that counsel was not deficient in failing to impeach Reed, nor was the failure prejudicial. Skinner's lawyer conducted an effective cross-examination of Reed, eliciting much to suggest that Skinner's

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“confession” to Reed was unreliable. Reed admitted that Skinner appeared drunk and confused, that much of the time Skinner did not even seem to know who Reed was, that Skinner told Reed many things Reed knew to be untrue or that were demonstrably untrue, and that despite the untruths, Skinner swore every story was true. Against this background, the fact that Skinner made Reed promise not to tell many of his stories, and not just the story about killing Twila, adds only marginally to the general picture of unreliability. [9] Counsel's failure to elicit this additional point hardly amounts to “error[ ] so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Washington, 466 U.S. at 687, 104 S.Ct. 2052. Furthermore, the failure to elicit the fact from Reed could not have constituted prejudice, because counsel later placed that same fact into evidence through another witness, defense expert Dr. William Lowry. Counsel also reminded the jury during closing argument that Skinner had not emphasized the story about killing Twila over any of the other stories told to Reed. C. [10] Skinner avers that counsel should have presented evidence that Skinner believed he was allergic to codeine. If Skinner had not taken much codeine in the past, he would not have had a high tolerance for it. This might have bolstered the defense theory that, having taken three times the therapeutic dose of codeine on the night of the murders, Skinner was too incapacitated to have committed them. Trial counsel did not recall the codeine allergy evidence, despite the fact that it was contained in counsel's files, but the district court held that even if counsel was deficient, the failure to present evidence of a codeine allergy caused no prejudice. It is undebatable among jurists of reason that counsel's failure to present evidence of Skinner's perceived codeine allergy does not amount to prejuFN7 dice. If *343 counsel had introduced evidence suggesting that Skinner did not have a tolerance for

codeine, the prosecution could have countered with evidence showing that it was still possible for Skinner to have had such a tolerance. FN7. We reject Skinner's argument that all the failings of counsel nevertheless add up to cumulative prejudice. There is no reasonably debatable cumulative prejudice in this case. Skinner did not show signs of an allergic reaction to the codeine in his blood on the night of the murder, and it is likely that he was not allergic to it. Although he argues that evidence he self-reported a codeine allergy to doctors proves he at least believed he was allergic, the prosecution could have put on witnesses to show that drug users often falsely self-report allergies to get prescriptions for other, stronger drugs. Counsel therefore could not have undisputedly established that Skinner had avoided codeine in the past and had developed no tolerance for it. Even if counsel could have used the evidence to prove that Skinner had no tolerance for codeine, that marginal supporting evidence would have done nothing to overcome the greatest weakness of the defense's intoxication theory. The defense's toxicologist admitted at trial that if Skinner was as incapacitated as an ordinary person would have been after taking the alcohol and codeine, Skinner would not have been able to do many things he was known to have done on the night of the murder, such as FN8 walking four blocks to Reed's house. FN8. Skinner argues that although he had enough functioning to walk to Reed's house, he was in too “stuporous” a state to commit the murder. But this possibility does not change the fact that Skinner was more mobile than an ordinary person would have been under the circumstances. This fact is more substantial evidence of a high tolerance for codeine and alcohol than is the fact that Skinner had reported in the past that he was allergic to codeine.

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This anomaly could have been explained by a FN9 high tolerance for alcohol and codeine. And even without a high tolerance, it could have been explained by the possibility that Skinner took the codeine after committing the murders, perhaps to soothe the pain from his injured hand. Indeed, his expert witness admitted it was possible the codeine had been taken after the murders had been committed at midnight and that this would have explained the high concentration of it in his blood. FN9. Although deeming it “highly improbable” that Skinner could have committed the murders in his “stuporous” state, Skinner's toxicologist seemed to admit the prosecution's tolerance theory, explaining, “A person with drug and alcohol [abuse] would be able to [walk to Reed's home]. So the history of drug and alcohol abuse is very self-explanatory of events how he was capable of being mobile under those conditions.” Presenting the codeine allergy evidence would have bolstered the defense theory of the case only marginally and would not have overcome the theory's greatest weakness. Accordingly, jurists of reason would not debate that the evidence supplied no reasonable probability of acquittal. Counsel's failure to present it at trial caused no prejudice. Washington, 466 U.S. at 694, 104 S.Ct. 2052. D. [11] Skinner avers that trial counsel should have made use of a blood spatter report prepared by Officer Morse Burroughs. The report documents blood spots on Elwin's underwear and speculates that the circular shape of the spots indicate Elwin was in the immediate vicinity of Twila at the time of Twila's assault. In other words, the blood spots could have *344 resulted from Twila's blood flying onto Elwin as she was beaten. Counsel offered no strategic reason for failing to utilize the report, but the district court held that, even if counsel was deficient, the failure caused no prejudice.

Because jurists of reason could debate whether failure to present the blood spatter report caused prejudice, this claim merits a COA. Skinner argues that the blood spatter report proves Elwin was in the same room as Twila while Twila was being assaulted and that the murderer therefore would have had to fend off two live victims at the same time. If true, this would bolster the primary defense theory that Skinner was too incapacitated to commit the murders and would undermine the prosecution's theory that Skinner's bloody hand print on the low part of the bedroom door frame was caused by Elwin's knocking Skinner to the ground in a struggle as Skinner attacked him in the bedroom. It would thereby bolster the defense theory that the hand print resulted instead from the fact that Skinner was “falling-down drunk.” [12] Despite the relevance of the blood spatter report to the defense's theory of the case, however, it requires considerable speculation to conclude that counsel's use of the blood spatter report would have created a “reasonable probability” of acquittal. FN10 Washington, 466 U.S. at 694, 104 S.Ct. 2052. Nevertheless, to grant a COA we “need not decide the ultimate merits of the underlying issue in the petitioner's favor.” Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir.2006), cert. denied, --- U.S. ----, 127 S.Ct. 935, 166 L.Ed.2d 717 (2007). Because jurists of reason might disagree about the impact of the blood spatter report, we grant a COA on this issue. FN10. The report does not establish, beyond mere speculation, that the blood on Elwin was Twila's. Even assuming it was and that the spots were caused in the manner envisioned by the report, the report does not establish that the murderer would have had to contend with two live victims in the room at the same time. Forensic evidence showed that Twila was strangled before she was beaten and thus could have been unconscious at the time Elwin was also in the room. Fi-

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nally, even if the murderer would have had to contend with two victims, it is not evident that Skinner was too intoxicated to have done it. The defense's toxicologist admitted that, according to his assessment, an ordinary person in Skinner's position should not have been able to do most of the things he did on the night of the murder, such as walking four blocks to Reed's house. E. [13] Skinner reasons that counsel should have further investigated Donnell, whom they presented as an alternative suspect, and should have called further witnesses supporting the defense theory that Donnell was the real killer. At trial, counsel called witnesses Howard Mitchell, Sara Mitchell, and Sherry Baker to testify about Donnell. That testimony established that Donnell was violent and quick-tempered, that Donnell and Twila did not always get along, that Donnell had harassed Twila at Howard Mitchell's party, that Donnell had left the party before Mitchell returned from taking Twila home, and that Donnell had previously sexually assaulted Baker. At his hearing in federal district court, Skinner called three additional witnesses, James Hayes, Vicki Broadstreet, and Debra Ellis. The district court held that counsel was not deficient in failing to present these additional witnesses and that the failure was not prejudicial. As the district court explained in detail, much of this new testimony was either unhelpful to Skinner *345 or cumulative of FN11 testimony already given by others. FN11. Skinner argues that counsel may be ineffective even for failing to develop “enough evidence of a certain type,” see Smith v. Dretke, 422 F.3d 269, 283-84 (5th Cir.2005), but any ineffective assistance claim must falter where the evidence to be discovered is so similar and cumulative that failure to find and present it would not prejudice the result. Washington, 466 U.S.

at 694, 104 S.Ct. 2052. No reasonable jurist would debate whether counsel's failure to present the evidence deemed cumulative by the district court was prejudicial. Although Skinner points to new evidence that Twila was having a sexual relationship with Donnell, trial testimony that Donnell lewdly followed Twila around the party had already established a sexual or jealous motive for murder. Likewise, although Skinner points to new evidence that Donnell was violent toward his wife, trial testimony of Donnell's violent nature had already established that. It is undebatable among jurists of reason that counsel's failure to present the testimony of Hayes and Broadstreet was not prejudicial. The only new evidence that was not cumulative or unhelpful was testimony from Ellis. Reasonable jurists could debate whether failure to present her testimony was deficient or prejudicial. Ellis was Donnell's neighbor and a friend of his wife's. At the federal hearing, Ellis testified that a couple of days after the murders, she saw Donnell thoroughly clean the carpets and inside of his truck and paint the outside; she had never seen him clean the truck before. She noted, however, that when she went out to the truck as he was cleaning it, she did not see blood or anything else unusual. Ellis also testified that Donnell carried a knife and that she observed him when police told him his niece and her two sons had been murdered, and he said “okay” without emotion. Ellis's testimony offered strong circumstantial evidence to corroborate the defense theory that Donnell was the murderer. Although the significance of that evidence is tempered by the fact that Donnell exhibited no injuries, and no bloody clothes of Donnell were ever found, jurists of reason could debate whether the failure to present Ellis's testimony caused prejudice. [14] Jurists of reason could also debate whether

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counsel was deficient in failing to seek out Ellis and present her testimony. Effectiveness in failing to investigate turns on “whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Counsel had decided to blame Donnell for the murder and had investigated enough to unearth evidence from witnesses to suggest his guilt. Ellis did report her observations to the police, but they never noted them in a report. Skinner's claim thus amounts to a contention that a reasonable lawyer, knowing that suspicion of Donnell would be important at trial, would have knocked on Donnell's neighbor's door. Although we are “wary of ‘arguments that essenFN12 tially come down to a matter of degrees' ” in the scope of an investigation, reasonable jurists could debate whether a reasonable attorney would have investigated further. FN12. Smith v. Cockrell, 311 F.3d 661, 669 (5th Cir.2002) (quoting Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir.2000), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004)). In summary, the application for a COA is GRANTED with regard to the claim of failure to make use of the blood spatter report and with regard to the claim of failure to discover and present Ellis's testimony; the application for a COA is DENIED with regard to all other claims. We express no view on how any claims should *346 ultimately be resolved; we conclude only that the mild standard for granting a COA has been met as to the two claims mentioned above. C.A.5 (Tex.),2008. Skinner v. Quarterman 528 F.3d 336 END OF DOCUMENT

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Court of Criminal Appeals of Texas. Henry Watkins SKINNER, Appellant v. The STATE of Texas. No. APâ&#x20AC;&#x201C;75,812. Sept. 23, 2009. Background: After defendant's capital murder conviction and death sentence were affirmed on direct appeal, 956 S.W.2d 532, he filed a motion for DNA testing. The 31st District Court, Gray County, Steven R. Emmert, J., denied the motion. Defendant appealed. The Court of Criminal Appeals, 122 S.W.3d 808, affirmed. Defendant filed a second motion for DNA testing. The District Court denied the motion. Defendant appealed. Holding: The Court of Criminal Appeals, Keller, P.J., held that trial counsel's failure to request DNA testing of several items of evidence was reasonable trial strategy, and therefore did not constitute ineffective assistance of counsel. Affirmed. West Headnotes [1] Criminal Law 110

1891

110 Criminal Law 110XXXI Counsel 110XXXI(C) Adequacy of Representation 110XXXI(C)2 Particular Cases and Issues 110k1891 k. Preparation for trial. Most Cited Cases Trial counsel's failure to request DNA testing of several items of evidence was reasonable trial strategy, in prosecution for capital murder, and therefore did not constitute ineffective assistance of counsel; counsel explained that he did not ask for testing because he was afraid that the DNA would belong to defendant, and conducting DNA testing

would have deprived defendant of his primary argument at trial that the government had conducted a shoddy investigation. U.S.C.A. Const.Amend. 6. [2] Statutes 361

181(2)

361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k180 Intention of Legislature 361k181 In General 361k181(2) k. Effect and consequences. Most Cited Cases Statutes 361

188

361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k187 Meaning of Language 361k188 k. In general. Most Cited Cases The Court of Criminal Appeals interprets a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning would lead to absurd results that the legislature could not have possibly intended. [3] Statutes 361

200

361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k187 Meaning of Language 361k200 k. Mistakes in writing; grammar, spelling, or punctuation. Most Cited Cases Statutes 361

208

361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k204 Statute as a Whole, and Intrinsic Aids to Construction 361k208 k. Context and related

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*197 Robert C. Owen, Austin, for Appellant.

clauses. Most Cited Cases Statutes 361

Lynn Switzer, District Attorney, Pampa, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

212.7

361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k212 Presumptions to Aid Construction 361k212.7 k. Other matters. Most Cited Cases In determining the plain meaning of the statutory language the Court of Criminal Appeals reads words and phrases in context and construes the text according to the rules of grammar and usage, and it presumes that the entire statute is intended to be effective. [4] Criminal Law 110

1590

110 Criminal Law 110XXX Post-Conviction Relief 110XXX(C) Proceedings 110XXX(C)1 In General 110k1590 k. Discovery and disclosure. Most Cited Cases Witness's recantation of her prior trial testimony, which allegedly supported defendant's assertion that he was too incapacitated by intoxication on the night of the murders to have committed the murders, did not support a finding that DNA testing of untested evidence from the crime scene would be in the interests of justice; testimony from witness's neighbor, who testified that witness told him, while shaking and crying after the incident, that defendant barged into her house, ran into a back bedroom, and threatened to kill her if she told anyone where he was, and testimony from defendant's ex-wife, who testified that witness told her, while shaking and crying after the incident, that defendant had been to her house, had admitted that he killed the victims, and threatened her if she called anyone, rebutted the witness's recantation and supported a determination that witness's recantation was not credible. Vernon's Ann.Texas C.C.P. art. 64.01(b)(1)(B).

KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. At appellant's trial, some evidence was tested for DNA, and some was not. State and federal district courts have both found that defense counsel had a reasonable trial strategy for not requesting the testing of the untested items. Some of the remaining items were subsequently tested. Appellant now requests testing of items that still remain untested. We hold that, in the usual case, the interests of justice do not require testing when defense counsel has already declined to request testing as a matter of reasonable trial strategy. Under that holding, we affirm the trial court's decision to deny the motion for DNA testing. I. BACKGROUND Appellant lived with Twila Busby and her two adult sons, Randy Busby and Elwin Caler, both of whom had mental retardation. Between 10:15 and 10:30 p.m., on December 31, 1993, Howard Mitchell came to the residence to take appellant and Twila to a New Year's Eve party. Howard found appellant asleep on the couch and was unable to wake him. Appellant had apparently been drinking. Leaving appellant on the couch, Twila and Howard went to the party, but Twila soon asked to be taken home because her uncle, Robert Donnell, was drunk and was following her around, making rude sexual advances, and generally agitating her. Howard drove Twila home between 11:00 and 11:15 p.m., and left. At around midnight, Elwin showed up on a neighbor's porch with stab wounds, from which he subsequently died. Twila was found dead on the living room floor of her home, and Randy's dead body was found lying face down on the top bunk

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bed in the sons' bedroom. Appellant was found by police at Andrea Reed's house, located threeand-a-half to four blocks away, at around 3:00 a.m. When the police found him, appellant was standing in a closet and wearing clothing that was heavily *198 stained in blood on both the front and back. At trial, Andrea testified that appellant arrived at her house at around midnight and that they conversed for three hours. She did not know how he entered her trailer, but when she saw him, he took his shirt off and laid it on a chair. Appellant had a bleeding cut in his right hand. He heated up sewing needles and attempted to bend them to sew up his hand, and then he asked her to sew it, and she agreed. At some point, he went to the bathroom by himself. During their conversation, Andrea attempted to leave the room and call the police, but appellant stopped her and threatened to kill her. Appellant told Andrea multiple stories about what happened at his home. He claimed that a Mexican came to the door and pulled a knife, that Twila was in bed with her ex-husband with whom appellant got into a fist-fight, that appellant thought he had killed Twila by trying to kick her to death, that Ricky Palmer broke into the house, and that cocaine dealers were looking for Twila and wanted her really bad. The medical examiner found that Twila had been strangled into unconsciousness and subsequently beaten at least fourteen times about the face and head with a club. DNA testing matched the blood on appellant's clothing to Twila and Elwin. Three bloody handprints matching appellant's were found in the house: one in the sons' bedroom and two on doorknobs leading out the back door. A toxicological test of appellant's blood, conducted at 5:48 a.m., showed that appellant had 0.11 milligrams of codeine per liter of blood and a blood alcohol level of 0.11. Defense counsel presented three defenses at trial. First, defense counsel focused on the State's failure to test some of the DNA evidence to show that

the State engaged in a sloppy investigation. Second, defense counsel painted Robert Donnell as an alternate suspect who could have committed the murders. Finally, defense counsel presented evidence that appellant was too incapacitated by his intoxication to have committed the murders. Dr. William Lowry, the defense toxicologist, testified that most people at appellant's level of intoxication would be comatose or asleep, and in any event, between 12:00 and 3:30 a.m., appellant would have been in a stupor, with impaired consciousness, general apathy, and an inability to stand or walk. Dr. Lowry believed that appellant was too incapacitated to travel to different rooms to kill the victims. However, Dr. Lowry was surprised that appellant could locate Andrea's house at midnight and that he asked her to sew up his hand. Appellant was convicted of capital murder and FN1 sentenced to death. This Court affirmed his FN2 conviction and sentence on direct appeal. FN1. TEX. PENAL CODE Â§ 19.03(a); TEX.CODE CRIM. PROC. art. 37.071. All references to articles are to the Texas Code of Criminal Procedure. FN2. Skinner v. State, 956 S.W.2d 532 (Tex.Crim.App.1997). In July of 2000, the Gray County District Attorney's Office requested that certain additional items be subjected to DNA testing by GeneScreen. Many items were subjected to traditional genomic DNA testing and/or the newer mitochondrial DNA testing. The genomic DNA testing revealed the following: Twila was included as a contributor to blood on the cover of a blue notebook, a hair found on her back, a hair found in her left hand, and a hair from an axe handle. Appellant was included as a contributor to DNA found on a cigarette *199 butt. Twila and appellant were both included as contributors to a mixed profile from hair in Twila's right hand. Bloodstained gauze reflected the profile of an

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unknown male individual, and a cassette tape with blood on it reflected a profile that was a mixture of two unknown individuals. No conclusion could be drawn about certain other items.

contention that GeneScreen's reports were ambiguous, we upheld the trial court's decision to deny the production of benchnotes that were created by the FN8 company during the course of testing.

Mitochondrial DNA testing revealed the following: The mitochondrial profile of Twila, or any maternal relative of hers, was included in one of two hairs found in her right hand (the “first” hair) as well as some other hairs collected from the scene. Appellant was excluded as a contributor to these hairs. Results from the other hair found in Twila's right hand (the “second” hair) and a hair found in the living room were inconclusive.

FN3. See art. 64.01, et seq.

Several items remained untested, either because the District Attorney's office did not submit them or because the items were submitted but GeneScreen did not test them. Appellant filed a motion FN3 for DNA testing under Chapter 64. He wanted to obtain testing on two knives found at the scene, a rape kit from Twila, a blood-like substance on a cup towel found at the scene, blood from under Twila's fingernails, and hair and blood from a jacket found in the house. The trial court denied the motion, and we affirmed the trial court's decision FN4 on appeal. In our fact recitation, we pointed to the “bloody palm prints” matching appellant and to the fact that appellant's clothing “was covered in FN5 the blood of two of the victims.” In the analysis section of our opinion, we explained that the mixture of appellant's and Twila's DNA in blood found on the hairs in Twila's right hand “demonstrates the intermingling of the victim's and appellant's DNA, probably during the time when FN6 she was struggling for her life.” From this evidence, we concluded that “there is nothing about the other items found at the crime scene that, if linked to a third person, would cast doubt on the appellant's presence at the scene of [Twila's] death or the appellant's involvement in the offense. Given this evidence and the other evidence detailed above, the presence of a third party's DNA at the crime scene would not constitute affirmative evidence of FN7 innocence.” And, disagreeing with appellant's

FN8. Id. at 812.

FN4. Skinner v. State, 122 S.W.3d 808 (Tex.Crim.App.2003). FN5. Id. at 810. FN6. Id. at 811. FN7. Id.

Appellant subsequently filed a habeas corpus petition in federal court. The federal district court found against him on all claims, and he filed an appeal with the Fifth Circuit. While that appeal was pending, he filed a second motion for DNA testing in state district court. In this second motion, he requested testing for the same items requested in the first motion, but he claimed that testing was now required due to a new legal development in this Court and new factual developments in connection with the federal habeas proceedings. The trial court denied testing for a number of different reasons, and appellant appealed. It is that appeal that is now before us. II. ANALYSIS The trial court agreed with appellant that the evidence he seeks to test still *200 exists and is in a condition making DNA testing possible, that the chain of custody is sufficient and the integrity of the evidence has been maintained, that identity was an issue in appellant's case, and that the second motion for DNA testing is not made to unreasonably delay the execution of sentence or the administraFN9 tion of justice. Nevertheless, the trial court denied appellant's second motion for DNA testing for a number of reasons: (1) law of the case, as the issues decided in appellant's first application were virtually identical, (2) failure to show ineffective

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assistance of counsel with respect to the first DNA motion, a showing the trial court believed was the only exception permitting a subsequent DNA motion, (3) failure to meet the “no-fault-of-the-convicted-person” requirement of article 64.01(b)(1)(B) because trial counsel declined to seek DNA testing as “a matter of sound trial strategy,” (4) failure to meet the “no-fault-of-the-convicted-person” requirement of article 64.01(b)(1)(B) because appellant failed to meet his burden of proof on the first DNA motion and has not alleged that counsel on that motion was ineffective, and (5) failure to accompany appellant's second DNA motion with an affidavit or the unFN10 sworn declaration of an inmate. These reasons present a number of interesting legal issues, but we choose to address only the third, and we conclude that the trial court's resolution on that rationale was FN11 correct. FN9. Order on Defendant's Second Motion for DNA Testing, findings 1–4. FN10. Id., findings 5–9. FN11. With respect to (5), we observe that Chapter 64 requires that a DNA motion “be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.” Art. 64.01(a). Appellant claims the affidavit from his first motion was incorporated by reference into his second motion and that such incorporation was sufficient to satisfy the statutory requirement. We do not address this issue. [1] Chapter 64 contains several requirements that must be met before a convicted person may obtain DNA testing. One of these requirements is an “unavailability” showing, which can be satisfied when the record shows one of several scenarios: [The evidence in question ...] (1) was not previously subjected to DNA testing:

(A) because DNA testing was: (i) not available; or (ii) available, but not technologically capable of providing probative results; or (B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or (2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than FN12 the results of the previous test. FN12. Art. 64.01(b). Another requirement is the “different outcome” showing, which is satisfied when “the convicted person establishes by a preponderance of the evidence that ... the person would not have been convicted if exculpatory results had been obtained FN13 through DNA testing.” FN13. Art. 64.03(a)(2)(A). With respect to the unavailability showing, appellant asserts only the “no fault ... interests of justice” scenario found in article 64.01(b)(1)(B). He claims that this unavailability scenario would be satisfied if trial counsel were found to be constitutionally ineffective in failing to seek testing of *201 the items in question. He also claims, based on the FN14 unpublished opinion in Raby v. State, that the interests of justice require testing if such testing could establish guilt or innocence, especially where there exists substantial lingering doubt about whether the convicted person committed the crime. His argument appears to equate the “no fault ... interests of justice” scenario for showing unavailability with the separate “different outcome” requirement. Our reading of appellant's position in this regard is further supported by his much more extensive reliance upon Raby in connection with his argu-

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ment regarding the “different outcome” showing and by his contention that “additional evidence has come to light that further, and dramatically, casts doubt on Mr. Skinner's guilt,” creating circumstances under which “the interests of justice, which the legislature sought to protect via Article 64.03(a)(2)(A), require the testing of the DNA evidFN15 ence identified in [appellant's] First Motion.”

ative provisions as a method of ascertaining the availability of DNA testing. So it is not enough under this provision to claim, as appellant does, that an exculpatory test result would change the outcome of the case. The fact that testing would be outcome-determinative, if conducted, does not mean that the testing was in some sense unavailable.

FN14. No. AP–74,930 (Tex.Crim.App. June 29, 2005)(plurality op.)(not designated for publication).

Moreover, appellant's position would render the article 64.01 availability provisions meaningless. The “no fault ... interests of justice” provision found in article 64.01(b)(1)(B) would be redundant because a convicted person is already required to prove the outcome-determinative nature of testing under article 64.03(a)(2)(A). And by swallowing the “no fault ... interests of justice” provision, an outcome-determinative test would render meaningless the other alternatively phrased availability provisions. There would never be any need to determine whether DNA testing was available, whether it could produce probative results, or whether newer techniques would produce more accurate results. The inquiry under article 64.01(b)'s *202 availability provisions would always revolve around the “no fault ... interests of justice” question because the answer would also resolve the outcome-determinative requirement found elsewhere in the statute. Such an interpretation is simply untenable.

FN15. Emphasis added. [2][3] Under this Court's approach to statutory construction, we interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning would lead to absurd results that the legislature could not FN16 have possibly intended. In determining the plain meaning of the statutory language we read words and phrases in context and construe the text according to the rules of grammar and usage, and we presume that “the entire statute is intended to be FN17 effective.” FN16. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). FN17. Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App.1996); see also TEX. GOV'T CODE §§ 311.011(a), 311.021(2). The “no fault ... interests of justice” provision does not exist in a vacuum. That provision is phrased in the alternative with other provisions that unambiguously address whether DNA testing was available in some fashion to the defendant at trial. DNA testing was not conducted either because it was unavailable, or because the particular technology available at the time would not yield probative results, or testing was conducted but newer technology would yield more accurate and probative results. In context, the “no fault ... interests of justice” provision shares the character of these other, altern-

Nor are we persuaded by appellant's reliance upon our unpublished, plurality opinion in Raby. Under Rule 77.3 of the Rules of Appellate Procedure, unpublished opinions from this Court “have no precedential value and must not be cited as authorFN18 ity by counsel or by a court.” Appellant claims that he cites Raby only as persuasive authority, but the rule prohibits the use of an unpublished opinion as authority of any sort, whether binding or FN19 persuasive. Appellant contends that Rule 77.3 is functionally identical to Rule 47.7, which applies to the courts of appeals and provides that unpublished opinions “have no precedential value but may be cited with the notation, ‘(not designated for FN20 publication).’ ” We disagree. Rule 47.7 used

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to contain the same language found in Rule 77.3, FN21 but the language was changed to accommodFN22 ate changes in civil practice. And appellant's contention that Raby encapsulates the Court's thinking is undercut by its plurality status. And even if an unpublished, plurality opinion could be considered, its persuasive value would be minimal and would not override a statutory construction analysis based on the plain meaning of the statutory text. FN23 FN18. TEX.R.APP. P. 77.3. FN19. The rule does not prohibit citation to an unpublished opinion for the purpose of showing facts or the procedural history of the case. FN20. See id., R. 47.7. FN21. See TEX.R.APP. P. 47.7 (West 2002). FN22. See TEX.R.APP. P. 47, Notes and Comments, 2nd para. (West 2008). FN23. At any rate, we do not believe that the reasoning in the plurality opinion in Raby is inconsistent with our holding today, and the facts in Raby are highly distinguishable because no blood or physical evidence in that case connected the convicted person to the scene of the crime. See Raby, No. AP–74,930, HTML op. at 7. We do agree with appellant that evidence that counsel provided constitutionally ineffective assistance in failing to seek DNA testing of certain items could be sufficient to show that the failure to test was not appellant's fault “for reasons that are of a nature such that the interests of justice require DNA testing.” The reasoning behind permitting challenges to the effectiveness of a trial attorney's representation is that “[a]n accused is entitled to be assisted by an attorney ... who plays the role necesFN24 sary to ensure that the trial is fair.” Conversely, if trial counsel declined to seek testing as a

matter of reasonable trial strategy, then post-trial testing would not usually be required by the interests of justice. To hold otherwise would allow defendants to “lie behind the log” by failing to seek testing because of a reasonable fear that the results would be incriminating at trial but then seeking testing after conviction when there is no longer anything to lose. FN24. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But no showing of ineffective assistance has been made here. Appellant acknowledges that the federal district court decided this question adFN25 versely to his position. Trial counsel explained that he did not ask for testing because he was afraid the DNA would turn out to be appelFN26 lant's. The *203 federal district court found that an incriminating DNA test result of biological material from some of the items, such as from the knife handle, or under Twila's fingernails, or found clutched in her hand, would have been highly probative, incriminating evidence for the prosecution. FN27 The court also concluded that conducting its own DNA test would also have deprived the defense of its primary argument at trial that the govFN28 ernment conducted a shoddy investigation. The court also found that defense counsel reasonably feared that any testing he performed could not be kept secret because the State would know what items he tested and could decide to test them as FN29 well. And the court observed that defense counsel was relieved when the deadline had passed FN30 and the State had done no further testing. Appellant makes no independent argument in this Court to demonstrate that counsel was ineffective. Rather, he relies in his brief solely upon the possibility that the Fifth Circuit might reverse the federal district court's decision. Sometime after appellant's brief was submitted, the Fifth Circuit issued an opinion denying a certificate of appeal on that quesFN31 tion. As we have explained above, the state district court found that the failure to seek DNA

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testing was “a matter of sound trial strategy.” This conclusion is supported by the record. FN25. See Skinner v. Quarterman, 2007 WL 582808 at *29–33 (February 22, 2007) .

investigation and at trial because the police had threatened to arrest her for harboring appellant when she knew that he had warrants against him. FN34 FN32. Skinner, 2007 WL 582808 at *8

FN26. Id. at *29.

FN33. Id.

FN27. Id. at *31.

FN34. Id. at *9.

FN28. Id. at *32. FN29. Id. at *31. FN30. Id. FN31. Skinner v. Quarterman, 528 F.3d 336, 341–42 (5th Cir.2008). [4] We next turn to appellant's contention that evidence in addition to that presented at trial supports the conclusion that DNA testing would be in the interests of justice. The evidence falls into two categories: (1) evidence that buttresses a claim that appellant was too incapacitated by intoxication to have committed the murders, and (2) the results of DNA testing conducted in 2000. Appellant points to three types of evidence relating to his alleged incapacitation: (1) recantations by Andrea Reed, (2) evidence that appellant had previously reported an allergy to codeine, and (3) blood spatter evidence suggesting that Elwin was in the room when Twila was being beaten. At the federal habeas hearing, Andrea testified that she lied when she indicated that appellant entered her house on his own, removed his shirt, FN32 heated needles, and used the bathroom. She claimed that she actually had to assist him in entering the house and using the bathroom and that she heated the needles and removed his shirt because appellant was unable to perform even simple tasks FN33 on his own. She also claimed that she lied when she said that he threatened her and that he merely asked her not to tell anyone. Finally, she claimed she gave false statements during the police

Defense counsel could not have anticipated that Andrea would recant her trial testimony. Assuming, without deciding, that in an appropriate case, new, unforeseeable evidence could cast a new light on what was at the time a reasonable trial strategy so as to require DNA testing in the interests of justice, Andrea's testimony *204 does not do so here. Appellant concedes that the federal district court did not credit her recantation testimony. The federal district court found Andrea's recantation testimony FN35 to be not credible or truthful. FN35. Skinner, 2007 WL 582808 at *16. In arriving at this conclusion, the district court cited a great deal of rebuttal evidence that contradicted the recantations. Gerry Douglas, a neighbor, testified that Andrea told him appellant had come barging into her house, had run into the back bedroom, and had threatened to kill her and her kids if FN36 she told anyone where he was hiding. Appellant's ex-wife Connie Neighbors testified that Andrea told her that appellant had been to her house, had told her that he thought he had killed the victims, and had threatened her if she called anyone. FN37 Both of these statements were made shortly after the incident and the witnesses respectively characterized Andrea as “hysterical” and “shaking FN38 and crying.” In a police statement, Jessica Reed, Andrea's daughter, recalled that applicant banged loudly on the door, identified himself, and entered the house before Andrea reached the living FN39 room. At some point Jessica heard applicant ask where the bathroom was and then say that he knew where it was. She also heard Andrea tell him

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to go back to the living room after he left the bathFN40 room. Jessica no longer remembered the events in question, but she maintained that what she FN41 said in her statement was what happened. Testimony from law enforcement witnesses contradicted Andrea's claim that the police threatened her. FN42

Lowry testified that this information would have bolstered his trial testimony regarding appellant's incapacity argument because a codeine allergy would have enhanced appellant's disability after taking codeine that night, or if appellant incorrectly believed that he was allergic to codeine, he would have avoided it and thus *205 not developed a tolFN47 erance to the drug.

FN36. Id. at *9. FN45. Skinner, 2007 WL 582808 at *23. FN37. Id. FN46. Id. at *24. FN38. Id. FN47. Id. at *23. FN39. Id. FN40. Id. FN41. Id. FN42. Id. at *9â&#x20AC;&#x201C;10. The state district court adopted the federal disFN43 trict court's rejection of Andrea's recantation. We review deferentially the state district court's deFN44 termination of the credibility of a recantation, and the state district court's finding in this case is supported by the record. FN43. See Order, finding 15. FN44. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). With respect to the codeine and blood spatter evidence, appellant's claim in the federal habeas proceedings was that counsel was ineffective. Assuming, without deciding, that ineffective assistance with respect to non-DNA evidence could, in an appropriate case, impact the reasonableness of a trial strategy to forgo DNA testing, we nevertheless reject appellant's contentions. In the federal habeas proceedings, appellant presented evidence that he had informed defense counsel in a letter that he was allergic to codeine and that he had self-reported a FN45 codeine allergy in various hospital visits. Counsel did not recall seeing the information, and FN46 he did not discuss it with Dr. Lowry. Dr.

The federal district court assumed, for the purposes of argument, that trial counsel performed deficiently in failing to inform Dr. Lowry that appellant might be allergic to codeine, but the court held FN48 that appellant was not prejudiced. We find the following facts cited by the federal district court to be significant with respect to that conclusion and with respect to the case at hand: Appellant did not appear to have an allergic reaction to the codeine in FN49 his system on the night of the offense. Appellant's ex-wife testified that appellant was not allergic to codeine, but he did not like to use it because FN50 it was not strong enough. Dr. Michael Chamales, an emergency room medical director who was an emergency room doctor who treated appellant in October 1993, testified that appellant selfreported having a codeine allergy, but appellant FN51 was also caught trying to steal syringes. Dr. Chamales further testified that, in his experience, drug seekers will report false allergies so that doctors will be directed to prescribe more desirable FN52 medications. Appellant also reported an allergy for Toradol but had a prescription for it filled FN53 in June of 1993. Appellant did supply the testimony of Lori Brim, a friend of his, who suggested that she saw appellant have an allergic reaction to codeine many years ago, but this was based on a suggestion made over the telephone by a nurse, not the diagnosis of a medical professional. FN54

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FN48. Id. at *24.

We find persuasive several facts cited by the federal district court on this matter. The medical examiner had testified that Twila would have been unconscious from strangulation before she was beaten, so she could have been unconscious or dead FN60 *206 before Elwin entered the room. And Elwin suffered from disabilities: He was “slow” and had muscular dystrophy and diabetes, and these disFN61 abilities prevented him from working. Given these conditions, he might not have been able to FN62 mount an effective defense.

FN49. Id. FN50. Id. FN51. Id. at *23. FN52. Id. FN53. Id. at *24. FN54. Id. Appellant also claims that blood spatter evidence shows that Elwin must have been in the room when Twila was killed and that appellant, in his intoxicated state, was not likely to have overcome both victims at the same time, especially since Elwin was six feet six inches tall and weighed 225 pounds. In the federal habeas proceedings, appellant claimed that trial counsel was ineffective for failing to use this evidence at trial and show it to FN55 his expert, Dr. Lowry. Dr. Lowry testified that this evidence would have bolstered his testimony because he would have testified that appellant did not have the capacity to kill Twila while fending FN56 off her son. The federal district court assumed that counsel's performance was deficient but found FN57 no prejudice. The Fifth Circuit said that a finding of prejudice on this issue would require “considerable speculation,” but it held that the issue was arguable and granted a certificate of appeal. FN58 In a later appeal, the Fifth Circuit rejected appellant's contention and affirmed the district court. FN59 FN55. Id. at *21. FN56. Id. FN57. Id. at *22. FN58. Skinner, 528 F.3d at 344. FN59. Skinner v. Quarterman, 576 F.3d 214, 217–19 (5th Cir.2009).

FN60. Skinner, 2007 WL 582808 at *22. FN61. Id.; see also Skinner, 956 S.W.2d at 535, 535 n. 2 (Elwin and Randy were referred to as “mentally-retarded” at trial, but their levels of functioning were not elaborated upon). FN62. See Skinner, 2007 WL 582808 at *22 (“Thus, even given his size ... Elwin's ability to fight back or escape might have been lower than persons his size without disabilities”). Moreover, a number of other facts indicate that appellant did possess the capacity to commit the murders. Appellant walked three-and-a-half to four FN63 blocks from his home to Andrea's house. This was inconsistent with what Dr. Lowry thought a person with the amount of codeine and alcohol in FN64 appellant's system could do. Further, Dr. Lowry acknowledged that it was possible that appellant took the codeine after the murders, possibly FN65 to soothe the pain in his injured hand. In addition, appellant told authorities that they would be amazed what he did “mind-wise” when he was drunk, as he can read and do math, and he even defended himself successfully in traffic court once, although he does not remember things afterwards. FN66 And appellant's long history of alcohol and drug abuse does suggest that he would be more FN67 drug tolerant than the average individual. FN63. Id. at *15; see also Skinner, 528

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F.3d at 343, 343 n. 8, 344 n. 10. FN64. See Skinner, 2007 WL 582808 at *25; Skinner, 528 F.3d at 344 n. 10. FN65. Skinner, 2007 WL 582808 at *23, *25; Skinner, 528 F.3d at 343. FN66. Skinner, 2007 WL 582808 at *17. FN67. See Skinner, 528 F.3d at 340. In addition, other evidence circumstantially linking appellant to the crime suggests that he must have had the capacity to commit it. A substantial amount of incriminating physical evidence connected appellant to the crime: DNA testing of blood stains on his clothing showing a match with Twila and Elwin, the serious cut in appellant's right hand, the matching handprints found in the house, and the mixed profile containing appellant's and Twila's DNA. Appellant linked himself to the crime in a statement to the police in which he said that he thought Twila gave him the cut on the hand that night and they may have gotten into a fight, but he FN68 claimed not to remember plainly. And because the district court found Andrea's recantation to be not credible, we also take into account her original story that appellant came into her house on his own power and used threats to prevent her from calling the police or anyone else. Moreover, other incriminating information related by Andrea was not recanted: the multiple stories about what happened that night and appellant's instructions to Andrea to stitch up his hand and not to call anyone. FN69 Given these circumstances and all of the other evidence discussed, we conclude that appellant's proffered evidence on the issue of incapacity does not call into question defense counsel's strategy to forgo DNA testing. FN68. See Skinner, 528 F.3d at 340, 340 n. 1. FN69. See Skinner, 2007 WL 582808 at *11–12, *17.

Finally, we address appellant's reliance on the DNA testing conducted in 2000. Assuming, without deciding, that in an appropriate case post-trial DNA testing *207 could cast a new light on what was at the time a reasonable trial strategy not to seek testing, so as to require further DNA testing in the interests of justice, we decide that such is not the case here. Appellant contends that mitochondrial testing of the first hair in the victim's right hand revealed that it came from one of the victims or a maternal relative of the victims, which would include the defense's alternate suspect, Robert Donnell. Appellant claims that mitochondrial testing of the second hair shows that it did not come from the victims or appellant. He contends that these results “raise the very real possibility that Donnell or another outsider to the household was the real murderer.” He suggests that raising such a “very real possibility” is sufficient grounds for obtaining DNA testing. We are not persuaded. By itself, a mitochondrial test result linking the first hair to one of the victims or a maternal relative of the victims means nothing. Portions of the federal habeas hearing are included in the record before us. Dr. William Shields, the defense DNA expert at the federal habeas hearing, explained that, usually, all maternal relatives have the same mitochondrial DNA signature. So any hair from Twila would also match her two sons, her mother, and any uncles and aunts that are children of her maternal grandmother. Dr. Shields acknowledged that, under most circumstances, mitochondrial DNA testing was not a useful method of distinguishing between maternal relatives. He testified that paternal leakage can occur, but it does so in less than one in a million instances. So, if Robert Donnell is a maternal relative of the victims, as appellant suggests, then a mitochondrial testing result that matches the victims' maternal line does not, by itself, convey any meaningful information about his potential involvement in the offense. And appellant does not proffer any other information to suggest that the first hair came from someone other than the victims.

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Appellant's claim that the second hair did not come from him or the victims is based upon testimony from Dr. Shields at the federal habeas hearing. Though the GeneScreen report says that the test result was “inconclusive,” Dr. Shields disagreed, based upon underlying data obtained during federal discovery proceedings. Dr. Shields concluded that Twila (and presumably her sons) were absolutely excluded as contributors of the mitochondrial DNA due to differences on many of the reference points. Based upon one absolute difference and two other differences “on the face,” he concluded that appellant was more likely than not excluded as a contributor. He acknowledged that a difference in one base pair might not be enough to exclude a person. Dr. Shields further testified that “based on today's standards it would be rational, though I think wrong, based on what I saw, to say that you couldn't make a decision to exclude or include” appellant. “In other words, I would not exclude him from attributing that hair myself, not in that sort of sense, but I believe it's more likely to exclude than include.” In an affidavit submitted before his testimony, Dr. Shields related that he had been provided a report of a December 2000 telephone conversation between GeneScreen and the District Attorney, which included a statement that the second hair likely came from appellant, but the written report changed this conclusion to “inconclusive.” Dr. Shields found both of these conclusions to be inexplicable. Dr. Shields acknowledged that he was working from incomplete data. He testified that a review of the electronic data was necessary to confirm the hard copy data, but, though he possessed a compact disc *208 purporting to contain electronic data, the data was not in usable form. He also testified that the hard copy data was incomplete. William Watson, a senior forensic scientist at GeneScreen, testified that he gave an “inconclusive” result because he determined that he was dealing with a mixed sample, and it would not have been appropriate to interpret a mixed sample.

FN70

According to a mitochondrial testing protocol that Dr. Shields acknowledged was used in the industry, “interpretations regarding the sources of mixtures should be made very cautiously, if at all.” Dr. Shields nevertheless maintained, “I've reviewed many protocols. And all of them allow for interpretation of mixed samples, especially exclusions.” But Dr. Shields also admitted that DNA samples could be contaminated much more easily for mitochondrial DNA testing purposes than for genomic DNA testing purposes. FN70. See Order, finding 13; Skinner, 2007 WL 582808 at *30. Dr. Shields also maintained that the sample was not a mixture but was not asked to specifically elaborate on that conclusion. He later read the following passage from the submitted protocol: “The possibility of a mixture should be considered when more than one peak occurs in a particular based position, that is not presumed to be due to background noise, messy data, irregular spacing, heteroplasmy, et cetera. A mixture of mtDNA from two people will show two different peaks in all the base positions where one person's sequence differs from the other.” Then, after reading the sentence urging caution in evaluating mixed samples, Dr. Shields concluded, “So all I'm saying about this particular thing is that it, like most other interpretation guidelines, recognizes that there are things that may look a little bit like mixtures, but they are (inaudible) interpretation.” Appellant's evidence regarding the second hair is simply too tenuous and speculative to warrant consideration. Even if we accept Dr. Shields's opinion that the victims were excluded as contributors, that would also mean that Robert Donnell was excluded, if, as appellant claims, he was a maternal relative. Dr. Shields's conclusion that appellant was excluded was far more shaky. In saying that appellant was more likely than not excluded, Dr. Shields was in essence acknowledging up to a 49 percent chance that appellant was in fact the contributor. Dr. Shields expressed understanding that a lab

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would be reasonable in refusing to make an exclusion determination. Although he claimed that the sample was not mixed, his testimony was brief and ambiguous on that matter, and he seemed to disagree with the only protocol presented on whether it was advisable to interpret a mixed sample.

case require us to retrospectively second-guess a trial strategy that was reasonable at the time, the evidence presented here does not require us to do so.

In contrast, Watson unambiguously testified that he was dealing with a mixed sample, and interpreting a mixed sample was not appropriate. The FN71 state district court credited this testimony. Unlike Dr. Shields, Watson had access to the samples themselves and, presumably, the complete data generated during testing. Genomic testing revealed a mixed sample of appellant's and Twila's DNA on those very hairs, and it may well be that it was that mixture that contaminated the second hair, rendering a mitochondrial DNA test unreliable. FN72

WOMACK, J., concurred.

The judgment of the trial court is affirmed.

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FN71. Order, finding 13. FN72. The state district court also found, based upon findings in the federal district court, that the DNA result on the second hair was not significant because the home was an area of high traffic, and even if the hair were Robert Donnell's, he had been in the home on many occasions. Order, finding 13. We do not decide whether those findings can be reconciled with the position of the district court in finding 12 and our holding in the appeal from appellant's first motion for DNA testing that the presence of a mixed sample on hairs contained in Twila's right hand was highly incriminating evidence that showed that appellant's DNA was deposited during Twila's struggle for her life. *209 In conclusion, the record does not show the unavailability of DNA testing under the â&#x20AC;&#x153;no fault ... interests of justiceâ&#x20AC;? provision because defense counsel's decision to forgo testing was a reasonable trial strategy. And assuming, without deciding, that post-trial evidence could in an appropriate

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CERTIFICATE OF SERVICE I certify that on June 2, 2011, the above and foregoing document was served, via the Courtâ&#x20AC;&#x2122;s CM/ECF Document Filing System, upon the following registered CM/ECF users:

Robert C. Owen OWEN & ROUNTREE P.O. Box 40428 Austin, TX 78704 robowenlaw@gmail.com Maria Cruz Melendez SKADDEN ARPS SLATE MEAGHER & FLOM, LLP Fourt Times Square New York, NY 10036 maria.cruzmeledez@skadden.com Douglas Robinson SKADDEN ARPS SLATE MEAGHER & FLOM, LLP 1440 New York Ave. NW Washington, DC 20005 drobinso@skadden.com COUNSEL FOR PLANTIFF

/s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General