IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70008

DAVID LEE POWELL

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States United States District Court

for the Western District of Texas, Austin

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Following his third punishment trial in 1999, David Lee Powell was

convicted and sentenced to death for the 1978 capital murder of Austin Police

Officer Ralph Ablanedo. We granted a certificate of appealability (COA)

authorizing Powell to appeal the district court’s denial of federal habeas relief.

Powell v. Quarterman, 2001 WL 1747001 (5th Cir. Apr. 16, 2008) (unpublished).

We now AFFIRM the judgment of the district court.

I.

We set out the facts and procedural history in our unpublished order

granting a COA. We repeat them here for purposes of convenience. Powell was

valedictorian and “most likely to succeed” in his high school class. After

United States Court of Appeals

Fifth Circuit

F I L E D

July 16, 2008

Charles R. Fulbruge III

Clerk
No. 06-70008

2

graduating from high school a year early, he was accepted into the Plan II

Honors Program atthe University of Texas. While there, he became an anti-war

protester and began using drugs. He never finished college. By 1978, when he

was 28 years old, he had become a heavy user of methamphetamine and was also

selling it. He was wanted by the police for misdemeanor theft and for passing

over 100 bad checks to merchants in the Austin area. He had become so

paranoid that he had begun carrying around loaded weapons, including a .45

caliber pistol, an AK-47, and a hand grenade.

On May 17, 1978, Powell asked his former girlfriend, Sheila Meinert, to

drive him from Austin to Killeen, Texas. They went in Powell’s car, a red

Mustang. Powell had the .45, the AK-47, and the hand grenade with him, as

well as a backpack containing about 2 1/4 ounces of methamphetamine.

Officer Ablanedo was on duty in his marked patrol car when he spotted the

Mustang and noticed that it did not have a rear license tag. He pulled the

vehicle over. Meinert got out of the car and approached Ablanedo. She told him

that she had lost her driver’s license, but showed him her passport. Ablanedo

also checked Powell’s driver’s license and asked the dispatcher to run a warrant

check on Meinert and Powell. The dispatcher informed Ablanedo that the

computers were not functioning properly, but that there were no local warrants

for Meinert. Ablanedo gave Meinert a ticket for failing to display a driver’s

license and allowed her and Powell to leave. Moments later, the dispatcher told

Ablanedo that Powell had a “possible wanted” for misdemeanor theft. Ablanedo

signaled for Meinert to pull over again. Meinert testified that she got out of the

car and as she was approaching the officer, she heard a very loud noise and ran

back to the car. As Ablanedo approached the Mustang, Powell shot him with the

AK-47, in semi-automatic mode, through the car’s back window, knocking

Ablanedo to the ground. As Ablanedo tried to get up, Powell fired at him again,

after switching the AK-47 to automatic mode.
No. 06-70008

1 Dr. John Blewett, an emergency room physician, and Austin Police Officer Roger

Napier, testified that they, too, heard Ablanedo say “that damn girl” when he was in the

emergency room prior to his death.

3

Bobby Bullard, who happened to be driving by on his way home from work,

witnessed the shooting of Ablanedo. He testified at trial that he saw shots fired

from the Mustang that knocked out the back windshield. He saw a man sitting

in the middle of the front seat, lying on top of the console, sort of into the back

seat. He said that the man who fired the shots had long hair and was wearing

a white t-shirt, and at trial he identified Powell as the man he saw that night.

Edward Segura, who lived in the area, heard what he thought sounded like

machine gun fire. When he went outside, he saw a red Mustang driving away.

Segura testified that Ablanedo said that he had been shot. When Segura asked,

“who was it,” Ablanedo replied, “a girl.”

When the dispatcher learned thatthere was a possible warrantfor Powell,

as a matter of routine, she sent Officer Bruce Mills to assist Ablanedo. When

Mills arrived at the scene a few minutes later, he found Officer Ablanedo lying

on the ground. Although Ablanedo wore a bullet-proof vest, it was not designed

to withstand automatic weapon fire. Ablanedo suffered ten gunshot wounds and

died on the operating table at the hospital, about an hour after he was shot.

Bullard, his wife Velma, who came outside after seeing the lights from the

police car, Segura, and Officer Mills all attempted to aid Ablanedo while waiting

for the ambulance to arrive. All of them testified that Ablanedo said, repeatedly,

“that damn girl” or “that Goddamn girl.”1 Mills testified that Ablanedo told him

that a girl and a guy were in the car, and that they were armed with a shotgun

or machine gun. Mills said that Ablanedo told him, twice, that “He got me with

the shotgun.”

Apparently one of the shots fired by Powell flattened one of the Mustang’s

rear tires. Meinert drove the car into the parking lot of a nearby apartment
No. 06-70008

4

complex. Officer Villegas, who was en route to the scene and who had heard a

description of the Mustang in the dispatcher’s broadcast, spotted the vehicle in

the apartment complex parking lot and pulled in. He immediately came under

automatic weapon fire. He testified that a male with medium length hair and

no shirt was firing at him. More police officers arrived, and a shoot-out ensued.

Miraculously, no one was shot.

Sheila Meinert testified that Powell handed her a hand grenade in the

apartment complex parking lot and told her to remove the tape from it. She said

that she started peeling tape off the grenade, but was hysterical and shoved it

back at him and she did not know what he did with it.

Officer Bruce Boardman testified that the shooting in the apartment

complex parking lot came from a person at the passenger side of the Mustang.

He said that he saw that person appear again, making “a throwing motion” over

the top of the Mustang, and simultaneously, a female at the driver’s side of the

Mustang ran away from the car, screaming hysterically and flailing her arms.

The person atthe passenger’s side (Powell), after making the “throwing motion,”

began running away from the scene toward the grounds of a high school across

the street.

Later, officers found a live hand grenade about ten feet away from the

driver’s door of Officer Villegas’s car that was parked in the same parking lot.

The pin for the grenade was discovered outside the passenger side of the

Mustang where the person making the throwing motion had been. The grenade,

which had a kill radius of 16 feet and a casualty radius of 49 feet, did not explode

because the safety clip had not been removed. The State presented evidence that

it was likely that only someone who had been in the Army (Powell had not)

would have been familiar with the concept of a safety clip (also known as a

jungle clip), which was added to the design during the Vietnam War to keep

grenades from exploding accidentally if the pin got caught on a branch.
No. 06-70008

5

Meinert was arrested in the apartment complex parking lot. She was later

convicted as a party to the attempted capital murder of Officer Villegas. Powell

was arrested a few hours later, around 4:00 a.m. on May 18, after he was found

hiding behind some shrubbery on the grounds of the high school. Powell’s .45

caliber pistol was found on the ground near where he was hiding, and his

backpack containing methamphetamine with a street value of approximately

$5,000 was found hanging in a tree.

Law enforcement officers searched the Mustang and recovered handcuffs,

a book entitled “The Book of Rifles”, handwritten notes about weapons, cartridge

casings, the AK-47, a shoulder holster, and a gun case. Following a search of

Powell’s residence, officers seized another hand grenade, methamphetamine,

ammunition, chemicals and laboratory equipment for the manufacture of

methamphetamine, and military manuals.

In September 1978, Powell was convicted and sentenced to death for the

capital murder of Officer Ablanedo. His conviction and sentence were affirmed

on direct appeal. Powell v. State, 742 S.W.2d 353 (Tex. Crim. App. 1987). The

Supreme Court vacated and remanded for reconsideration in the light of

Satterwhite v. Texas, 486 U.S. 249 (1988). Powell v. Texas, 487 U.S. 1230 (1988).

On remand, the Texas Court of Criminal Appeals reaffirmed Powell’s conviction

and sentence. Powell v. State, 767 S.W.2d 799 (Tex. Crim. App. 1989). The

Supreme Court vacated Powell’s sentence. Powell v. Texas, 492 U.S. 680 (1989).

Powell was convicted and sentenced to death again following his second

trial in November 1991. Although the Supreme Court had vacated only the

sentence, Texas law at that time required a retrial of the entire case even if the

reversal was only for sentencing error. On direct appeal, the Texas Court of

Criminal Appeals affirmed the conviction, but vacated the sentence and

remanded for a new sentencing trial, because the trial court had not instructed

the jury to answer the special issue on deliberateness. Powell v. State, 897
No. 06-70008

6

S.W.2d 307 (Tex. Crim. App. 1994). By that time, Texas law had changed and

no longer required a retrial of the entire case when reversal was only for

sentencing error.

Powell filed a petition for a writ of certiorari, claiming that he was entitled

to a complete new trial, and not just a new trial on punishment. The trial court

stayed the proceedings until the Supreme Court denied certiorari. Powell v.

Texas, 516 U.S. 808 (1995).

Powell then filed a motion in the trial court to set aside his conviction and

for a complete new trial on guilt or innocence as well as punishment. The trial

court denied that motion on May 21, 1996.

Before Powell’s third trial began, the defense tried to establish that

Meinert was involved in the shooting of Ablanedo and in the exchange of gunfire

with officers in the apartment complex parking lot. In pursuit of that theory,

they retained a metallurgistto conduct chemical analysis ofthe bulletfragments

recovered from Ablanedo’s body after exhumation and a second autopsy in 1998.

They also subpoenaed Meinert’s parole records.

The testing by the defense expert was incomplete at the time the third

trial commenced in February 1999. After they were denied a continuance,

defense counsel made a strategic decision not to present any evidence of their

“two-shooter” theory. Instead, Powell’s counsel told the jury in his opening

statement that Powell was responsible for every aspect of the crime, that

Meinert had no part in it, and that, therefore, he would not ask the State’s

witnesses “a single question” about the circumstances of the crime because

“there’s not going to be a question about how it was done.” The defense theory

was that Powell was no longer a future danger. In order to preclude the

prosecution from introducing victim impact evidence, Powell waived his right to

a special issue on mitigating evidence.
No. 06-70008

7

Meinert’s parole records were delivered to the trial judge on March 1, the

sixth day of the State’s case and the day before Meinert testified. The trial

court, after in camera examination, released the records to defense counsel.

Meinert’s parole file included the following documents:

(1) A seven-page document on TDCJ letterhead containing an “official

version” of the offense.

(2) A document entitled “Statement of Fact Form,” executed by Assistant

District Attorney Rosemary Lehmberg. It and the “official version” of the offense

stated that Officer Ablanedo was shot severaltimes, fell to the ground, and tried

to get up, “but as he did, they shot him again, killing him,” and that as soon as

Officer Villegas approached the red Mustang in the apartment complex parking

lot, “they began firing at him and other officers at the scene.” (Emphasis added.)

(3) A July 21, 1988 letter written by Austin Police Association president

Dell Shaw, accusing Meinert of throwing a hand grenade at Officer Villegas,

along with 25 pages of signatures of police officers and others.

(4) A May 27, 1987 letter authored by then Assistant District Attorney

Terry Keel, requesting that the Board deny parole to Meinert, with an attached

letter authored by Arlene Ablanedo-McNeill, the victim’s sister, accusing

Meinert of throwing a hand grenade at Officer Villegas, accompanied by ten

pages of signatures of police officers and law enforcement personnel.

(5) A September 22, 1988 letter written by Arlene Ablanedo-McNeill,

protesting Meinert’s parole and stating that Meinert threw a hand grenade at

Officer Villegas, accompanied by 17 pages of signatures of police officers and

others.

The persons, among the myriad others, who signed the letters to the parole

board accusing Meinert of throwing the hand grenade include: (1) Officer Bruce

Boardman, who was the only witness who testified at Powell’s trial that Powell

threw the grenade; (2) Terry Keel, the lead prosecutor at Powell’s second trial;
No. 06-70008

2

In a formal bill of exception filed in the trial court in March 1999, Powell stated that

the court instructed counsel not to use Meinert’s parole records to cross-examine her. The

record does not support that statement. In denying the defense request for an adjournment,

the trial court stated that the parole file documents were inadmissible hearsay. Just before

Meinert testified, defense counsel told the court that the defense was not going to use the

documents from Meinert’s parole file, because the defense received the material too late to

develop the two-shooter theory.

8

(3) Robert Smith, the lead prosecutor at Powell’s third trial; (4) Officers Justin

Shaffer andLupeTrevino, who testified aboutPowell’s arrest; (5) Officer Napier,

who testified about Meinert’s statement to the police; (6) Bruce Mills, who

testified about Ablanedo’s dying declaration; and (7) six officers who testified

about various aspects of the investigation.

Powell moved for a continuance in order to attempt to interview the

persons who signed the letters, but the trial judge denied it. Although counsel

was furnished parole records a day before Meinerttestified, he made no attempt

to use the parole records in cross-examination or in an attempt to establish that

Meinert threw the grenade or that she otherwise played a role in the shooting

or the grenade episode.2

As proof of future dangerousness, the State relied primarily on the facts

ofthe murder and the shoot-out atthe apartment complex parking lot, including

the throwing of the hand grenade. In addition, the State presented evidence

that in 1970, Powell stole a car and used false identification, and that, in early

1978, he followed a maintenance worker home with a knife after the worker

prevented him from breaking into a storage building where his landlord had

stored his property after he failed to pay his rent. The State also presented

evidence of incidents occurring during Powell’s incarceration following

Ablanedo’s murder. In October 1978 he was displeased with the television

program being shown in the prison and spat on a corrections officer. In

February 1979, he spat at an employee at Rusk State Hospital after the

employee told him he would have to get up at 6:00 a.m. to use a razor. In April
No. 06-70008

9

1979, he beat on a door with a chair because he was angry after security would

not let him have some food that a visitor had brought to him, and he told a

security technician at Rusk State Hospital that he could make $2000 by

arranging an escape. In May 1979, he kicked a guard in the courtroom when the

guard restrained him while he was trying to hug or kiss his girlfriend. In 1988,

he received a disciplinary report for having an extra pair of socks and shorts. In

1989, he received a disciplinary report for playing his radio too loud. In 1990,

he received a disciplinary report for not making his bed before 6:00 a.m. Also in

1990, he kicked and banged on a door when he was not allowed to use the

telephone to call his attorney. During jury selection for his 1991 trial, he became

angry and cursed a guard when he was not allowed to have contact lens wetting

solution for his sore eyes. In 1992, he put his foot in front of the door to the day

room when a corrections officer was trying to close the door. Finally, in 1996, he

received a disciplinary report for refusing to obey an order to remove a poster

from the wall of his cell.

Powell’s counsel presented evidence that Powell had been a smart, wellmannered, courteous, law-abiding young man with great promise. He grew up

on a dairy farm and attended a rural school. He was exceptionally bright. He

was valedictorian of his very small high school class, and graduated a year early.

He entered the honors program atthe University of Texas. But his life soon took

a decided turn downhill. He began using drugs, which led to his debilitating

addiction, drug dealing, thefts, and increasingly irrational behavior. The

defense also presented evidence that once he settled down in prison his attitude

took a turn much for the better. Powell became a model prisoner and had

developed positive relationships with many Texas citizens. His family and

friends testified that, once his involvement with drugs ended after he went to

prison, Powell was very much like the young man they had known before he

became involved with drugs -- pleasant, sociable, friendly, and helpful to others.
No. 06-70008

10

Several prison guards testified for the defense that Powell was quiet, wellmannered, and not a troublemaker in prison. There was evidence that he had

helped other inmates learn to read, and that he was involved with other citizens

in various forms of volunteer work. He was also admitted to the work-capable

program, and had a job in the prison garment factory, where he had access to

scissors and other sharp instruments. The assistant plant manager testified

that Powell was a good worker in the garment factory.

Thus, nearly all of the evidence of future dangerousness related to the

events before Powell went to prison. Furthermore, in closing argument,

prosecutor Darla Davis referred to Dr. Wallace’s testimony when arguing that

Powell was not under the influence of drugs at the time of the murder and shootout. In his final closing argument, prosecutor Robert Smith argued, among other

points,thatPowell’s future dangerousness was evidentfrom the factthat he was

in full control, and not crazed on drugs, when he shot Ablanedo and threw the

hand grenade:

You want to pretend to me that David Lee Powell knew

there was tape on that grenade when he threw it? He’s

hunkered down in the Mustang in a fire fight for his

life. He gave it to Sheila and told her what to do. You

see the photograph, it’s ten feet from Villegas’ patrol

car. You think he wasn’t trying to kill people?

The jury answered the special issues on deliberateness and future

dangerousness affirmatively and the trial court sentenced Powell to death.

Powellfiled a motion for new trial in which he argued, among other things,

that his due process rights were violated by the untimely disclosure of the

exculpatory evidence in Meinert’s parole file. In response, the state presented

affidavits from Lehmberg, Shaw, and others who signed the protest letters, in

which they stated that they had no personal knowledge regarding whether

Meinert fired any shots at either scene or threw the hand grenade. The trial

court denied Powell’s motion for a new trial.
No. 06-70008

11

The Court of Criminal Appeals affirmed Powell’s sentence. Powell v. State,

No. 71,399 (Tex. Crim. App. 2002) (unpublished). The Supreme Court denied

certiorari. Powell v. Texas, 537 U.S. 1015 (2002).

Powell filed an application for state habeas relief in September 2001. The

Texas Court of Criminal Appeals denied relief in September 2002. Ex parte

Powell, No. 7,407-02 (Tex. Crim. App. Sept. 25, 2002) (unpublished order).

Powell filed a petition for federal habeas relief on October 30, 2003. The

district court adopted the magistrate judge’s report and recommendation and

denied relief on December 27, 2005. The district court also denied a COA.

II.

A.

Based on our limited, threshold inquiry and general assessment of the

merits of Powell’s claims, we granted a COA authorizing him to appeal the

denial of habeas relief for the following three claims:

Claim 1. Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.

Arizona, 536 U.S. 564 (2002), which were decided while Powell’s case was on

direct appeal, required that Powell’s third trial (a capital resentencing

proceeding following affirmance of the conviction) be a complete new trial on all

the elements of the capital offense (including guilt-innocence elements) rather

than just a retrial on the elements formerly treated as sentencing factors.

Claim 2. The prosecution’s failure timely to disclose documents in which

agents of the prosecution asserted that Meinert fired shots at Officer Ablanedo

and the other officers and threw a hand grenade violated Powell’s right to due

process under Brady v. Maryland, 387 U.S. 83 (1963).

Claim 3. Powell’s Fifth and Fourteenth Amendment rights under Estelle

v. Smith, 451 U.S. 454 (1981), were violated when an emergency room doctor,
No. 06-70008

3 Miranda v. Arizona, 384 U.S. 436 (1966).

12

who did not provide Miranda3 warnings to Powell when he examined Powell

following his arrest, testified for the prosecution about Powell’s answers to

questions the doctor asked during the examination.

We gave the parties an opportunity to file supplemental briefs on the

merits, and heard oral argument. We now turn to consider whether Powell is

entitled to federal habeas relief on his claims.

B.

Powell filed his federal habeas petition after the effective date of the AntiTerrorism and Effective Death Penalty Act (AEDPA). Under AEDPA, with

respect to claims adjudicated on the merits in state court, Powell is not entitled

to federal habeas relief unless the state court’s adjudication of his claims

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

establishedFederal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A decision is “contrary to” clearly established federal law

“if the state court arrives at a conclusion opposite to that reached by th[e

Supreme] Court on a question of law or if the state court decides a case

differently than th[e Supreme] Court has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An “unreasonable

application” of clearly established federal law occurs “if the state courtidentifies

the correct governing legal principle from th[e Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

413. The state court’s factual determinations “shall be presumed to be correct,”
No. 06-70008

13

and the petitioner “shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III.

A.

Powell’s first claim is that Apprendi v. New Jersey, 530 U.S. 466 (2000),

and Ring v. Arizona, 536 U.S. 584 (2002), which were decided while his case was

on direct appeal, required that his third trial (a capital resentencing proceeding

following affirmance of his conviction for capital murder) be a complete new trial

on all of the elements of the capital offense (including guilt-innocence elements)

rather than just a retrial on the punishment elements. Powell’s argument is

complicated and confusing. As we understand it, he asserts:

(1) deliberateness is an element of the Texas offense of “death-eligible”

capital murder;

(2) a special issue on deliberateness was not submitted to the jury at his

second trial; and

(3)therefore, his resulting conviction atthe second trial was for the lesserincluded offense of “non-death-eligible” capital murder.

He therefore contends that Apprendi and Ring dictate that the Texas

Court of Criminal Appeals should have vacated both his conviction and his death

sentence and remanded for a new trial on all of the elements of “death-eligible”

capital murder, including both the guilt-innocence elements and the punishment

elements. In his brief, he asserted that to conclude otherwise would violate the

Double Jeopardy Clause because it would sanction the trial of a greater offense

(death-eligible capital murder) following the conviction and affirmance of its

lesser-included offense (non-death-eligible capital murder). In support for that

argument, he relied on Brown v. Ohio, 432 U.S. 161, 169 (1977), in which the

Supreme Court held that “the Fifth Amendment forbids successive prosecution

and cumulative punishment for a greater and lesser included offense.”
No. 06-70008

14

At oral argument, however, Powell’s counsel clarified that Powell is not

making a claim that his constitutional rights under the Double Jeopardy Clause

have been violated. Instead, the only remedy he seeks is a complete new trial

on both the guilt-innocence and punishment elements. Powell’s argument,

reduced to its essence, is simply that bifurcated capital murder trials are not

permitted unless the same jury that finds the defendant guilty also decides the

special issues related to punishment. Apprendi and Ring do not require such a

rule.

At issue in Apprendi was a New Jersey hate crime statute that provided

for an increase in the maximum prison sentence for a crime based on the trial

judge’s finding, by a preponderance of the evidence, that the defendant, in

committing the crime, had acted with a purpose to intimidate the victim based

on particular characteristics of the victim. 530 U.S. at 468-69. The Court held

that “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.

In Ring, the Court considered an Arizona statute which provided that,

“following a jury adjudication of a defendant’s guilt of first-degree murder, the

trial judge, sitting alone, determines the presence or absence of the aggravating

factors required by Arizona law for imposition of the death penalty.” 536 U.S.

at 588. The Court held that the Sixth Amendment guarantees that capital

defendants “are entitled to a jury determination of any fact on which the

legislature conditions an increase in their maximum punishment.” Id. at 589.

The Court concluded that “[b]ecause Arizona’s enumerated aggravating factors

operate as the functional equivalent of an element of a greater offense, the Sixth

Amendment requires that they be found by a jury.” Id. at 609 (internal

quotation marks and citation omitted).
No. 06-70008

15

The Texas court’s decision to remand for a new trial only as to

punishment, and not as to guilt or innocence, was neither contrary to, nor an

unreasonable application of Apprendi or Ring, because all of the elements of

capital murder necessary for the imposition ofthe death penalty were submitted

to a jury and proven beyond a reasonable doubt. As Powell concedes, neither

Apprendi nor any other Supreme Court decision requires the same jury to

determine guilt and punishment. 

Powell can cite no authority to support his argumentthat, in affirming his

conviction for capital murder but vacating the death sentence and remanding for

a new punishment trial, the Texas Court of Criminal Appeals effectively

converted the underlying conviction for capital murder into a lesser-included

offense. There is no support for such an argument because the reversal of the

death sentence was not on any basis that bars retrial of the sentencing phase of

the prosecution. Certainly there is no clearly established law decided by the

Supreme Courtto that effect. The state court’s decision ordering a new trial only

as to punishment issues is therefore neither contrary to, nor an unreasonable

application of, clearly established federal law. We now turn to consider Powell’s

Brady claim.

B.

(1)

Powell contends that his right to due process under Brady v. Maryland

was violated by the prosecution’s failure timely to disclose the Meinert parole

documents in which agents of the prosecution asserted that Meinert fired shots

at Officer Ablanedo and the other officers and threw a hand grenade. He

contends that the measure of his culpability, and the calculus of his future

danger, would have changed significantly in his favor if the jury believed that

Meinert was involved in the shooting to the extent described in Assistant

District Attorney Lehmberg’s “Statement of Fact Form” or that Meinert threw
No. 06-70008

16

the hand grenade at Officer Villegas. He contends further that, even if the jury

did not believe that Meinert was involved in the shooting or the throwing of the

grenade, he could have used the documents to discredit the prosecution, by

arguing thatifthe police and prosecutors would lie to keep Meinert from getting

parole, they would also lie to keep the jury from answering “no” to the future

dangerousness special issue.

Under Brady, the prosecution has a duty to disclose to the defense

exculpatory evidence that is material either to guilt or to punishment. Brady,

373 U.S. at 87. The duty to disclose extends to evidence that may be used for

impeachment. United States v. Bagley, 473 U.S. 667, 676 (1985). “[T]he

individual prosecutor has a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in the case, including the police.” Kyles

v. Whitley, 514 U.S. 419, 437 (1995); see also Strickler v. Greene, 527 U.S. 263,

280-81 (1999). Accordingly, to establish a Brady violation, a defendant must

make the following showing: “The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82.

“[E]vidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Bagley, 473 U.S. at 682. A determination of the

materiality of withheld evidence must be made “collectively, not item-by-item.”

Kyles, 514 U.S. at 437 . “The question is not whether the defendant would more

likely than not have received a different verdict with the evidence, but whether

in its absence he received a fair trial, understood as a trial resulting in a verdict

worthy of confidence.” Id. at 434. 
No. 06-70008

4 Other courts have reached a similar conclusion regarding mid-trial disclosures of

Brady material. See United States v. Tyndall, 521 F.3d 877, 882 (8th Cir. 2008) (“A mid-trial

disclosure violates Brady only if it comes too late for the defense to make use of it.”); United

States v. Warren, 454 F.3d 752, 760 (7th Cir. 2006) (“Late disclosure does not itself constitute

a Brady violation.”); United States v. Knight, 342 F.3d 697, 708-09 (7th Cir. 2003) (Brady not

violated where defendant made effective use of tardily-disclosed evidence); McMeans v.

Brigano, 228 F.3d 674, 684 (6th Cir. 2000) (“Generally, exculpatory evidence must be produced

by the prosecution “in time for effective use at trial.”); United States v. Woodley, 9 F.3d 774,

777 (9th Cir. 1993) (disclosure of Brady material “must be made when it is still of substantial

value to the accused”; defendant not prejudiced by untimely disclosure where evidence was

used effectively at trial); United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir. 1993) (“Delay

[in disclosure] only violates Brady when the delay itself causes prejudice.”); United States v.

Warhop, 732 F.2d 775, 777 (10th Cir. 1984) (due process satisfied if Brady material is disclosed

before it is too late for the defendant to make use of the benefits of it); United States v. Higgs,

713 F.3d 39, 44 (3d Cir. 1983) (“No denial of due process occurs if Brady material is disclosed

to appellees in time for its effective use at trial.”); United States v. Kubiak, 704 F.2d 1545, 1550

(11th Cir. 1983) (Brady not violated by untimely disclosure of evidence which was utilized at

trial, because the focus of due process violation is “not upon the fact of nondisclosure, but upon

the impact of nondisclosure on the jury’s verdict”).

17

The Supreme Court has never expressly held that evidence that is turned

over to the defense during trial has been “suppressed” within the meaning of

Brady. Our court has held that such evidence is not considered to have been

suppressed. See United States v. Williams, 132 F.3d 1055, 1060 (5th Cir. 1998);

see also Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994); United States v.

McKinney, 758 F.2d 1036, 1049-50 (5th Cir. 1985). In this Circuit, when the

claim is untimely disclosure of Brady material, we have looked “to whether [the

defendant] was prejudiced by the tardy disclosure.” Williams, 132 F.3d at 1060.

We have held that a defendant is not prejudiced if the evidence is received in

time for its effective use at trial. United States v. Walters, 351 F.3d 159, 169 (5th

Cir. 2003) (collecting cases) .4 These principles that we have applied to claims

of untimely disclosure of Brady material -- and which the Texas Court of

Criminal Appeals applied in Powell’s case -- are consistent with the purpose of

the Brady disclosure requirement, which is to ensure that the defendant receives

a fair trial. See Kyles, 514 U.S. at 434.
No. 06-70008

18

With these legal principles in mind, we turn our attention to the state

court’s decision. On direct appeal, the Texas Court of Criminal Appeals rejected

Powell’s Brady claim for two reasons: (1) the alleged Brady evidence was not

material; and (2) the evidence was disclosed to Powell in time for him to have

made effective use of it.

(2)

The Texas court held that, even assuming that the documents were

admissible, the “official version” and “Statement of Fact Form,” which implied

that Meinert participated in the shooting, were not material because those

documents were prepared by persons who had no firsthand knowledge of the

events. The court noted that Assistant District Attorney Rosemary Lehmberg,

who signed the Statement of Fact Form, submitted an affidavit at the hearing

on Powell’s motion for a new trial in which she stated that she was familiar with

the facts of Meinert’s and Powell’s cases; that “[t]here is no evidence of which I

am aware that shows that Sheila Meinert fired a weapon”; that she was not

present when the shootings took place and had “no personal knowledge of what

occurred”; and that the “use of the term ‘they’ in reference to ‘they shot him

again’ and ‘they began firing at him’ is imprecise.” The Court of Criminal

Appeals concluded that there was not a reasonable probability that the outcome

of the proceeding would have been different, had this evidence been disclosed to

the defense.

With respectto the petitions stating that Meinert threw the hand grenade,

the court stated that they would have had little, if any weight, against Officer

Boardman’s testimony that he saw the male individual on the passenger side of

the Mustang make a “throwing motion.” The court observed that, with the

exception of Boardman, none of the persons who signed the petitions had any

personal knowledge of the events or were present at the scene. The court thus

concluded thatthe statements and signatures of prosecutors, police officers, and
No. 06-70008

19

other law enforcement personnel in the context of a parole hearing, about the

facts of the offense, when they had not been personally present at the scene,

would not carry much probative value.

The court stated that although Powell could have impeached Officer

Boardman’s testimony with Boardman’s signature on the petition attached to

the letter stating that Meinert threw the grenade, there was not a reasonable

probability that Powell would have been given a life sentence if the letter had

been more timely disclosed. The court noted that Boardman’s trial testimony

was only that he saw the male figure make a throwing motion. The court

pointed out that Powell did not dispute that the grenade’s safety pin was found

right outside the passenger door ofthe Mustang, where Powell, not Meinert, had

been seated and had been firing at the police. The court stated that, in the light

of the trial testimony, the physical evidence, and the testimony that Powell

routinely carried an assault rifle and hand grenades around with him, it could

not conclude that the impeachment value of the parole protest letters was

sufficiently strong to demonstrate a reasonable probability that Powell would

have been given a life sentence rather than death.

The court also held that the evidence was disclosed early enough to have

been of use to Powell. The court noted that the evidence was disclosed to Powell

during the State’s case in chief, before Meinert testified, and that, assuming it

was admissible, Powell could have presented the evidence during the defense

case, and could have recalled Officer Boardman for impeachment purposes. The

court rejected Powell’s claim that he could not have effectively used the evidence

because he had previously stated in his opening statement that Meinert was

blameless. The court reasoned that defense counsel’s opening statement did not

bar him from presenting contrary evidence later, but simply would have required

him to make a choice about his strategy and how he would explain it to the jury.

(3)
No. 06-70008

20

Powell contends that all of the evidence in Meinert’s parole file was

admissible as admissions of a party opponent. He contends further that the

evidence was material, because it called into question the primary evidence that

the State relied on as proof of his future dangerousness -- that Powell was the

only shooter and that he threw the hand grenade. He contends that there is a

reasonable probability that the outcome would have been different if he had been

able to show that he was not solely responsible for the events on the night of the

murder, and that the prosecution had dealt leniently with Meinert (she was

convicted of attempted capital murder of Officer Villegas in connection with the

shoot-out, was sentenced to 15 years, and served four years before being

paroled). Powell asserts that Lehmberg’s attempt to minimize the accuracy of

the “Statement of Fact Form” based on lack of personal knowledge would not

have been credible to the jury, because the jury would have seen the prosecution

as taking contradictory positions -- casting the document as inaccurate at

Powell’s trial when it was in their interest to place all the blame on Powell, but

having presented it as an accurate version before the Parole Board, when their

interest was keeping Meinert in prison. Powell argues that the suppressed

evidence would have raised questions about the credibility of the entire

prosecution team and its theory of the case, because Smith, the lead prosecutor,

maintained at trial that Powell threw the grenade, even though he was among

the signatories to a letter to the parole board stating that Meinert threw it.

Smith also maintained that Meinert was not involved in the shooting at either

scene, even though the Statement of Fact Form signed by an attorney in his

office stated that both Powell and Meinert fired shots. Powell argues that, had

he been able to present evidence that agents of the State had taken the position

that Meinert participated in the shooting and threw the hand grenade, the jury

might have viewed his role as the impulsive behavior of a drug-impaired, strungout, desperate person rather than a cold, calculating, unrepentant person who
No. 06-70008

21

was willing to risk the lives of not only the police officers in the apartment

complex parking lot, but also those who were sleeping in the nearby apartments.

Powell maintains that there was considerable circumstantial evidence that

Meinert participated in the shooting at both scenes and that she threw the hand

grenade: Before he died, Officer Ablanedo told Edward Segura that a girl shot

him, and other witnesses also heard Officer Ablanedo say, over and over, “that

damned girl.” Meinert testified that Powell gave her the grenade and told her

to remove the tape from it, and she gave conflicting testimony as to whether she

took the tape off, although she did say that she threw it back to Powell. When

the grenade was found by the police, there was still some tape wrapped around

the spoon, and the backup safety clip had not been removed. Powell argues that

he was familiar with hand grenades and would have known that the grenade

could not have exploded in that condition, and this supports an inference that

Meinert, who knew nothing about grenades, must have been the one who threw

it. Powell asserts that Meinert had the same motive to fire at the officers in the

apartment complex parking lot and to throw the grenade, because she was just

as likely as Powell to be shot by the police or arrested.

Powell contends further that the state court unreasonably decided that the

materials were disclosed in time for him to have used them effectively. He

asserts that once defense counsel had admitted in his opening statement that

Powell committed the entire crime by himself, there was no credible way that

defense counsel could have taken back that statement admitting Powell’s guilt

and exonerating Meinert. Powell argues that he was prejudiced by the late

disclosure because it caused the defense to admit guilt, exonerate Meinert, and

put all of their effort into showing that Powell was no longer a danger to anyone.

He notes that, after eleven hours of deliberation, the jury was deadlocked 9-3 on

the issue of future dangerousness.
No. 06-70008

22

For all of these reasons, Powell argues that he was prejudiced by the late

disclosure of the Meinert parole documents.

(4)

The State argues that the documents in Meinert’s parole file are not

material to the punishment verdict because they are inadmissible hearsay.

Even if they had been admitted, the State maintains that the prosecution would

have called the persons who signed the documents, and they would have testified

that they had no personal knowledge of whether Meinert participated in the

shooting or whether she threw the hand grenade. The State points out that the

only witness to the murder, Bobby Bullard, testified that he saw Powell shoot

Officer Ablanedo from inside the car, and that no one testified that Meinertfired

a weapon during the shootout in the apartment complex parking lot. 

The State contends that any attempt to impeach Officer Boardman (the

only witness who testified that he saw the male on the passenger side of the

Mustang make a throwing motion) with the protest letter that he signed would

have had little impact on the jury, because other evidence led to the conclusion

that Powell was the only shooter and threw the grenade: Bobby Bullard

identified Powell as the person who shot Officer Ablanedo; Velma Bullard

identified Powell as the person in the passenger seat of the Mustang; Officer

Villegas identified Powell as the person shooting at him during the shoot-out;

Officer Hearon testified that the male was on the passenger side of the Mustang

shooting atthe officers with an assault rifle; Officer Foree testified that Meinert

ran from the driver’s side when she surrendered; Officer Williams found the

grenade pin on the passenger side of the car; and Meinert testified that Powell

handed her the grenade and told her to remove the tape, but she was appalled

and gave it back to him.

The State further contends that, even if the parole file documents had

persuaded the jury that Meinert threw the grenade and fired shots during the
No. 06-70008

5 At the 1999 trial, prosecutor Robert Smith stated that the contents of the parole file

were disclosed to the defense more than a year before trial. Powell’s counsel who represented

him at the 1999 trial submitted affidavits in which they stated that they themselves saw the

contents of Meinert’s parole file for the first time during the 1999 trial. At the 1991 trial,

during defense counsel’s cross-examination of Meinert, counsel asked her if she knew that the

judge had written a letter recommending parole. Defense counsel also referred in closing

argument to the judge’s letters to the Parole Board on behalf of Meinert. This indicates that

in 1991 the defense was aware of at least some of the contents of Meinert’s parole file, which

included two letters from the judge in support of her parole.

23

shoot-out, there is no reasonable probability that this would have affected the

jury’s verdict on future dangerousness because, as the district court noted:

Powell does not dispute that he killed Ablanedo by shooting him numerous times

with an automatic AK-47 and that he attempted to shoot numerous other police

officers with the same weapon; he did not challenge the evidence that piror to

the murder he routinely carried the AK-47 and a hand grenade with him

wherever he went; and he did not challenge the evidence that police discovered

in his residence other weapons, including another hand grenade, books on

weaponry and guerilla warfare,the components of a methamphetamine lab, and

methamphetamine. The State contends that, although Powell presented

evidence that he had been a model prisoner for 20 years, the jury was well aware

of the fact that he had been locked up in prison under strict guard, without

access to weapons and drugs.

The State contends further that, in any event, the evidence in Meinert’s

parole file was disclosed to Powell in a timely manner. Because the fact that the

State actively opposed Meinert’s parole was addressed by Powell’s counsel

during the second trial, the State maintains that Powell either knew or should

have known ofthe essential facts that clearly would have permitted him to argue

that Meinert was an active participantin the crime.5 The State contends further

that the Texas Court of Criminal Appeals reasonably concluded that the

disclosure of the documents at trial allowed Powell to make use of them without

losing credibility. The State maintains that Powell could have capitalized on the
No. 06-70008

24

timing of the disclosure and explained his change of strategy by blaming the

State. The State also notes that the record reflects that Powell’s counsel were

prepared to change course in mid-trial if their expert ballistics report had come

back and indicated that Meinert may have shot at Ablanedo.

(5)

Under AEDPA, it is not our task to decide de novo whether Powell’s rights

under Brady were violated. Instead, our review is limited to determining

whether the state court’s decision that the documents in Meinert’s parole file

were not material and were disclosed in time to be of effective use to Powell is

contrary to, or involved an unreasonable application of clearly established

federal law, as determined by the Supreme Court. Dickson v. Quarterman, 462

F.3d 470, 477-78 (5th Cir. 2006). We conclude that it is neither. 

Assuming that all of the documents in Meinert’s parole file were

admissible and had been used by the defense at trial, the State could have called

the witnesses who signed the documents and they would have testified thatthey

had no personal knowledge of whether Meinert fired any shots or threw the

grenade. The only witness to the shooting of Officer Ablanedo testified that

Powell fired all of the several shots. There was no evidence that Meinert fired

a weapon at the scene of the murder or at the apartment complex parking lot.

Even if we assume thatthe defense could have impeached Officer Boardman,the

only witness who testified that he saw Powell make a throwing motion, and

further assume that, as a result, the jury believed that Meinert threw the

grenade, other probative evidence of Powell’s future dangerousness prevents our

concluding thatthe state court unreasonably applied Brady when it determined

that the evidence was immaterial. In the light of the evidence that Powell

murdered Officer Ablanedo with a fully automatic AK-47, and then used that

same weapon to fire at the other police officers in the apartment complex

parking lot; that Powell purchased the hand grenade thrown in the parking lot,
No. 06-70008

25

as well as the one found in his apartment; that Powell carried guns and a hand

grenade around with him in his car wherever he went; and that Powell handed

the grenade to Meinert and told her to remove the tape from it, the state court

could reasonably conclude that this evidence rendered the impeachment

evidence immaterial because confidence in the outcome was not undermined.

Furthermore, the circumstantial evidence that Powell threw the grenade was

strong: the safety pin was found outside the passenger door of the Mustang,

where Powell was seated.

Powell’s trial strategy was to persuade the jury that he had become nonviolent in the years since the murder and shoot-out and thus there was not a

reasonable probability that he would be violent in the future. Because he chose

not to contest that his activities prior to his arrest were violent, it is unlikely

that it would have made any consequential difference to the jury whether he

threw the hand grenade himself, or handed itto Meinertto throw. Although the

prosecutors referred in closing arguments to Powell having thrown the hand

grenade, that was not the primary factor that the State relied on to convince the

jury that Powell would be dangerous in the future. 

Furthermore, the state court’s decision that the evidence was disclosed in

time for Powell to have used it effectively at trial is not unreasonable. Although

Powell’s counsel may have had to explain why defense counsel’s opening

statement exonerating Meinert and placing all ofthe blame on Powell was being

abandoned,they could have done so by blaming the State for the tardy disclosure

of Meinert’s file. The record reflects that Powell’s counsel anticipated that they

might need to change the defense theory, notwithstanding counsel’s opening

statement exonerating Meinert. In a bench conference about the defense

expert’s tests on bullet fragments removed from Officer Ablanedo’s body during

the second autopsy, Powell’s counsel stated: “We made the election on our

opening statement, but as a matter of law the court knows that we’re not bound
No. 06-70008

26

by our opening statement. If this comes back a hit, we have the right to present

whatever evidence that we have.” Thus, counsel apparently were prepared to

abandon the opening statement and change theories mid-trial if their expert’s

tests had produced any evidence to support their “two-shooter” theory. Powell’s

counsel received Meinert’s parole file on March 1, 1999, the day before Meinert

testified for the State. The following day, after the trial court denied Powell’s

motion for a three-day adjournment to investigate, and his motion for a mistrial

because of the untimely disclosure, Powell’s counsel stated on the record that

they had received information from their ballistics expert and that the record

could note that he, Powell’s counsel, was “smiling today,” thus indicating, that

even after the Meinert parole file had been disclosed to defense counsel, counsel

still had not abandoned presenting a “two-shooter” defense. Under these

circumstances, we cannot conclude that the state court unreasonably decided

that Powell was not prejudiced by the late disclosure of the materials in

Meinert’s parole file.

Because the state court’s decision is neither contrary to, nor an

unreasonable application of, any clearly established federal law, as determined

by the Supreme Court, the district court did not err by denying habeas relief on

Powell’s Brady claim. We will now turn to Powell’s final claim.

C.

Powell’s final claim is that his Fifth Amendment rights were violated when

an emergency room doctor, who did not provide Miranda warnings to Powell

when he examinedPowellfollowing his arrest, testified for the prosecution about

Powell’s answers to questions the doctor asked during the examination.

About twelve hours after he was arrested, police officers took Powell to a

hospital emergency room to be examined. Dr. Wesley Wallace conducted the

examination. Two police officers were present during the examination. Dr.
No. 06-70008

27

Wallace was called as a witness for the prosecution. Powell’s counsel objected

as follows:

This witness testified at the last trial, and there’s a

Jackson v. Denno [, 378 U.S. 368 (1964)] issue if they’re

going to question him about any statements that Mr.

Powell made or any opinions that he reached based on

statements that Mr. Powell made. He’s a psychiatrist

who examined Mr. Powell.

The prosecutor and Powell’s other lawyer immediately pointed out that Dr.

Wallace is not a psychiatrist. The prosecutor tendered to the trial court a

transcript of Dr. Wallace’s testimony from Powell’s first trial, where Powell’s

counsel called Dr. Wallace as a defense witness and was questioned about the

statements Powell had made during the examination. The prosecutor argued

that any objection had, therefore, been waived. Powell’s counsel responded that

Dr. Wallace had testified as a defense witness at the guilt phase of the first trial,

where future dangerousness was not at issue, and that this did not constitute a

waiver of any of Powell’s rights at the punishment phase. Counsel stated that,

“by opening the door at guilt, you don’t open it at punishment under Estelle v.

Smith.” The trial court overruled the objection and denied the requested

hearing.

Dr. Wallace testified that he obtained a medical history by talking with

Powell and that he conducted a physical and mental examination. According to

Dr. Wallace, Powell did not appear to be under the influence of drugs. He

testified that he asked Powell if he had recently used drugs, and Powell

indicated that he had not. He testified further that Powell appeared to

understand questions and responded appropriately to them, and that he was

oriented to place and person, although he seemed unusually nervous.

During deliberations, the jury sent a note to the judge stating: “We want

to know if the physician asked him if he had been using drugs and what Mr.
No. 06-70008

28

Powell’s response was.” The judge had the court reporter read the requested

testimony to the jury.

Powell argues thatthe questioning and observation of him by Dr. Wallace,

without warning him of his Miranda rights, violated his Fifth and Fourteenth

Amendment rights. He relies for support on Estelle v. Smith, 451 U.S. 454

(1981). In Estelle, a psychiatrist who had conducted a court-ordered pretrial

psychiatric competency examination of the defendant, without providing the

warnings required by Miranda,testified atthe sentencing phase oftrialthatthe

defendant would be a future danger to society. The Supreme Court held that

this testimony violated the defendant’s Fifth Amendment privilege against selfincrimination. Id. at 466. Powell asserts that he reasonably could have believed

that what he said might have been used against him, because he was being

questioned about illegal drug usage in the presence of police officers. He could

also have believed that the purpose was to gain incriminating information since

there was no reason for him to be taken to the emergency room inasmuch as he

was not ill or injured. He argues that he was prejudiced by Wallace’s testimony

because it tended to rebut any inference the jury might have drawn that his

longstanding drug abuse was a factor in the crime, as opposed to an inherent

propensity toward violence. He also notes that the prosecutors, in closing

arguments, referred to Dr. Wallace’s testimony in arguing thatPowell was in full

control, and not under the influence of drugs when he shot Officer Ablanedo and

threw the hand grenade.

On direct appeal, Powell argued that the trial court violated his Fifth

Amendment right against self-incrimination by overruling his objection to Dr.

Wallace’s testimony about statements Powell made during the examination. In

rejecting this claim, the Court of Criminal Appeals stated:

To the extent that an issue was preserved concerning

the content of Wallace’s testimony, appellant’s trial

objection seems to have been directed at “psychiatric
No. 06-70008

29

information” testified to by Wallace. But Wallace, an

emergency room physician, testified to appellant’s

physical and mental alertness, not to any psychiatric

condition. Thus, appellant’s trial objection did not

preserve error regarding Wallace’s testimony as to

appellant’s mental alertness.

The district court noted that, although Powell’s counsel initially referred

to Dr. Wallace as a psychiatrist when objecting, he was immediately corrected

by the prosecutor and co-defense counsel. The district court concluded that it is

at least arguable that Powell’s objection, although not a model of clarity, was

adequate to preserve a Fifth Amendment claim. However, the district court

further held that Powell was not entitled to relief on the merits. It reasoned that

because Dr. Wallace had not been ordered by a court to examine Powell and had

not been asked by the police to gain information from Powell, Dr. Wallace had

acted solely in his private capacity as an emergency room physician, and he

elicited information from Powell that was relevant to the ostensible purpose of

his examination.The court concluded that Estelle v. Smith did not apply because

the doctor was not ordered by a court to conduct the examination, did not

conduct a psychiatric examination of Powell, and did not give any testimony

regarding Powell’s future dangerousness. The district court therefore concluded

that the Texas court’s decision was not contrary to, or an unreasonable

application of, clearly established law.

As the district court noted, the state court held that Powell failed to

preserve a Fifth Amendment claim because his objection was directed at

“psychiatric”information. The prosecutor and Powell’s other attorney, however,

immediately pointed out that Dr. Wallace was not a psychiatrist, and Powell’s

counsel went on to cite Estelle v. Smith. We agree with the district court that

Powell’s objection, although not pellucid, was probably adequate to preserve a

Fifth Amendment objection. We therefore assume, without deciding, that

Powell’s claim is not procedurally barred. As a result of its understanding of
No. 06-70008

30

Powell’s less-than-clear objection,the state court did not adjudicate the claim on

the merits. When a claim has been fairly presented to the state court, but the

state court does not adjudicate the claim on the merits, and the claim is not

procedurally defaulted, the deferential AEDPA standards of review do not apply.

See Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006); Henderson v.

Cockrell, 333 F.3d 592, 598 (5th Cir. 2003) . We therefore review the district

court’s decision on the merits de novo. See Graves v. Dretke, 442 F.3d 334, 339

(5th Cir. 2006); see also Henderson, 333 F.3d at 600-01 (holding that AEDPA’s

standards of review did not apply to claim that was properly presented to state

court but was not adjudicated on the merits by state court); Jones v. Jones, 163

F.3d 285, 299-300 (5th Cir. 1998) (reviewing de novo petitioner’s ineffective

assistance of counsel claims that were raised in state court, but not adjudicated

on the merits).

The district court did not err by concluding that Powell’s rights under

Estelle v. Smith were not violated. Dr. Wallace was not acting as an agent of the

State when he conducted the examination of Powell at the behest of, and in the

presence of, the police officers who brought Powell to the emergency room. Dr.

Wallace was not court-appointed, he was not a psychiatrist, he did not conduct

a psychiatric examination, and he did not express an opinion at trial regarding

Powell’s psychiatric condition. 

Even assuming that Dr. Wallace’s testimony violated Powell’s Fifth

Amendment privilege against self-incrimination because Powell was not advised

of his rights prior to Dr. Wallace’s examination, any error in admitting Dr.

Wallace’s testimony was harmless, because it did not have a substantial and

injurious influence or effect on the verdict. See Penry v. Johnson, 532 U.S. 782,

795 (2001) (applying harmless error standard in Brecht v. Abrahamson, 507 U.S.

619 (1993), to petitioner’s claim that admission into evidence of portion of

psychiatric report violated his Fifth Amendment rights under Estelle). To be
No. 06-70008

31

sure, there was no evidence that Powell was under the influence of drugs when

he shot Officer Ablanedo and threw the grenade. Moreover, the record reflects

that twelve hours had elapsed between Powell’s arrest and Dr. Wallace’s

examination, and that Powell had been hiding for several hours after he ran

from the apartment complex parking lot. Thus Dr. Wallace’s testimony that

Powell had denied recent drug use, itself, did not necessarily or directly support

the prosecutor’s argument that Powell was in full control and not under the

influence of drugs during the episodes of violence. Furthermore, Dr. Wallace’s

testimony did not detract from or seriously undermine the defense theory that

long-time drug addiction was the factor in the changed character of the

defendant from his earlier days and was largely to blame for the crime as

opposed to an inherent propensity toward violence. In any event, Dr. Wallace’s

testimony regarding Powell’s statements denying recent drug use had already

been indicated by two witnesses. Gary Nelson, the school security guard who

found Powell hiding under a bush after the shoot-out, testified, without

objection, that Powell was coherent and did not have trouble understanding

what was said to him. Also, Justin Shaffer, a police officer who took Powell into

custody,testified that Powell was coherent, did not appear to be intoxicated, and

seemed to fully understand the Miranda warnings. And of course there is the

parenthetical fact that, in another context Powell had been given Miranda

warnings. For these reasons, Powell is not entitled to relief on his Estelle claim.

IV.

The judgment of the district court denying Powell’s petition for federal

habeas relief is

AFFIRMED.