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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

HENRY W. SKINNER, §

§

Petitioner, §

§

v. §

§ 2:99-CV-0045

DOUGLAS DRETKE, DIRECTOR, § ** Capital Litigant **

TEXAS DEPARTMENT OF §

CRIMINAL JUSTICE, §

CORRECTIONAL INSTITUTIONS §

DIVISION, §

§

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

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:

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.

 

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The venue was changed from Gray County to Tarrant County.

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II. 

PARTIES

Petitioner, Henry Skinner, is an inmate in the 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 County, Tex. March 22, 1995).1

 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 § 4A(f) (Vernon’s Supp. 1999).

Petitioner’s second state habeas application was filed on February 27, 2001. On October

 

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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.

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 refile 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

 

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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, 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. 

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matter would accept such a waiver or would not otherwise find the petition to be time barred.2

The district court overruled objections filed by Respondent and adopted the Magistrate Judge’s

recommendation by Order, dated September 27, 2002.

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.

 

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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; 

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

 

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(the AEDPA), 28 U.S.C. § 2254, provide:

(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. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (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

(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.

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495 (5th Cir.

 

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2000), cert. denied, 532 U.S. 949 (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.” Chambers v. Johnson, 218 F.3d

360, 363 (5thCir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (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 (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, 342 F.3d 392, 394 (5th Cir. 2003); Miller v. Johnson, 200 F.3d 274, 281 n. 4 (5th 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

 

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opinion on direct appeal:

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.

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

 

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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.

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.

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

 

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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 dismissed. 

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 Carter v. Estelle, 677 F.2d 427 (5th 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

 

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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.

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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 (5th Cir . 2000), Dilworth v. Johnson, 215 F.3d 497, 501 n.3 (5th 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 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 were previously deemed

untimely.3 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 one-year 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.

Respondent, however, contends a state corrective process is still available to petitioner

 

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because this Court could dismiss the federal petition and respondent has stated he will not assert

the one-year 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

exhausted 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 (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 (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

 

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In Ex parte Soffar, 143 S.W.3d 804, 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.

5

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.

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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 U.S.C. § 2254(b)(1)(B)(I) & (ii).4

Alternatively, even if petitioner has not properly exhausted his state remedies and has not

met the requirements of 28 U.S.C. § 2254(b)(1)(B)(I) & (ii), under § 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 failure to exhaust at the state level.5

IX.

EXAMINATION OF THE ISSUES

A.

False Testimony Claims

Grounds 1, 2, and 3

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

 

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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

 

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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 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)

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

 

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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-

 

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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 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).

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).

 

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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 being

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 (1959); Mooney v.

Holohan, 294 U.S. 103 (1935). This is true whether the nondisclosure was intentional or

through negligence. Giglio v. United States, 405 U.S. 150, 154 (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, 224

F.3d 470, 478 (5th 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).

 

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Under Brady v. Maryland, 373 U.S. 83, 87 (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 (1985). 

Such evidence is material if there is a reasonable probability that, had the evidence been

disclosed, the result of the proceeding would have 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

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. 

 

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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 “false light.” 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 exhusband, 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 . . . .

 

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. . . . 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 exhusband. 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 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 xrays 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

 

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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 petitioner 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). 

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. 

 

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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, 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 F.3d 333, 337 (5th Cir. 2002) (holding

that the fact that false or perjured testimony is challenged by other evidence presented at trial or

 

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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

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. Sutton, 542 F.2d 1239 (4th Cir. 1976), and Ex parte Brandley,

781 S.W.2d 886 (Tex. Crim. App. 1989). In Sutton, the Fourth Circuit reversed a conviction

 

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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,

petitioner also cites to two Second Circuit cases, United States v. Wallach, 935 F.2d 445, 456

(2nd Cir. 1991), and Sanders v. Sullivan, 900 F.2d 601, 607 (2nd 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 F2d at 605. See

Chambers v. Johnson, 218 F.3d 360, 364 (5th Cir. 2000). 

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

 

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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

 

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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 F.3d 886, 893 (5th 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.

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

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

 

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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 (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.

 

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3. Brady claim

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 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

 

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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 pressured 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.

 

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B.

Ineffective Assistance of Counsel–Trial Stage

Ground 4

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 (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

(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 probability sufficient to undermine confidence in the outcome.” Id. at 694. In the context of ineffective assistance of trial counsel, the prejudice

 

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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 (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. 

 

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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 crossexamination 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

 

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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.

 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,

 

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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).

As noted earlier, prosecutor John Mann, on re-direct examination, elicited testimony

from Reed that petitioner made her “swear to God” 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 cross-examination 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

 

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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’ cross-examination 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 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

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

 

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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.

 

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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 “these patterns would indicate this

victim was present in the immediate vicinity of victim Twila Busby at the time of her assault.”

(E.H. I:103). At the evidentiary hearing, defense counsel Mr. Comer and Mr. Fields testified

they had no recollection of 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). 

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

 

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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. Carter v. Johnson, 131

F.3d 452, 466 (5th 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

 

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6

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 Burroughs’ report. As stated above, the Court will consider in analyzing this claim that

counsel failed to provide Lowry with this particular blood spatter report.

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cannot establish prejudice.6 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. 

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 “slow” 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

 

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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

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 committed 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 self-reported 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

 

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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 cross-examination, 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 vodka being gone or Twila Busby

having had gone to a party, or be able to get up from the couch, confront the “real” 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

 

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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

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.

 

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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 that petitioner was, in fact, allergic to codeine, the

State could have countered this argument with evidence to the contrary. 

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

 

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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

 

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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

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 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,

 

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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. I: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

 

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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). 

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 type. Smith v. Cockrell, 311 F.3d 661,

669 (5th Cir. 2002), citing Dowthitt v. Johnson, 230 F.3d 733, 743 (5th 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

 

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ineffective for failing to discover 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.

The only evidence presented by petitioner at the evidentiary hearing that might have

 

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7

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).

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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 evidence 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. Soria v. Johnson, 207 F.3d 232, 251 (5th 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 document reflecting this information.7

 Petitioner argues generally in his posthearing 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, 125 S.Ct. 2456

(2005); Wiggins v. Smith, 539 U.S. 510 (2003). Petitioner has not made such a showing.

Lastly, petitioner has failed to establish prejudice. When petitioner was arrested, DNA

testing revealed that he had the blood of two of the victims 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

 

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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

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

 

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8

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).

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Caler’s DNA, and two were consistent with Elwin’s and inconsistent with petitioner’s or the

other two victims. (R. 28:1109-15).8 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).

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 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

 

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9

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.

10A 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

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additional testing of their own which could include the items he chose to have tested;9 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).

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 the blood flakes on that

hair. (Id at 5-6).10

 

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Pet. Ex. #27).

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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 “inconclusive” 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 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-

 

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11Petitioner has a pending motion requesting he be allowed to conduct additional DNA testing on the issue of

prejudice.

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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

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

prejudiced by this decision.11

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(5th Cir. 2003), cert. denied,

540 U.S. 11865 (2004), quoting United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002); Smith

v. Cockrell, 311 F.3d 661, 668 (5th 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

 

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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 conclusive 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.

The major disadvantage to petitioner’s case, however, would have been that he would

 

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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 “catch 22”position. If they chose to have additional

testing done, and thereby prompted the State to do additional testing which was inculpatory, they

 

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12

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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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.12

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. 

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

 

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mitochondrial DNA testing was widely available in 1995, a time when it was considered

“novel,” 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 recommended 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

 

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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

In Cuyler v. Sullivan, 446 U.S. 335 (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 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.

 

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13 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 will not be addressed by this Court.

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Taylor, 535 U.S. 162, 172-73 (2002).

In Beets v. Scott, 65 F.3d 1258 (5th 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 v. Johnson, 108 F.3d 554, 560 (5th Cir. 1997),

quoting Perillo v. Johnson, 79 F.3d 441, 449 (5th 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, 1988.13 Petitioner contends that, because Comer was the district

 

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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.

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

 

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14In 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).

15Mr. Comer made this statement as support for his argument that petitioner would not be a danger in prison if

sentenced to a life sentence.

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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 to revoke probation. (State’s Ex. #184).14 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 successfully discharged. (R. 33:2363-64).15 

 

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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 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

 

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16Texas 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 cross-examined, 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).

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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 selfdefense. Therefore, to present such evidence petitioner would have had to testify and open

himself to cross-examination by the prosecution. (E.H. III:752-53).16

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

 

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17In 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.

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placed into a detox cell, petitioner kicked Corporal Lance in the groin area. (Resp. Ex. 33). 

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 recommended that it be

denied.17

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.

 

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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.

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 opinion. (R.

29:1421-22).

On direct appeal, the Court of Criminal Appeals held the ruling by the trial court violated

 

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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 cross-examination

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 (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

 

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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.

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 (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

 

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awakened later that night that his vodka bottle was gone. (R. 29:1398-1402). All of these

particulars in petitioner’s statements to the police on January 4th 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 police on January 4th, in which he stated two times that he

 

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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. 

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. 

 

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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 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 “private/privileged” 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,

 

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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

 

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18As support for this claim, petitioner cites to an Arizona Supreme Court opinion which, in essence, has the same

holding. See State v. Warner, 722 P.2d 291 (Ariz. 1986). 

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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).

Petitioner asserts he is entitled to relief on 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 inmate.18 Petitioner alleges Sheriff Stubblefield opened, read, and copied all of

petitioner’s correspondence, including his correspondence with his attorneys, and forwarded

 

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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.

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

 

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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).

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 (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. Johnson, 267 f.3d 376, 379 (5th Cir. 2001), citing

Perry v. Leake, 488 U.S. at 278-79, United Way v. Conway, 632 F.2d 641, 645 (5th Cir. 1980),

overruled by Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir. 1986). 

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

(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

 

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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

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,

 

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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.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

 

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* 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 NOTIFIED 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 the fourteenth (14th) 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).

 

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