REVISED - March 9, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 00-20721

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Richard William Kutzner,

Petitioner-Appellant,

v.

Gary L. Johnson, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

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Appeal from the United States District Court

For the Southern District of Texas

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February 16, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Richard Kutzner has filed a motion for a certificate of

appealability (COA) in this 28 U.S.C. § 2254 capital habeas

proceeding alleging two constitutional violations. For the reasons

that follow, we deny his motion.

I.

Kutzner was convicted of capital murder and sentenced to death

in Texas state court for the murder of Kathryn Harrison. The facts

relating to Kutzner’s offense and his subsequent conviction are as

follows.

Harrison owned a real estate brokerage firm in Montgomery
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County, Texas. On January 22, 1996, Charles Divin, a broker at

Harrison’s firm, discovered Harrison’s body in her office after

returning from lunch. Harrison’s hands had been bound with red

plastic coated electrical wiring and her ankles bound with a

plastic cable tie. She had been strangled by another plastic cable

tie that was secured tightly around her neck. Harrison’s purse had

been emptied and turned upside down and a computer keyboard and a

video cassette recorder were missing from her office.

Kutzner soon became a suspect in the investigation of

Harrison’s murder. Several plastic cable ties, a pair of tin

snips, and red plastic coated electrical wiring were found in a

search of Kutzner’s truck. More plastic cable ties and red plastic

coated electrical wiring were found in Kutzner’s home. The wire

found in Kutzner’s truck, the wire found in his home, and the wire

which had bound Harrison’s wrists all bore the same identification

number. The identification numbers showed that all the wire was of

the same type and had all been manufactured by Rome Cable of Rome,

New York.

Kutzner was arrested and subsequently indicted in the 395th

Judicial District Court of Montgomery County, Texas for the capital

offense of murdering Kathryn Harrison in the course of committing

the offense of robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon

1995). Kutzner plead not guilty. In addition to the items noted

above which had been found in Kutzner’s possession, there was

substantial other evidence to establish Kutzner’s guilt.
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Roy Landry, an associate of Kutzner’s, testified that Kutzner

had dropped off a video cassette recorder at Landry’s home during

the last week of January of 1996. The police recovered the video

cassette recorder from Landry’s home and identified it as the one

missing from Harrison’s office. Landry also testified that Kutzner

had given him a computer keyboard at the same time, but that

Kutzner had retrieved it about a week later with the intention of

giving it to a woman who worked for Mike Covington. Covington

testified that Kutzner brought him a computer keyboard during the

latter part of January or the early part of February but that he

then retrieved it about a week later. Lela Porch, who knew Kutzner

through Covington, testified that Kutzner brought her a computer

keyboard in early February of 1996. The police recovered the

keyboard from Porch’s home and identified it as the one missing

from Harrison’s office.

Landry also testified that Kutzner told him that he should rob

an older woman who worked alone in an office. Landry asked why

Kutzner did not do it himself, and Kutzner replied that the office

was too close to his home. Other testimony established that

Kutzner lived about a mile and a half from Harrison’s office.

Tommy McDonald, an employee of a local electrical products company,

testified that Rome Cable’s products were not common in the

Montgomery County area. Dale Aikens, for whom Kutzner had worked

for a time, testified that Kutzner had commented to him, on three

separate occasions, that there were no serial numbers on plastic
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cable ties and that they would be good to use if one ever wanted to

kill somebody. Finally, Michael Ennis, a forensic scientist with

the Federal Bureau of Investigation, testified that the cable ties

used to bind Harrison’s ankles and to strangle her had been cut

with the tin snips recovered from Kutzner’s truck.

The jury convicted Kutzner of murder. During the punishment

phase of the trial, the state presented evidence that Kutzner had

served several years in prison in California for armed robbery in

the 1960s, that he had been convicted of theft in Texas in 1984,

and that he had been convicted of aggravated robbery four times in

Texas in 1985. Finally, the state presented evidence that Kutzner

had murdered Rita Sharon van Huss in Harris County under very

similar circumstances just two weeks prior to his murdering

Harrison. The jury returned affirmative answers to the statutory

special issues submitted and the trial judge subsequently sentenced

Kutzner to death.

The Texas Court of Criminal Appeals affirmed Kutzner’s

conviction and sentence on direct appeal. Kutzner v. State, 994

S.W.2d 180 (Tex. Crim. App. 1999). Kutzner did not seek a writ of

certiorari from the United States Supreme Court. Kutzner applied

for a writ of habeas corpus in state court on November 5, 1998.

The state habeas court made extensive findings of fact and law and

denied Kutzner’s application. Ex Parte Kutzner, No. 97-08-01086-

CR-(1) (395th Dist. Ct., Montgomery County, Tex. Mar. 4, 1999).

The Texas Court of Criminal Appeals adopted the findings of the
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trial court and also denied Kutzner’s application. Kutzner then

applied for a writ of habeas corpus from the United States District

Court for the Southern District of Texas on January 13, 2000. The

district court denied the application and also denied Kutzner a

COA. Kutzner v. Johnson, No. H-00-127 (S.D. Tex. July 19, 2000).

Kutzner then filed the instant motion for a COA with this court.

II.

Because Kutzner filed his application for a writ of habeas

corpus from the district court on January 13, 2000, his application

is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138

L.Ed.2d 481 (1997). To obtain a COA, Kutzner must make, “a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). When the district court has denied an

application for a writ of habeas corpus on substantive grounds that

means that Kutzner must show that, “reasonable jurists would find

the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct.

1595, 1604, 146 L.Ed.2d 542 (2000).

In deciding to grant a COA, we view a petitioner’s application

through the deferential scheme created by AEDPA. Barrientes v.

Johnson, 221 F.3d 741, 771 (5th Cir. 2000). 28 U.S.C. § 2254(d)

requires us to defer to a state court’s adjudication of a

petitioner’s claims on the merits unless the state court’s decision

was: (1) “contrary to, or involved an unreasonable application of,
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clearly established Federal law, as determined by the Supreme Court

of the United States,” 28 U.S.C. § 2254(d)(1), or (2) “resulted in

a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding,” 28 U.S.C. § 2254(d)(2). A state court’s decision will

be contrary to clearly established federal law when it reaches a

legal conclusion in direct opposition to a prior decision of the

United States Supreme Court or when it reaches a different

conclusion than the United States Supreme Court on a set of

materially indistinguishable facts. Williams v. Taylor, 529 U.S.

362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state

court’s decision will be based on an unreasonable application of

clearly established federal law when it is objectively

unreasonable. Id. at 1521.

In this case, Kutzner argues that he was denied his right to

the due process of law, as guaranteed by the Fourteenth Amendment,

when the state introduced perjured testimony at his trial. Kutzner

also argues that he was denied his right to the due process of law

when the state engineered an emotional outburst from a witness who

was a close relative of Harrison. The state habeas court

considered and rejected each of these claims; in neither case has

Kutzner met any of the requirements of 28 U.S.C. § 2254(d).

A.

Kutzner argues first that the state knowingly introduced

perjured testimony when it introduced the testimony of Tommy
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McDonald that Rome Cable electrical wiring was not common in the

Montgomery County area. Kutzner bases his contention on an

affidavit by Carl Schmidt, an employee of another local electrical

products company, that at least two wholesalers in Conroe, Texas

stock Rome Cable electrical wiring and that it is also available at

local home improvement stores. Kutzner also relies on a facsimile

communication from Rome Cable that states that the company sells

approximately 41,000 feet of wire in the Houston market monthly.

The state habeas court considered Kutzner’s claim and specifically

found that McDonald did not commit perjury.

For Kutzner to establish that his right to the due process of

law has been violated, he must show (1) the actual falsity of a

witness’s testimony, (2) that the testimony was material, and (3)

that the prosecution knew the witness’s testimony was false.

Giglio v. United States, 405 U.S. 150, 153-4, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972); Fuller v. Johnson, 114 F.3d 491, 496 (5th Cir.

1997); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). At

most, Kutzner has established that McDonald’s opinion about the

availability of Rome Cable electrical wiring conflicts with or is

inconsistent with the affidavit of Schmidt and the communication

from Rome Cable. Conflicting or inconsistent testimony is

insufficient to establish perjury. Koch, 907 F.2d at 531. In any

event, McDonald’s testimony was hardly unequivocal. He stated on

cross-examination that his opinion about the availability of Rome

Cable products in the Montgomery County area was based on his
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employer not stocking those products; he stated that he did not

know if any other firms might stock them. Furthermore, Kutzner has

made no showing that this testimony was material in light of the

overwhelming evidence of his guilt, or that the prosecution team

knew of the testimony’s falsity. In sum, Kutzner has made no

showing that the state habeas court’s resolution of this issue was

not eminently reasonable.

B.

Kutzner argues next that the state engineered an emotional

outburst from Cynthia Ann Harrison, the daughter-in-law of Kathryn

Harrison, during her testimony. Kutzner argues that the prosecutor

shocked Cynthia Ann Harrison by showing her a picture of her

mother-in-law from the crime scene without any prior warning, that

this caused Cynthia Ann Harrison to become hysterically emotional,

and that the jury was accordingly prejudiced against him. The

state habeas court considered Kutzner’s claim and found that

Cynthia Ann Harrison’s reaction had no effect on the jury’s

verdict.

For Kutzner to establish that his right to the due process of

law has been violated he must show that the actions of the

prosecutor so infected the trial with unfairness as to make the

resulting conviction a denial of due process. Darden v.

Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94

S.Ct. 1868, 40 L.Ed.2d 431 (1974)); Guidroz v. Lynaugh, 852 F.2d
1We do not suggest that Kutzner has established that the

prosecutor deliberately engineered this outburst from Cynthia Ann

Harrison. We simply follow the analysis of the state habeas court

on this issue.

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832, 834-5 (5th Cir. 1988). The trial record does show that after

being shown the picture of her mother-in-law, Cynthia Ann Harrison

became extremely upset. However, it also shows that the jury was

removed from the courtroom shortly afterwards and remained outside

the courtroom until Cynthia Ann Harrison regained her composure.

The trial record also shows that the judge instructed the jury not

to be influenced by Cynthia Ann Harrison’s reaction to the

photograph. Furthermore, affidavits from various courtroom

personnel submitted to the state habeas court show that while

Cynthia Ann Harrison did begin to cry, she never became hysterical.

These affidavits also show that the jury was unable to hear

anything after it was removed from the courtroom.1 As with the

first issue raised by Kutzner, the state habeas court’s finding

that these events had no effect on the jury was eminently

reasonable.

III.

Kutzner has not made a substantial showing of the denial of a

constitutional right. Therefore, we DENY his motion for a

certificate of appealability.

MOTION DENIED.