No.

OCTOBER TERM, 1999

Petitioner

v.

Respondent

GARY TAYLOR

Counsel for Petitioner

1. WHETHER UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT EVIDENCE OF "ACTUAL INNOCENCE" IS SUFFICIENT TO CALL FOR AN INVESTIGATION AND PROVISION OF RESOURCES TO DISCOVER POSSIBLE GROUNDS FOR FEDERAL RELIEF?
2. WHETHER TRIAL COUNSEL’S REPRESENTATION IS DEFICIENT WHEN COUNSEL FAILS TO INVESTIGATE AND PRESENT ADDITIONAL EVIDENCE WHICH QUESTIONS HIS CLIENT’S GUILT AT TRIAL?

The petitioner in this cause in Odell Barnes, Jr., a Texas inmate currently confined pursuant to a capital murder conviction and sentence of death.

The respondent is Gary Johnson, the Director of the Texas Department of Criminal Justice, Institutional Division, represented by John Cornyn, Texas Attorney General.

Additional parties are:

Cases

Statutes

Miscellaneous

No.

OCTOBER TERM, 1999

Petitioner

v.

Respondent

ODELL BARNES, JR., petitioner, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals was not published but may be found within the appendix hereto. The opinion and order of the district court was not published.

The opinion of the Court of Appeals was entered on June 15, 1999. (App.). No petition for rehearing was filed. This Court’s jurisdiction rests on 28 U.S.C. Sec. 1254 (1).

U.S. Const. amend VI provides:

U.S. Const. amend VIII provides:

U.S. Const. amend XIV (1) provides:

This case involves a petition for federal review of a capital murder conviction and death sentence entered in the State of Texas. Petitioner was convicted of capital murder, in the course of attempting to commit and committing robbery, burglary, and aggravated sexual assault, of Helen Bass, in the 89^th District Court of Wichita County, Texas. After a punishment hearing, the jury returned affirmative answers to the two statutory punishment issues submitted by the court and petitioner was sentenced to death. R.Vol. I, p 67-70. Petitioner's conviction and sentence were affirmed. Barnes v. State, 876 S.W.2d 316 (Tex.Cr.App. 1994). R. Vol. I, p. 72-86. This Court denied certiorari. Barnes v. Texas, 115 S. Ct. 174 (1994).

Petitioner filed a state application for post-conviction writ of habeas. The habeas judge entered "Findings of Fact and Conclusions of Law on Application for Writ of Habeas Corpus" without a hearing. The Texas Court denied relief in a one-page order. R. Vol. I, p. 88.

Petitioner filed a federal petition for writ of habeas corpus raising eleven grounds for relief. R. Vol. I, p. 1-163. The State moved for summary judgment. R. Vol. II, p.205-252. The District Court granted the State’s motion for summary judgment and dismissed the petition for writ of habeas corpus with prejudice on June 15, 1998. R. Vol. IV, p. 656-703, Vol. V, p. 704, Appendix, Tab 9 and 10. An Application for Certificate of Appealability to Authorize Appeal was filed in the United States Court of Appeals for the Fifth Circuit. That Court denied a certificate of appealability on June 15, 1999.

I.

After the Texas Court denied relief in state post-conviction proceedings, a petition for writ of habeas corpus was filed on petitioner’s behalf by the Wichita County Public Defender. Because the Public Defender could not represent petitioner in federal court, the District Court appointed the undersigned counsel to represent petitioner on January 21, 1998. Counsel obtained thousands of records relating to petitioner’s conviction and sentence, totaling more than eight file boxes, and began their investigation. The District Court appointed an investigator to assist counsel and counsel kept the District Court informed of the preliminary results of the investigation–which was substantial. A significant amount of time and resources were expended in obtaining evidence in the possession of the Southwest Institute of Forensic Sciences Laboratory and Gene Screen Laboratory which refused to honor subpoenas issued by the District Court. Petitioner sought the appointment of a fingerprint expert, DNA expert, and an expert in Blood Spatter Analysis and Crime Scene Investigation, providing the District Court with a detailed explanation of the need for such services. Each request was denied without explanation. Petitioner sought to amend his petition for writ of habeas corpus but this was denied. A request to dismiss the petition without prejudice was likewise denied.

Petitioner was required to present proposed findings of fact approximately fifty-four days after appointment and appear at the hearing in this cause some ninety days after appointment. Petitioner objected and moved for a continuance, arguing that the investigation into the federal petition was not complete, was yielding results and that the undersigned attorneys could not be prepared at such an early date. Petitioner’s motions were denied.

Before the Court of Appeals, petitioner contended the District Court abused his discretion: 1) in failing to grant petitioner’s motion for continuance; 2) in denying petitioner the assistance of experts in DNA, fingerprinting, blood spatter analysis and crime scene technology; 3) in denying petitioner’s motion to amend his petition for writ of habeas corpus; and, 4) in failing to dismiss petitioner’s motion to dismiss without prejudice. The Court of Appeals overruled each of these claims finding that such investigation was in pursuit of an "actual innocence" claim which the Court does not recognize under federal law. Barnes v. Johnson, No. 98-CV-007 (5^th Cir, delivered June 15, 1999) pp. 8-10.

An "actual innocence" claim has been addressed by this Court in the context of a successor petition for writ of habeas corpus or an "abuse of writ." Sawyer v. Whitley, 505 U.S. 333, 335, 112 S.Ct. 2514, 2527 (1992). The Court acknowledged that "actual innocence" in the context of the death penalty is a complex concept. The death penalty itself involves factors more expansive than the elements of the offense alone. Id. 505 U.S. at 341, 112 S.Ct. at 2520. The Court ultimately adopted a standard enunciated by the Fifth Circuit Court of Appeals:

Id. 505 U.S. at 346, 112 S.Ct. at 2523 (quoting Sawyer v. Whitley, 945 F.2d 812, 820 (5^th Cir. 1991).

The Court considered whether "actual innocence" itself may provide a basis for federal habeas relief in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1992). The Court stated "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Id., 506 U.S. at 400, 113 S.Ct. at 860 (citing Towsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759 (1963)). See also, Withrow v. Williams, 507 U.S. 680, 715, 113 S.Ct. 1745, 1767 (1993) (Scalia, J., concurring and dissenting) (Federal habeas jurisdiction requires a claim of legal error). This was because the underlying purpose of federal habeas review is to ensure that constitutional rights are guaranteed and not to address errors of fact. Herrera, 506 U.S. at 400, 113 S.Ct. at 860; and, Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265 (1923). Apparently, in the Court’s interpretation of our Constitution, the only evidentiary review available in federal habeas review is a review of the sufficiency of the evidence actually presented at trial under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Herrera, 506 U.S. at 401-402, 113 S.Ct. 861. Indeed, the Court suggested the only forum available to a habeas petitioner who is actually innocent is state executive clemency process. Id., 506 U.S. at 411-412, 416, 113 S.Ct 866, 868-869. This stated, the Court went further to assume, "for the sake of argument," that a truly persuasive demonstration of actual innocence would render an execution unconstitutional. However the Court found that any such threshold would be extraordinarily high and found that Herrera’s evidence failed to meet such a threshold. Id., 506 U.S. at 417, 113 S.Ct. at 869.

In her concurring opinion Justice O’Connor found the execution of a "legally and factually innocent person to be a constitutionally intolerable event." However, Justice O’Connor did not find that case to be the appropriate vehicle for consideration of the issue. Herrera, 506 U.S. at 419-421, 113 S.Ct. at 870-871. She found the evidence "suspect, produced... at the 11^th hour with no reasonable explanation for the nearly decade-long delay." Id., 506 U.S. at 423, 113 S.Ct. at 872.

"Actual Innocence" was again considered in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995). Once again this actual innocence claim arose in the context of a successive federal petition for habeas corpus. Id., 513 U.S. at 301, 115 S.Ct. at 854. The Court initially distinguished its opinion in Schlup from its earlier opinion in Herrera, stating Herrera addressed whether actual innocence itself was appropriate under federal habeas corpus. Schlup presented his claims of actual innocence in association with his claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), or prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194 (1963). Therefore, Schlup’s grounds for federal habeas relief were not novel and could be addressed–if he met the standards for review for a successive habeas petition.. Schlup, 513 U.S. at 313-315, 115 S.Ct. at 860-861. Thus, in Schlup, the Court was again required to consider the concept of "actual innocence" as the "gateway" to federal habeas relief in a successive habeas petition.

The Court noted that claims of actual innocence "pose less of a threat to scarce judicial resources and to principles of finality and comity," and found "the quintessential miscarriage of justice is the execution of a person who is actually innocent." Id., 513 U.S. at 324-325, 115 S.Ct. at 865-866. Therefore, the Court reconsidered its holding in Sawyer, supra, and held the appropriate "gateway" for consideration of a successive habeas petition is a demonstration that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup, 513 U.S. at 327, 115 S.Ct. at 867 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-2650 (1986)). To determine whether a habeas petitioner has satisfied this burden of proof, "[t]he habeas court must make its determination concerning the petitioner’s innocence in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claim to have been wrongly excluded or to have become available only after the trial." Schlup, 513 U.S. at 328, 115 S.Ct. at 867 (quoting 38 U.Chi.L.Rev., at 360; quotations omitted). The burden remains with the petitioner to demonstrate that, more likely than not, no reasonable juror would have convicted him of the offense. Schlup, 513 U.S. at 329, 115 S.Ct. at 868.

The Court of Appeals in the instant case relied upon Herrera in its holding that actual innocence is not a ground for federal habeas relief. See, Barnes, supra. However, the Court did not address Herrera’s assumption that the execution of an innocent person would offend Due Process or Justice O’Connor’s concurring opinion which would expressly adopt this holding. Moreover, the Court of Appeals did not address the issues before the Court. Petitioner was convicted of capital murder and sentenced to death some seven years prior to the appointment of the undersigned counsel. Counsel dutifully began a review of the numerous available records relevant to petitioner’s conviction and sentence. Counsel sought the appointment of an investigator and began an investigation into the circumstances surrounding petitioner’s conviction and sentence. This investigation was yielding results and, within approximately one month of their appointment, counsel provided the Court a thirty-two page memorandum detailing the results of the investigation. The preliminary investigation questioned the three key points the State relied upon to convict petitioner. However, although the evidence obtained clearly questioned petitioner’s guilt, the investigation was far from complete and the evidence obtained in this short time was insufficient to meet any constitutional requirement. Petitioner moved for a continuance of the hearing in this cause to complete this investigation and was denied. Petitioner moved for the appointment of experts in DNA, fingerprinting, blood spatter analysis and crime scene technology to assist in the investigation. Once again petitioner was denied. Petitioner sought to amend his petition to, at a minimum, allege the evidence which had been obtained and his motion was denied. Finally, petitioner sought to dismiss his federal petition without prejudice. Once again petitioner’s motion was denied. Therefore, although petitioner had begun an investigation which was yielding evidence which questioned his guilt, he was denied the time, resources and assistance needed to make any constitutional showing of error.

Petitioner understands that each of his motions were within the discretion of the District Court. See e.g.,Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849 (1964) (Whether a denial of a continuance is error is dependent upon the reasons presented to the trial judge). But the denial of the ability to investigate and prepare a case, or the resources needed to investigate and prepare a case can offend the Due Process Clause. See, Ungar, supra; Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1096 (1985). See also, 21 U.S.C. 848 (q)(4)(B). Moreover, the Court of Appeals ignored its previous holdings establishing a policy of liberal amendment of petitions, U.S. v. Riascos, 76 F.3d 93, 94 (5^th Cir. 1996), Wedgeworth v. Fibreboard Corp. 706 F.2d 541, 546 (5^th Cir. 1983), Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5^th Cir. 1981), Griggs v. Hinds Junior College, 563 F.2d 179 (5^th Cir. 1977), and a general policy allowing the dismissal without prejudice whenever the other party is not unfairly affected. LeCompte v. Mr. Chip, Inc., 628 F.2d 601 (5^th Cir. 1976); and, Manshack v. Southwestern Elec. Power Co., 915 F.2d 172, 174 (5^th Cir. 1990). See, Federal Rules Civ. Proc. 41 (a)(2). And, in contradiction to its opinions in U.S. v. Alford, 999 F.2d 818, 821 (5^th Cir. 1993), U.S. v. Kelly, 973 F.2d 1145, 1152 (5^th Cir. 1992), and, U.S. v. Uptain, 531 F.2d 1281, 1286-1287 (5^th Cir. 1976), the Court of Appeals did not consider what prejudice petitioner suffered in the denial of the motion for continuance.

Petitioner would respectfully show this Court that the Court of Appeals has inappropriately resolved petitioner’s grounds for review under Herrerra, supra. Even if one might assume the Court of Appeals is correct in its holding that Herrerra, supra, held that actual innocence may never become a constitutional issue in a death penalty case, an assumption which petitioner will not concede, such does not preclude consideration of such evidence in light of other constitutional errors. Indeed, petitioner would respectfully show that Schlup expressly recognized the relevance of such evidence to issues of effective assistance of counsel and prosecutorial misconduct. Schlup, 513 U.S. at 313-315, 115 S.Ct. at 860-861. However, until a habeas petitioner is provided the opportunity and resources to conduct and complete such an investigation, the particular constitutional error which relates to such evidence cannot be known. For example, a habeas petitioner could hardly argue that relevant and probative evidence was withheld by the prosecution until the existence of such evidence is known and, in addition, evidence that the prosecution was aware of its probative effect. See generally, Brady, supra.

Such is true in the instant case. Petitioner discovered evidence that not only questioned the evidence presented by the State at trial, but tended to establish that other persons committed this offense. This evidence, some of which was hearsay, was not sufficient in itself to establish constitutional error. However, such evidence was sufficient to warrant further investigation into the circumstances of petitioner’s conviction and sentence and to demonstrate that additional resources were needed. And once such investigation was complete, petitioner would have the ability to demonstrate constitutional error. But such cannot be accomplished without the benefit of the investigation or the resources to conduct the investigation.

This Court previously recognized the dangers of indigency within our criminal justice system. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985), this Court held that when an indigent "defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id., 470 U.S. at 83, 105 S.Ct. at 1096. Petitioner concedes that Ake is applicable for trials and that the instant case is a post-conviction attack. However, petitioner contends the same concerns extant in Ake are applicable here. In Murray v. Giarrantano, 492 U.S. 1, 109 S.Ct. 2765 (1989), Justice Stevens recognized "... The meaningful appellate review necessary in a capital case extends beyond the direct appellate process." Id., 492 U.S. at 24, 109 S.Ct at 2778 (Stevens, J., dissenting). And in an opinion "respecting the denial of the petition for writ of certiorari", Justice Blackmun observed that "[i]n many of these [capital] cases, a federal habeas proceeding is necessary to further develop petitioner’s claims, both factually and legally." O’Dell v. Thompson, 502 U.S. 995, 112 S.Ct. 618 (1991) (Blackmun, J., opinion). Moreover, Congress expressly provided for the appointment of expert and other assistance. 21 U.S.C. Sec. 848. All of which was denied petitioner.

Petitioner respectfully contends that the possession of his rights under the Sixth, Eighth and Fourteenth Amendments mean little if he is without the resources and ability to exercise such rights. Petitioner’s counsel demonstrated a significant issue of innocence in his case. While such may not be an appropriate ground for relief in federal habeas corpus, such should be sufficient to allow petitioner a meaningful opportunity to investigate, examine and test the evidence used to convict him and sentence him to death. Accordingly, petitioner would respectfully show this Court that his rights under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment were violated by the District Court’s denial of his motion for continuance, motion for appointment of experts, motion to amend his petition, and motion to dismiss without prejudice, in that petitioner was denied the ability and resources to adequately investigate evidence of his "actual innocence."

II.

During his state and federal habeas proceedings petitioner contended he suffered ineffective assistance of counsel at trial. Under Strickland v. Washington, supra, petitioner held a burden to prove trial counsels’ representation fell below professional norms, and that the result of his trial would have been different. Id., 466 U.S at 687, 104 S.Ct. at 3064. The Court stated:

Id., 466 U.S. at 691, 104 S.Ct. at 2066.

The additional evidence alleged by petitioner which was available to, but undiscovered by, trial counsel was:

Slip op. pg. 12. This additional evidence was crucial because the case against petitioner was circumstantial. Barnes, 876 S.W.2d at 321. The evidence questioned the testimony of Patrick Williams and Johnny Ray Humphreys who testified petitioner had the murder weapon. Moreover, the additional evidence tended to incriminate Patrick Williams and Johnny Ray Humphreys, which provided the jury a motive for these witnesses’ untruthful testimony. Moreover, the additional evidence questioned the testimony of Robert Brooks who was certain he saw petitioner jump the fence near the victim’s house but was likewise certain the man he saw was not petitioner at the time it occurred. Finally, there was additional evidence to explain why petitioner’s fingerprint was on a lamp in the victim’s home. The evidence established the lamp was in the victim’s home for some time and that there were several reasonable explanations for petitioner’s fingerprint on it. Petitioner contended there could be no reasonable trial strategy in failing to investigate these circumstances or present this evidence.

The Court of Appeals overruled petitioner’s claim finding the new evidence to be cumulative and not necessarily inconsistent with petitioner’s guilt. Slip Op. pg. 13. Petitioner contends such is not a fair evaluation of the evidence. Because of the cumulative nature of the State’s case against petitioner, the Court is hardly in a position to determine exactly how divided the jury was on the issue of petitioner’s guilt. In a close case, additional evidence which may tend to be "cumulative" could be just that quantum of evidence required by the jury to acquit. Especially when that evidence is such that it questions the credibility of the State’s witnesses and implicates at least two of those witnesses. The court further failed to consider the full extent of the lamp evidence. While it is true that the jury heard evidence that petitioner had previously performed work in the victim’s home, the State presented testimony which attempted to prove the lamp was recently acquired. The additional evidence clearly contradicted this testimony.

The petition for a writ of certiorari should be granted.

Respectfully Submitted

Snuggs & Wischkaemper

Attorneys at Law

915 Texas Avenue

Lubbock, Texas 79401

(806) 763-9900

State Bar No. 21802750

Co-Counsel for Appellant

Attorney at Law

P. O. Box 90212

Austin, Texas 78709

(512) 478-3900

(512) 478-5256 (fax)

By:

Gary Taylor

Lead Counsel for Appellant

State Bar No. 19691650

CERTIFICATE OF SERVICE

This is to herein certify that a true and correct copy of the above and foregoing petition has been forwarded to the Texas Attorney General at Supreme Court Building, P. O. Box 12548, Capitol Station, Austin, Texas 78711, and the Wichita County District Attorney’s Office, Wichita County Courthouse, Wichita Falls, Texas, by United States Mail, Return Receipt requested on the date indicated.

Date Gary A. Taylor