ROMINGER LEGAL
Fifth Circuit Court of Appeals Opinions - 5th Circuit
Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL HEADLINES - CASE LAW - LEGAL FORMS
NOT FINDING WHAT YOU NEED? -CLICK HERE
This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH
COURT REPORTERS
PRIVATE INVESTIGATORS
PROCESS SERVERS
DOCUMENT RETRIEVERS
EXPERT WITNESSES

 

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

 
Web Rominger Legal

Legal News - Legal Headlines

 

Revised November 21, 2000
1
IN THE UNITED STATES COURT OF APPEALS
2
FOR THE FIFTH CIRCUIT
3
____________________
4
No. 00-20159
5
____________________
6
DENNIS THURL DOWTHITT
7
Petitioner - Appellant
8
v.
9
GARY L. JOHNSON, DIRECTOR,
10
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
11
INSTITUTIONAL DIVISION
12
Respondent - Appellee
13
_________________________________________________________________
14
Appeal from the United States District Court
15
for the Southern District of Texas
16
_________________________________________________________________
17
October 16, 2000
18
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
19
Judges.
20
KING, Chief Judge:
21
Texas death row inmate Dennis Thurl Dowthitt appeals from
22
the district court's denial of habeas corpus relief. In order to
23
obtain review of his claims, Dowthitt seeks a certificate of
24
appealability (COA) from this court, pursuant to 28 U.S.C.
25
§ 2253(c)(2). We deny Dowthitt's request for a COA.
26
I. FACTUAL AND PROCEDURAL BACKGROUND
27
At Dowthitt's trial, the State presented evidence that
28
Dowthitt and his son, Delton Dowthitt ("Delton"), age 16, picked
29
up Gracie and Tiffany Purnhagen, ages 16 and 9, respectively, on
30
June 13, 1990 in a bowling alley parking lot. According to
31
Delton's testimony at Dowthitt's trial, Dowthitt sexually
32
assaulted Gracie with a beer bottle and cut her throat with a
knife.1 Meanwhile, Delton strangled Tiffany with a rope.2
33
34
Following a jury trial, Dowthitt was convicted of the murder
35
of Gracie Purnhagen committed in the course of aggravated sexual
36
assault. On October 9, 1992, based on the jury's answers,
37
Dowthitt was sentenced to death for capital murder. The Texas
38
Court of Criminal Appeals affirmed his conviction and sentence on
39
June 26, 1996. See Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim.
40
App. 1996).
41
On August 18, 1997, Dowthitt filed a state petition for
42
habeas relief. The state district court, on March 6, 1998,
43
entered findings of fact and conclusions of law and recommended
44
that habeas relief be denied. The Court of Criminal Appeals,
45
adopting most of the findings and conclusions, denied Dowthitt
1
The evidence indicated that Dowthitt cut Gracie's throat
once before and once after the sexual assault. Gracie was still
alive during the assault.
2
Delton pled guilty to the murder of Tiffany Purnhagen.
Pursuant to a plea agreement, he was sentenced to 45 years and
testified against his father at trial. In addition, the second
murder charge for Gracie's death was dropped.
2
46
habeas relief. See Ex Parte Dowthitt, No. 37,557 (Tex. Crim.
47
App. Sept. 16, 1998). On April 19, 1999, the United States
48
Supreme Court denied Dowthitt's petition for a writ of
49
certiorari. See Dowthitt v. Texas, 119 S. Ct. 1466 (1999).
50
After obtaining appointment of counsel and a stay of
51
execution, Dowthitt filed his petition for habeas corpus relief
52
in federal district court on December 30, 1998. In response to
53
Dowthitt's amended petition on February 12, 1999, the State moved
54
for summary judgment. The district court, on January 7, 2000,
55
held an evidentiary hearing on Dowthitt's actual innocence claim.
56
On January 27, 2000, the district court filed a detailed and
57
careful Memorandum and Order and entered a final judgment,
58
denying Dowthitt habeas relief on all claims, dismissing his case
59
with prejudice, and denying Dowthitt's request for a COA. After
60
the district court denied his Rule 59(e) motion, Dowthitt timely
61
appealed to this court, requesting a COA and reversal of the
62
district court's judgment denying habeas relief.
63
II. DISCUSSION
64
Because Dowthitt's petition for federal habeas relief was
65
filed after April 24, 1997, this appeal is governed by the Anti-
66
Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
67
L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d
68
773, 775 (5th Cir. 2000) ("Petitioners whose convictions became
3
69
final before the effective date of the AEDPA were given a grace
70
period of one year to file their federal habeas petitions,
71
rendering them timely if filed by April 24, 1997."). Under
72
AEDPA, a petitioner must first obtain a COA in order for an
73
appellate court to review a district court's denial of habeas
74
relief. See 28 U.S.C. § 2253(c)(1)(A).
75
28 U.S.C. § 2253(c)(2) mandates that a COA will not issue
76
unless the petitioner makes "a substantial showing of the denial
77
of a constitutional right." This standard "includes showing that
78
reasonable jurists could debate whether (or, for that matter,
79
agree that) the petition should have been resolved in a different
80
manner or that the issues presented were adequate to deserve
81
encouragement to proceed further." Slack v. McDaniel, 120 S. Ct.
82
1595, 1603-04 (2000) (internal quotations and citations omitted);
83
see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000).
84
The formulation of the COA test is dependent upon whether
85
the district court dismisses the petitioner's claim on
86
constitutional or procedural grounds. If the district court
87
rejects the constitutional claims on the merits, the petitioner
88
"must demonstrate that reasonable jurists would find the district
89
court's assessment of the constitutional claims debatable or
90
wrong." Slack, 120 S. Ct. at 1604. On the other hand,
91
[w]hen the district court denies a habeas petition on
92
procedural grounds without reaching the prisoner's
93
underlying constitutional claim, a COA should issue
94
when the prisoner shows, at least, that jurists of
95
reason would find it debatable whether the petition
4
96
states a valid claim of a denial of a constitutional
97
right and that jurists of reason would find it
98
debatable whether the district court was correct in its
99
procedural ruling.
100
Id. (emphasis added); see also Hernandez v. Johnson, 213 F.3d
101
243, 248 (5th Cir. 2000).
102
Furthermore, "the determination of whether a COA should
103
issue must be made by viewing the petitioner's arguments through
104
the lens of the deferential scheme laid out in 28 U.S.C.
105
§ 2254(d)." Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.
106
2000). We give deference to a state court decision for "any
107
claim that was adjudicated on the merits in State court
108
proceedings" unless the decision was either "contrary to, or
109
involved an unreasonable application of, clearly established
110
Federal law, as determined by the Supreme Court of the United
111
States," 28 U.S.C. § 2254(d)(1), or the decision "was based on an
112
unreasonable determination of the facts in light of the evidence
113
presented in the State court proceeding," 28 U.S.C. § 2254(d)(2).
114
The "contrary to" requirement "refers to the holdings, as
115
opposed to the dicta, of . . . [the Supreme Court's] decisions as
116
of the time of the relevant state-court decision." (Terry)
117
Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). The inquiry
118
into whether the decision was based on an "unreasonable
119
determination of the facts" constrains a federal court in its
120
habeas review due to the deference it must accord the state
121
court. See id.
5
122
Under the "contrary to" clause, a federal habeas court
123
may grant the writ if the state court arrives at a
124
conclusion opposite to that reached by . . . [the
125
Supreme Court] on a question of law or if the state
126
court decides a case differently than . . . [the
127
Supreme Court] has on a set of materially
128
indistinguishable facts. Under the "unreasonable
129
application" clause, a federal habeas court may grant
130
the writ if the state court identifies the correct
131
governing legal principle from . . . [the Supreme
132
Court's] decisions but unreasonably applies that
133
principle to the facts of the prisoner's case.
134
Id.
135
Section 2254(d)(2) speaks to factual determinations made by
136
the state courts. See 28 U.S.C. § 2254(e)(1). While we presume
137
such determinations to be correct, the petitioner can rebut this
138
presumption by clear and convincing evidence. See id. Absent an
139
unreasonable determination in light of the record, we will give
140
deference to the state court's fact findings. See id.
141
§ 2254(d)(2).
142
Dowthitt seeks a COA from this court on the following
143
issues3: (1) actual innocence, (2) ineffective assistance of
144
counsel, (3) admission of DNA evidence without a factual
145
predicate, (4) State misconduct, (5) failure to instruct the jury
3
Dowthitt states in his opening brief that he does not
appeal all of the issues decided by the district court; he also
states that he does not appeal all of the sub-issues within the
issues he does appeal. As such, he preserves only the briefed
issues for this appeal. See 28 U.S.C. § 2253(c)(3) ("certificate
of appealability . . . shall indicate which specific issue or
issues" are the basis for relief); see also Trevino v. Johnson,
168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that issues not
briefed on appeal are deemed waived).
6
146
on lesser-included offenses, and (6) the district court's limited
147
evidentiary hearing.
148
A. Actual Innocence
149
"Claims of actual innocence based on newly discovered
150
evidence have never been held to state a ground for federal
151
habeas relief absent an independent constitutional violation
152
occurring in the underlying state criminal proceeding." Herrera
153
v. Collins, 506 U.S. 390, 400 (1993).4 Rather, a claim of actual
154
innocence is "a gateway through which a habeas petitioner must
155
pass to have his otherwise barred constitutional claim considered
156
on the merits." Id. at 404. In order for Dowthitt to obtain
157
relief on this claim, "the evidence must establish substantial
158
doubt about his guilt to justify the conclusion that his
159
execution would be a miscarriage of justice unless his conviction
160
was the product of a fair trial." Schlup v. Delo, 513 U.S. 298,
161
316 (1995) (emphasis added).
162
The Herrera Court did assume, arguendo, "that in a capital
163
case a truly persuasive demonstration of `actual innocence' made
164
after trial would . . . warrant habeas relief if there were no
165
state avenue open to process such a claim." 506 U.S. at 417.
166
However, this circuit has rejected this theory. See Graham v.
4
"This rule is grounded in the principle that federal
habeas courts sit to ensure that individuals are not imprisoned
in violation of the Constitution -- not to correct errors of
fact." Id.
7
167
Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied, 120 S.
168
Ct. 1830 (2000).
169
Thus, Dowthitt must first raise substantial doubt about his
170
guilt, which would then cause us to examine any barred
171
constitutional claims.5 Dowthitt's main argument in support of
172
his innocence is that his son Delton confessed to killing
173
Gracie.6 Dowthitt bases this claim on the following: a signed
174
declaration by his nephew Billy Sherman Dowthitt that Delton told
175
him that "Delton killed his girlfriend"; an unsigned affidavit of
176
David Tipps, a former prison inmate in Delton's prison block,
177
stating that Delton claimed to have killed both girls; a signed
178
affidavit by Joseph Ward, a defense investigator, who states he
179
drew up the affidavit that Tipps later refused to sign out of
180
fear for himself; a signed affidavit of James Dowthitt,
181
Dowthitt's brother, that his son Billy told him that Delton said
182
he had killed both girls; and Dowthitt's own written proffer of
183
innocence.
5
See section II.C, infra, which discusses a procedurally
barred claim.
6
In his reply brief, Dowthitt also simply lists other
arguments in support of his actual innocence claim, such as
Delton's prior violent conduct and the lack of physical evidence.
However, because he did not address these sub-issues in his
opening brief, we will not consider them. See Pyles v. Johnson,
136 F.3d 986, 996 n.9 (5th Cir. 1998) ("An appellant abandons all
issues not raised and argued in his initial brief on appeal."
(internal quotations and citation omitted)); see also Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
inadequately argued issues are considered waived).
8
184
Not finding it necessary to conduct an evidentiary hearing,
185
the state habeas court rendered its decision based upon the
186
record. The court found that Delton "did not recant his trial
187
testimony" that Dowthitt killed Gracie and that Billy "never
188
stated that Delton . . . said he killed both girls."
189
The federal district court did, however, hold an evidentiary
190
hearing on Dowthitt's actual innocence claim. Delton again
191
testified in this evidentiary hearing that his father killed
192
Gracie and that he never told Billy otherwise. The court held
193
Dowthitt's other proffered statements inadmissible hearsay and
194
found that even if Billy's statement were to be considered, they
195
failed to provide any convincing account of the events.
196
Determining, in addition, that the state findings were not
197
unreasonable, the district court held that Dowthitt's claim of
198
actual innocence fell far short of the threshold set by the
199
Supreme Court in Herrera.
200
We conclude that Dowthitt has not raised "substantial doubt"
201
as to his guilt. Dowthitt's newly discovered evidence consists
202
solely of affidavits, and these affidavits are "particularly
203
suspect . . . because they consist of hearsay." Herrera, 506
204
U.S. at 417. What Delton allegedly told others is hearsay and
205
does not fall under any exception to the hearsay rule. Cf. FED.
206
R. EVID. 804(b)(3) (statement against interest exception requires
207
that the declarant be unavailable, and in this case, Delton, far
208
from being unavailable, testified at trial and at the district
9
209
court's evidentiary hearing). Not only do Dowthitt's proffers
210
consist of hearsay (some with multiple levels), one is also
211
unsigned. As such, this evidence is not nearly strong enough to
212
raise a substantial doubt about Dowthitt's guilt. Cf. Schlup,
213
513 U.S. at 331 (finding that the "sworn testimony of several
214
eyewitnesses that . . . [the petitioner] was not involved in the
215
crime" raised a sufficient issue that required an evidentiary
216
hearing).
217
In addition, even if we were to consider Billy's hearsay
218
affidavit, we agree with the State that it does not possess
219
sufficient "indicia of reliability" due to its inconsistency with
220
the physical evidence. The physical evidence established that
221
Gracie (who was considered Delton's girlfriend) died from knife
222
wounds to her throat after being sexually assaulted, while her
223
younger sister Tiffany was strangled. Billy, however, states
224
that Delton said he strangled his girlfriend, while Dowthitt
225
sexually assaulted and stabbed the "little girl." As this does
226
not comport with the physical evidence, Billy's statements do not
227
provide us with a convincing account of the events.
228
Furthermore, what Dowthitt puts forth is actually not "newly
229
discovered" evidence. He presented the substance of the
230
affidavits at his trial. In particular, as the state habeas
231
court found, "Delton's first confession, in which he stated that
232
he killed both girls, was admitted in evidence." Delton was
233
cross-examined as to his plea agreement and his prior
10
234
inconsistent confession.7 Thus, the jury had the opportunity to
235
take into account both versions of the murders and determine
236
which was more credible. The jury, with the ability to listen to
237
live testimony, was in a better position to judge the credibility
238
of the witnesses and the accounts of the events; absent a lack of
239
support in the record, we will not second guess their
240
determination. See United States v. Ramos-Garcia, 184 F.3d 463,
241
466 (5th Cir. 1999) (stating that the jury evidently did not
242
believe the alternative explanation of the events and that the
243
court would "`not second guess the jury in its choice'"); United
244
States v. Kaufman, 858 F.2d 994, 1004 (5th Cir. 1988) (finding
245
that it was a "serious mistake . . . to second-guess judgments
246
that . . . [were made] firsthand").
247
We find that Dowthitt's proffered evidence establishing his
248
actual innocence fails to raise a substantial doubt as to his
249
guilt.
250
B. Ineffective Assistance of Counsel
251
Dowthitt must make a substantial showing of a denial of his
252
Sixth Amendment right to counsel to obtain a COA. His
253
ineffective assistance of counsel claim meets the threshold
7
During the State's rehabilitation of Delton's testimony,
Delton's attorney testified as to a prior consistent statement:
that, prior to the plea agreement, Delton had told him that his
father killed Gracie. The state court, on direct appeal, found
that the admission of the attorney's testimony was not erroneous.
11
254
question under AEDPA, § 2254(d)(1), that the rule of law be
255
clearly established at the time of the state court conviction in
256
1992. This is so because the merits of an ineffective assistance
257
of counsel claim are governed by the well-established rule of
258
Strickland v. Washington, 466 U.S. 668 (1984). Dowthitt must
259
establish both prongs of the Strickland test in order to prevail.
260
First, he "must show that counsel's performance was deficient."
261
Id. at 687. Second, he "must show that the deficient performance
262
prejudiced . . . [his] defense." Id.
263
Deficient performance is established by showing "that
264
counsel's representation fell below an objective standard of
265
reasonableness." Id. at 688; Hernandez v. Johnson, 213 F.3d 243,
266
249 (5th Cir. 2000). Moreover, as the Supreme Court has
267
counseled, a "fair assessment of attorney performance requires
268
that every effort be made to eliminate the distorting effects of
269
hindsight . . . and to evaluate the conduct from counsel's
270
perspective at the time." Strickland, 466 U.S. at 689. Thus,
271
our scrutiny of counsel's performance is highly deferential. See
272
id. We must be particularly wary of "argument[s] [that]
273
essentially come[] down to a matter of degrees. Did counsel
274
investigate enough? Did counsel present enough mitigating
275
evidence? Those questions are even less susceptible to judicial
276
second-guessing." Kitchens v. Johnson, 190 F.3d 698, 703 (5th
277
Cir. 1999).
12
278
Prejudice ensues when "there is a reasonable probability
279
that, but for the counsel's unprofessional errors, the result of
280
the proceedings would have been different." Clark v. Johnson,
281
--- F.3d ----, 2000 WL 1285270, *7 (5th Cir. 2000) (internal
282
quotations omitted) (quoting Strickland, 466 U.S. at 694). "A
283
reasonable probability is a probability sufficient to undermine
284
confidence in the outcome." Strickland, 466 U.S. at 694.
285
In his ineffective assistance of counsel claim, Dowthitt
286
raises several sub-issues concerning his mitigation defense,
287
investigation, and closing arguments. We will examine each of
288
his claims in turn.
289
1. Failure to Present a Mitigation Defense
290
Based on Mental Illness
291
Dowthitt argues that trial counsel failed to present a
292
mitigation defense based on mental illness. In support of this
293
argument, Dowthitt points to several aspects of his life and
294
trial. He states that his habeas counsel located records
295
indicating he suffered from mental illness that were not
296
discovered by trial counsel. A 1964 re-admission form from
297
Austin State Hospital shows that a young Dowthitt was diagnosed
298
as having a "schizophrenic reaction" of a "chronic paranoid type"
299
and was committed temporarily. The admission history also states
300
that when Dowthitt was hospitalized due to an automobile accident
301
in August 1962, a test "showed slight brain damage." In
302
addition, Dowthitt points to Sergeant Walter Blakeslee's
13
303
statement of July 14, 1964 recommending that Dowthitt be
304
discharged from the Air Force. Blakeslee stated "it was evident
305
to . . . [him] that Airman Dowthitt was suffering from some
306
mental deficiency."
307
Dowthitt also relies heavily on declarations from Dr. Paula
308
Lundberg-Love and Dr. Faye E. Sultan, mental health experts hired
309
by habeas counsel. Lundberg-Love stated that her "clinical
310
impression was that . . . [Dowthitt] was not sadistic or
311
sociopathic." She further wrote that Dowthitt's "profile was
312
consistent with paranoid and schizophrenic features" and that he
313
suffers from depression. Sultan stated in her affidavit that the
314
interrogation videotapes showed Dowthitt's "severe mental
315
problems" and that the trial mental health expert's "examination
316
was cursory." She also wrote that Dowthitt "functions quite
317
peacefully and successfully within the prison environment,"
318
rebutting the predictions made at trial about his potential for
319
future dangerousness.
320
Dowthitt argues that trial counsel's affidavits provide
321
further support for their deficient performance with regard to
322
his mitigation defense. He states that, by their own words,
323
trial counsel did not investigate mental health defenses because
324
they "had no knowledge that Defendant suffered brain damage," and
325
"he appeared sane and competent at all times." Dowthitt further
326
quotes trial counsel's affidavit: "During our many interviews
327
Defendant never appeared to be suffering from any mental problems
14
328
other than being upset and unhappy about his circumstances."
329
Dowthitt asserts that such impressions on the part of trial
330
counsel were not reasonable because he was on anti-depressants
331
during that time, because his video-taped interrogation exposes
332
his unstable state of mind, and because the Lundberg-Love and
333
Sultan declarations confirm his mental illness.
334
Citing to Goss v. State, the State responds that Texas
335
caselaw has discounted mitigation evidence not relevant to the
336
crime or future dangerousness. 826 S.W.2d 162, 165 (Tex. Crim
337
App. 1992), cert. denied, 509 U.S. 922 (1993). The State further
338
argues that, even in the face of Dowthitt's repeated denials of
339
any mental problems, trial counsel retained a psychiatrist to
340
examine Dowthitt. The State also points out that Dowthitt
341
received funds for neuropsychological expert assistance during
342
the state habeas corpus proceedings, but that no evidence from
343
that expert's testing has ever been presented.
344
As for the reports of Lundberg-Love and Sultan, the State
345
asserts that they are precluded from consideration because they
346
were not presented to the state courts. Further, the State
347
claims that Dowthitt has not established cause and prejudice for
348
his failure to develop this evidence below. Finally, citing to
349
the district court's findings, the State argues that even if the
350
reports were considered, they are insufficient because Lundberg-
351
Love and Sultan appeared to have formed their impressions from
352
speaking with Dowthitt's habeas counsel.
15
353
In reply, Dowthitt argues that under the Supreme Court's
354
decision in (Terry) Williams v. Taylor, the "nexus" requirement
355
for mitigation evidence is erroneous. He further states that
356
although the State continuously refers to "brain damage," he is
357
contesting trial counsel's failure with regard to "mental
358
illness." And, Dowthitt asserts that the Lundberg-Love and
359
Sultan reports are not barred from consideration because he has
360
established "cause" via the denial of funding to obtain experts
361
by the state habeas courts.
362
As for Dowthitt's brain damage claim, the state habeas court
363
found that Dowthitt was competent to stand trial, that no
364
neuropsychological expert had found that Dowthitt suffered from
365
brain damage, and that Dowthitt exhibited no signs of brain
366
damage. These findings8 are not unreasonable in light of the
367
record, and Dowthitt has not presented clear and convincing
368
evidence rebutting their presumption of correctness. Moreover,
369
Dowthitt concedes these findings in his reply brief by abandoning
370
his initial reliance, in part, on brain damage. He states that
371
"mental illness . . . is the mitigation evidence upon which . . .
372
[he] bases his ineffectiveness claims."
373
As for the evidence indicating "mental illness" (the Austin
374
State Hospital and the Air Force records), we are bound by the
8
The state habeas court also found trial counsel's
affidavits, explaining that Dowthitt did not appear to be
suffering from mental problems, to be credible.
16
375
state habeas court's findings that these records included
376
"information which could have hurt . . . [Dowthitt's] case."9
377
Such information included, among other data, the following: that
378
Dowthitt attempted to rape his eight-year old niece, that he had
379
allegedly molested the same girl when she was five, that he had
380
an immature personality (as opposed to psychotic tendencies), and
381
that he "showed a temper and insisted on having his own way." In
382
light of these details, the state habeas court's findings are
383
clearly supported by the record. See 28 U.S.C. § 2254(d)(2).
384
Thus, even assuming arguendo that trial counsel were
deficient in failing to discover these medical records,10
385
386
Dowthitt was not prejudiced in his defense. See Buxton v.
387
Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989) ("Strickland allows
388
the habeas court to look at either prong first; if either one is
389
found dispositive, it is not necessary to address the other.").
390
There is no "reasonable probability" that the outcome would have
391
been different because the evidence was double edged in nature.
9
The state habeas court also found that Dowthitt was not
medicated during trial with any anti-depressant or other mind-
altering medication.
10
We note that Dowthitt steadfastly denied to his trial
counsel that he had any mental problems. See Strickland, 466
U.S. at 691 ("The reasonableness of counsel's actions may be
determined or substantially influenced by the defendant's own
statements or actions."). Still, trial counsel did retain a
psychiatrist, Dr. Fred Fason, to examine Dowthitt; the Sixth
Amendment does not require counsel to continue searching until
they find an expert willing to provide more beneficial testimony
on their behalf.
17
392
As such, trial counsel's actions in not discovering and
393
presenting the records to the jury to bring out indications of
394
mental illness do not create a "probability sufficient to
395
undermine confidence in the outcome." Strickland, 466 U.S. at
396
694.
397
The state habeas court did not make additional findings
398
dealing with Dowthitt's asserted mental illness because Dowthitt
399
did not present any other evidence to that court. The Lundberg-
400
Love and Sultan affidavits were introduced for the first time to
401
the district court on federal habeas review. Thus, we must
402
initially answer the threshold question of whether we are
403
precluded from considering these affidavits. Although both the
404
State and Dowthitt argue this issue as one of "factual
405
development" under § 2254(d) and (e),11 it is more accurately
analyzed under the "exhaustion" rubric of § 2254(b).12
406
407
"We have held that a habeas petitioner fails to exhaust
408
state remedies when he presents material additional evidentiary
409
support to the federal court that was not presented to the state
410
court." Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)
11
Section 2254(e) deals with when a petitioner is entitled
to an evidentiary hearing in federal district court even though
he has failed to develop the factual bases of his claims in state
habeas proceedings.
12
Section 2254(b)(1)(A) states, in part, that "a writ of
habeas corpus . . . shall not be granted unless it appears that
the Applicant has exhausted the remedies available in the courts
of the State."
18
411
(emphasis added); see also Young v. Lynaugh, 821 F.2d 1133, 1139
412
(5th Cir. 1987), abrogation on other grounds recognized by
413
Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989); Brown v.
414
Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983). Furthermore, "we
415
are unwilling to . . . accommodate new factual allegations in
416
support of a previously asserted legal theory, even though these
417
factual allegations came into existence after the state habeas
418
relief had been denied." Joyner v. King, 786 F.2d 1317, 1320
419
(5th Cir. 1986) (emphasis added).
420
Thus, we must first determine whether this claim is before
421
us "in a significantly different and stronger evidentiary posture
422
than it was before the state courts." Joyner, 786 F.2d at 1320.
423
We find that Dowthitt does not allege "new facts" via the
424
affidavits of the two experts because "all crucial factual
425
allegations were before the state courts at the time they ruled
426
on the merits" of Dowthitt's habeas petition. See Young, 821
427
F.2d at 1139; cf. Graham, 94 F.3d at 969 (finding no exhaustion
428
in the case because petitioner did present significant new facts
429
in his federal petition). Dowthitt had presented to the state
430
habeas court his assertions of mental illness of the
431
schizophrenic, paranoid type. The Lundberg-Love and Sultan
432
affidavits add little to those claims.
433
While we find that consideration of these affidavits is not
434
precluded, we do not find them to demonstrate a substantial
435
showing of the denial of the Sixth Amendment right to counsel.
19
436
Even if trial counsel had obtained this information, Dowthitt
437
fails to demonstrate that such information would have altered the
438
jury's judgment. Sultan's affidavit is based on her review of a
439
portion of the paper record, and she did not personally interview
440
Dowthitt. We also agree with the district court's assessment
441
that "much of Dr. Sultan's initial declaration is based on her
442
discussions with habeas counsel rather than on independent
443
analysis" because her statements put forth information that she
could not have known otherwise.13
444
445
Lundberg-Love's affidavit also presents similar problems.
446
She stated that she could have testified to Dowthitt's mental
447
trauma "that he was experiencing as a result of witnessing Delton
448
sexually assault Gracie after he had cut her throat and killed
449
her sister prior to . . . [Dowthitt's] arrival back at the murder
450
scene."14 As the jury had decided not to believe Dowthitt's
451
claims, this version of the murders would not be credited during
452
sentencing. Therefore, even assuming arguendo that trial
453
counsel's performance was deficient,15 Dowthitt fails to make a
13
For example, Sultan states that Dowthitt "spent much of
the interrogation hooked up to a polygraph machine, looking
terrified and confused." However, she does not list the
interrogation videotapes among the materials that she reviewed.
14
Lundberg-Love also noted that she would have testified
regarding the consequences of his mental illness.
15
We pause briefly to address the parties' arguments
regarding the "nexus" requirement for a mitigation defense. So
far as the State is asserting that mitigating evidence "not
connected to the crime or future dangerousness" cannot be
20
454
substantial showing of prejudice on this Strickland claim as he
455
does not demonstrate a sufficient probability that the alleged
456
errors of trial counsel undermined confidence in the outcome.
457
See, e.g., Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir.), cert.
458
denied, 527 U.S. 1055 (1999) ("The potential negative impact of
459
the retardation evidence, in addition to the cold-blooded nature
460
of the murder and . . . [defendant's] other violent conduct,
461
persuades us that the outcome of the sentencing would not have
462
been different if counsel would have investigated further.").
463
2. Failure to Competently Prepare and Use Dr. Fason
464
Dowthitt next asserts constitutional error with regard to
465
trial counsel's inadequate development of Dr. Fred Fason's
466
testimony. Counsel retained Dr. Fason, a psychiatrist, to
467
examine Dowthitt on several issues regarding Dowthitt's mental
468
state. Dowthitt argues that trial counsel did not competently
469
prepare Dr. Fason and did not call Dr. Fason as a witness during
470
trial.
considered, it is not consistent with the Supreme Court's most
recent statement on this issue: "Mitigating evidence unrelated
to dangerousness may alter the jury's selection of penalty, even
if it does not undermine or rebut the prosecution's death-
eligibility case." (Terry) Williams v. Taylor, 120 S. Ct. 1495,
1516 (2000). While the jury can take into account the "totality
of available mitigation evidence," id. at 1515, "a tactical
decision not to present character evidence during the penalty
phase of a capital murder trial because it would open the door
for incidents of prior misconduct . . . [is] not unsound."
Barrientes, 221 F.3d at 774.
21
471
The state habeas court noted the integrity of trial counsel
472
and found their affidavits to be credible. In their affidavits,
473
trial counsel stated that Dr. Fason had a "lengthy interview"
474
with Dowthitt and "spent many hours reviewing various tapes and
475
discussing this case" with counsel. Dowthitt, in turn, points to
476
Dr. Fason's May 13, 1992 notes and states that they "indicate a
477
very short jailhouse interview." He further asserts that he
478
"remembers" the interview being "exceedingly short." Dowthitt
479
does not explain how the notes "indicate" the length of the
480
interview. Dowthitt's personal beliefs, although they may be
481
genuine, do not present clear and convincing evidence that would
rebut the state court's findings.16
482
483
Dowthitt also asserts that trial counsel did not request Dr.
484
Fason to conduct an evaluation for mitigation purposes. The
485
State responds, however, that a letter in trial counsel's files
486
reveals that just such an evaluation was requested. Dowthitt has
487
failed to raise a substantial issue that trial counsel was not
488
reasonable in pursuing a mitigation defense.
489
In addition, Dowthitt contests trial counsel's decision not
490
to call Dr. Fason to testify on Dowthitt's behalf at trial. He
16
Dowthitt also refers to jailhouse records that would
indicate the time spent in the particular interview. He contends
that the State has not released them. However, he does not
develop this argument further and, as such, has not adequately
briefed this issue for our consideration. See Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
inadequately argued issues are considered waived).
22
491
claims that Dr. Fason's report would have demonstrated that he
492
was not dangerous. This assertion fails to meet the deficient
493
performance prong of Strickland. Although Dr. Fason's report
494
contains some information relating to mitigating factors,
495
statements detrimental to Dowthitt are also included that clearly
496
indicate his unwillingness to testify in Dowthitt's favor. Thus,
497
trial counsel's decision not to put a witness on the stand who
498
himself is not entirely favorable toward Dowthitt, and
499
furthermore, who would have to respond with more damaging
500
information during the State's cross-examination, is not
501
objectively unreasonable.17 Trial counsel also elicited
502
favorable information during cross-examination of the State's
503
expert witness, Dr. Walter Quijano.18 This further supports the
504
conclusion that the trial counsel's decision not to put Dr. Fason
505
on the stand was a matter of trial strategy. See Strickland, 466
506
U.S. at 699.
17
In addition, trial counsel's affidavit, found credible
by the state habeas court, states that Dr. Fason reported to them
personally that he believed that Dowthitt was a very dangerous
individual.
18
Dowthitt vehemently contests the beneficial impact of
Quijano's testimony on cross-examination. However, given the
damage that could have been caused by Dr. Fason's testimony and
that some of Dr. Quijano's statements could have been considered
in Dowthitt's favor by the jury, trial counsel's decision was the
result of strategic considerations, one which will not be second-
guessed on federal habeas appeal.
In addition, Dowthitt notes that another capital case has
recently been reversed due to Dr. Quijano's improper testimony.
However, that does not automatically mandate a finding of error
in this case.
23
507
Dowthitt also argues that trial counsel should have found
508
another expert who would be willing to testify to Dowthitt's lack
509
of future dangerousness based on his mental condition. As the
510
district court noted, even in the face of Dowthitt's steadfast
511
denial of any mental problems, trial counsel, "in an abundance of
512
caution," retained a psychiatrist. Thus, the state habeas court
513
finding that trial counsel were "relentless" in their pursuit of
514
Dowthitt's defense is not unreasonable. We also find that
515
"[t]rial counsel performed appropriately, recognizing the
516
possible issues regarding . . . [the defendant's] mental
517
capacity, recognizing the need for expert assistance in exploring
518
these issues," and employing a defense expert. White v. Johnson,
519
153 F.3d 197, 207 (5th Cir. 1998) (emphasis added). Under the
520
circumstances, trial counsel was not deficient by not canvassing
521
the field to find a more favorable defense expert.
522
Dowthitt has failed to make a substantial showing on this
523
ineffective assistance counsel claim. We find that reasonable
524
jurists would not debate the propriety of granting a COA on this
525
issue.
526
3. Failure to Present Dowthitt's Mercy-Evoking Background as
527
Mitigation Through Family Members
528
Dowthitt claims that trial counsel committed constitutional
529
error by not presenting mitigation evidence via family members
530
during the punishment phase of the trial. He argues that the
531
following family members' affidavits demonstrate that they would
24
532
have testified to Dowthitt's abusive upbringing, his mental
533
difficulties, and his loving relationship with some of his
534
children: Darlene Glover, Dowthitt's sister; Stacey Dowthitt,
535
Dowthitt's step-son; and Danna Taft, Dowthitt's wife.
536
As an initial matter, the State argues that consideration of
537
these affidavits is barred on federal habeas appeal because they
538
were not presented to the state courts. The State bases this
539
argument on § 2254(d) and (e). As we explained in section
540
II.B.1, this issue is more appropriately analyzed under the
541
§ 2254(b) exhaustion framework. Thus, if the case is in a
542
significantly stronger evidentiary framework before the federal
543
habeas court than it was before the state habeas court, the
544
exhaustion requirement has not been satisfied. See section
545
II.B.1, supra. Dowthitt replies that the substance of these
546
affidavits was presented to the state courts through the
547
affidavits of the state habeas investigator detailing his
548
interviews with these family members. We agree with Dowthitt
549
that no "new facts" are presented to us and that the state habeas
550
court had the critical facts before it. See Young, 821 F.2d at
551
1139. Thus, the exhaustion requirement of § 2254(b) has been
satisfied.19
552
19
We note that the state habeas court found that Dowthitt
failed to obtain affidavits of his family members and did not
show that they could not be obtained without court order. We
agree with the district court's assessment that Dowthitt was not
justified in not presenting those affidavits to the state habeas
court. However, this impacts the need for a federal evidentiary
25
553
The state habeas court found that Dowthitt "did not want any
554
of his family testifying on his behalf." Counsel will not be
555
deemed ineffective for following their client's wishes, so long
556
as the client made an informed decision. See Autry v. McKaskle,
557
727 F.2d 358, 361 (5th Cir. 1984) ("By no measure can . . . [the
558
defendant] block his lawyer's efforts and later claim the
559
resulting performance was constitutionally deficient.").
560
Dowthitt contests the state habeas court's finding by arguing
561
that he did not understand the import of mitigating evidence (and
562
trial counsel did not even discuss it with him). We agree with
563
the district court that Dowthitt's personal belief (in a proffer
564
submitted at the January 7, 2000 hearing) does not present clear
and convincing evidence to rebut the state court's finding.20
565
566
In addition, trial counsel, in an affidavit found to be
567
credible by the state habeas court, stated that they "attempted
568
to talk to anyone" who would cooperate21 and that many potential
569
witnesses did not want to become involved. Thus, trial counsel
570
attempted to delve into Dowthitt's background, but were hindered
571
by external forces. Unlike trial counsel in (Terry) Williams v.
hearing under § 2254(e) and is not relevant to the exhaustion
determination under § 2254(b). See, infra, section II.F.
20
We also note that in their affidavit, found credible by
the state habeas court, trial counsel stated they "discussed the
case in detail" with Dowthitt.
21
The state habeas court found that they did speak with
Stacey Dowthitt.
26
572
Taylor, 120 S. Ct. 1495 (2000), counsel's actions here would be
573
characterized as reasonable trial strategy because they attempted
574
to investigate Dowthitt's background and were thwarted by
575
uncooperative potential witnesses.
576
Trial counsel further stated in their affidavit that some
577
people who did speak with them had knowledge of factors
578
detrimental to Dowthitt. We have held that the "failure to
579
present . . . evidence would not constitute `deficient'
580
performance within the meaning of Strickland if . . . [counsel]
581
could have concluded, for tactical reasons, that attempting to
582
present such evidence would be unwise." Williams v. Cain, 125
583
F.3d 269, 278 (5th Cir. 1997); cf. (Terry) Williams, 120 S. Ct.
584
at 1497-98 (finding that counsel's tactical decision to focus on
585
defendant's voluntary confession, without undertaking any sort of
586
investigation into defendant's background, was not justifiable
587
trial strategy).
588
Thus, Dowthitt has not made a substantial showing that the
589
actions of his trial counsel were objectively unreasonable. As
590
he fails to demonstrate sufficient evidence to meet the deficient
591
performance prong of the Strickland test, he has not shown that
592
the issue is debatable among reasonable jurists. We therefore
593
deny Dowthitt's request for a COA based on this ineffective
594
assistance of counsel claim.
595
4. Failure to Investigate for the Guilt/Innocence Phase and the
596
Punishment Phase
27
597
Dowthitt argues that trial counsel did not adequately
598
conduct their own investigation. In this regard, he makes the
599
following contentions: trial counsel did not interview any
600
significant State witnesses, "deferring" instead to the State's
601
version of the events without performing independent analysis;
602
they did not discover that Darla Dowthitt's own trial had been
603
repeatedly reset and did not inform the jury about her pending
604
felony case for indecency with a child; they failed to adequately
605
impeach Delton by not presenting his prior misconduct; and they
606
did not follow through on their own DNA testing.
607
The state habeas court found that, based on the credible
608
affidavits of trial counsel, "trial counsel extensively reviewed
609
the State's file and evidence collected in this case." Trial
counsel also stated in their affidavit that they hired DNA,22
610
611
fingerprinting,23 and psychiatric experts. The record
612
illustrates that these experts made findings in line with the
613
State's evidence. We find that trial counsel did not blindly bow
614
to the State's evidence and attempted to dispute it. That they
22
The State also asserts that Dowthitt has failed to
present any exculpatory DNA evidence, despite court funding for
further testing. Dowthitt responds that there was no residue
left upon which to conduct such testing, "even at trial." We
question how Dowthitt can make this statement and yet fault trial
counsel for allegedly not having their own DNA tests performed.
23
The state habeas court also found specifically that
counsel hired a qualified fingerprint expert, who confirmed the
State's findings.
28
615
were not successful in their attempts does not render their
616
performance deficient.
617
The state habeas court also found that "trial counsel
618
investigated Delton's background." This finding is reasonable in
619
light of the record. Trial counsel knew about Delton's prior
620
misconduct and actually attempted to admit evidence of this
621
during trial. The trial court, however, excluded them (after a
622
hearing on the issue) as violating Texas Rule of Criminal
623
Evidence 609(b). Dowthitt's only response to this is that the
624
Texas rules of evidence should be found offensive to the
625
Constitution because they unfairly and arbitrarily prejudiced his
626
defense.
627
However, the very case that Dowthitt cites for support
628
recognizes that the fundamental fairness concept works to
629
discredit evidentiary rules in very limited circumstances. See
630
Fuller v. State, 829 S.W.2d 191, 207-08 (Tex. Crim. App. 1992).
631
The Fuller court emphasized that the Constitution does not easily
632
undo the rules of evidence:
633
Every rule of evidence works a hardship on some
634
litigants part of the time, and it is easy to
635
sympathize with the frustration of any party whose most
636
promising strategy turns out to be objectionable under
637
the law. But we are not at liberty to relieve every
638
such disappointment with an ad hoc suspension of the
639
Rules.
640
Id. at 207. The Fuller court noted that "the report Appellant
641
sought to introduce in this case is precisely the sort of thing
642
which the hearsay rule, in spite of its many exceptions, is still
29
643
specifically designed to exclude." Id. at 208. Similarly, in
644
this case, Dowthitt sought to introduce evidence that went to the
645
heart of the rules of evidence against using prior misconduct to
646
show conformity with the alleged conduct.24 This is not the sort
647
of instance that demands the use of the Constitution to disregard
648
fundamental evidentiary rules.
649
We also find that trial counsel's performance was not
650
deficient with regard to discovering Darla Dowthitt's felony
651
indictment for indecency with a child. Trial counsel requested
652
and received a discovery order for the criminal record of all
653
State witnesses. Dowthitt falls far short of demonstrating
654
deficient performance in this regard.
655
Dowthitt has not made a substantial showing of ineffective
656
assistance of counsel due to inadequate investigation. As such,
657
he is not entitled to a COA on this claim.
658
5. Inadequate Closing Arguments at the Guilt/Innocence
659
Phase and the Penalty Phase
660
Dowthitt argues that trial counsel's closing arguments were
661
inadequate because they undermined their own case by
662
misrepresenting facts and making unjustifiable concessions. He
663
focuses primarily on counsel's comments regarding the DNA
664
results. Trial counsel stated in closing argument, in relevant
665
part:
24
We note that the State points out that trial counsel did
elicit some evidence of past misconduct from Quijano and Delton.
30
666
The blood, all right. There's been testimony there's
667
some blood on the bottle . . . . We get down here to
668
Picture 75 and 76 and we get a spot on the bottom that
669
we know was blood because they scraped that spot off
670
and they sent it in and the DNA people said 95 probably
671
Gracie's blood. But that's on the bottom and that's a
672
little tiny bit and does that mean that the bottle sat
673
down in or rolled around or came near or got on a piece
674
of bloody clothing or in some other matter connected
675
with the blood? We assume that 95 percent is close
676
enough that it is Gracie's blood. It doesn't tell us
677
how it got there.
678
State Trial Transcript, Vol. XXXIV at 1270-71 (emphasis added).
679
Dowthitt contends it was a plain misstatement to convey that
680
there was a ninety-five percent probability the blood was
681
Gracie's because the DNA test merely revealed that ninety-five
682
percent of the population was excluded, with Gracie being among
683
the five percent possible contributors of the blood.25 Dowthitt
684
further points to his expert's testimony on habeas that if the
685
jury had been informed of the significant number of people who
686
share that genetic profile, the jury would have more accurately
687
assessed the evidence.
688
The state habeas court found that "trial counsel were
689
zealous advocates for . . . [Dowthitt's] defense during closing
690
argument." Dowthitt falls far short of producing clear and
691
convincing evidence to rebut the presumption of correctness we
692
afford this finding under AEDPA. While counsel's
693
characterization of the test results were not entirely on point,
25
The DNA testing also revealed that Dowthitt and Delton
were part of the ninety-five percent excluded as possible
contributors.
31
694
the closing arguments as a whole were thorough and effective.
695
The record demonstrates that trial counsel drove home the point
696
that the DNA evidence did not tie Dowthitt to the crime -- that
697
the blood could have gotten on the bottle in any number of other
698
ways. We find without reservation that trial counsel's
699
performance was sufficient in this regard.
700
Dowhtitt also argues that trial counsel was deficient during
701
the closing arguments for the penalty phase. Dowthitt faults
702
trial counsel for statements that Dowthitt suffered from a
703
"disease" that resulted in his acting in a "frenzy, like the
704
feeding of a shark or something." Dowthitt also asserts that
705
trial counsel "`argued' against Mr. Dowthitt being a future
706
danger by positing that his only victims in prison would be
707
`effeminate men.'"
708
Dowthitt cannot manufacture deficient performance by
709
selectively extracting phrases from trial counsel's closing
710
argument and mischaracterizing them. While we would not endorse
711
every aspect of trial counsel's statements, nevertheless, taken
712
in full context, those statements for the most part were
713
beneficial because they went toward demonstrating that Dowthitt's
714
actions were not deliberate26 and that he did not present a
26
Pursuant to Section 37.071(b) of the Texas Code of
Criminal Procedure, the jury had to answer two special issues
during the punishment phase. Special Issue No. 1 dealt with
deliberateness: "[w]hether the conduct of the defendant that
caused the death of the deceased was committed deliberately and
with reasonable expectation that the death of the deceased or
32
715
continuing danger.27 Furthermore, we note we have held that
716
counsel's acknowledgment of aspects of the case can be a proper
717
"effort to bolster credibility with the jury." Kitchens v.
718
Johnson, 190 F.3d 698, 704 (5th Cir. 1999). We will not second
719
guess such strategic decisions under the teaching of Strickland.
720
Dowthitt's assertions regarding trial counsel's closing
721
arguments fail to demonstrate substantial doubt on his Sixth
722
Amendment right. As such, he is not entitled to a COA on this
723
ineffective assistance of counsel claim.
724
In sum, the state habeas court found "trial counsel were
725
relentless in the defense of their client in the face of a very
726
bad set of facts." In addition, the court found that Dowthitt
727
failed "to show that the outcome of his trial would have been
728
different but for the alleged instances of ineffective assistance
729
of counsel." Dowthitt has not presented clear and convincing
730
evidence to rebut the presumption of correctness we afford to
731
state court findings under AEDPA. Furthermore, our review also
732
reveals that the state court was not unreasonable in its finding
733
in light of the record. We therefore find that Dowthitt has not
734
demonstrated a substantial showing of the denial of his
another would result."
27
Special Issue No. 2 dealt with future dangerousness:
"[w]hether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing
threat to society."
33
735
constitutional right to counsel, and we deny his application for
736
a COA on this claim.
737
C. Admission of DNA Evidence Without a Factual Predicate
738
Dowthitt argues that he was denied due process of law under
739
the Fourteenth Amendment when DNA evidence28 was admitted at
740
trial without a proper factual predicate. Pointing to the lack
741
of a prior hearing to determine the admissibility of the DNA
742
evidence, Dowthitt asserts that his constitutional rights were
743
violated. The state habeas court found that Dowthitt "failed to
744
object to the trial court's failure to hold a hearing on the
745
reliability of the DNA evidence and waived any error."
746
In all cases in which a state prisoner has defaulted
747
his federal claims in state court pursuant to an
748
independent and adequate state procedural rule, federal
749
habeas review of the claims is barred unless the
750
prisoner can demonstrate cause for the default and
751
actual prejudice as a result of the alleged violation
752
of federal law, or demonstrate that failure to consider
753
the claims will result in a fundamental miscarriage of
754
justice.
755
Coleman v. Thompson, 501 U.S. 722, 750 (1991). The state
756
procedural rule at issue in this instance is adequate because it
28
During the trial's guilt/innocence phase, the State
presented expert testimony regarding DNA testing performed on
"blood scrapings" taken from a beer bottle discovered in
Dowthitt's auto shop. The expert testified that DQ alpha typing
was done on the sample due to its small size. The State's
evidence indicated that although "typing" was far less
determinative than DNA "fingerprinting," it permitted a
conclusion that Gracie was within the five percent of the
population not excluded as contributors of the blood.
34
757
has been "strictly or regularly followed." Amos v. Scott, 61
758
F.3d 333, 339 (5th Cir. 1995). "This Circuit has held that the
759
Texas contemporaneous objection rule is strictly or regularly
760
applied evenhandedly to the vast majority of similar claims, and
761
is therefore an adequate procedural bar." Corwin v. Johnson, 150
762
F.3d 467, 473 (5th Cir. 1998).
763
As for the cause-and-prejudice exception, cause is
764
demonstrated by establishing that some objective external factor
765
"`impeded counsel's efforts to comply with the State's procedural
766
rule.'" Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1999)
767
(quoting Coleman). Dowthitt maintains that cause existed for his
768
default. The failure to object he contends, is the result of
769
trial counsel's ineffectiveness. "[C]ounsel's ineffectiveness
770
will constitute cause only if it is an independent constitutional
771
violation." Coleman, 501 U.S. at 755; see also Ellis v. Lynaugh,
772
883 F.2d 363, 367 (5th Cir. 1989) (citing Murray v. Carrier, 477
773
U.S. 478, 488 (1986)). Dowthitt puts forth two arguments to
774
establish that counsel's ineffective assistance was of
775
constitutional dimension: (1) counsel's failure to request the
776
hearing and (2) counsel's concession that the blood from the
777
bottle was conclusively Gracie's.
778
First, Dowthitt does not provide further detail (beyond his
779
assertion) as to why the failure to object rose to the level of a
780
Sixth Amendment violation. Because this issue is inadequately
781
briefed, we do not consider it on appeal. See Trevino, 168 F.3d
35
782
at 181 n.3. Furthermore, we have previously held that a mere
783
allegation "that . . . [trial counsel] provided ineffective
784
assistance of counsel in failing to so object[]" is not
785
sufficient to establish constitutionally prohibited conduct.
786
Washington v. Estelle, 648 F.2d 276, 278 (5th Cir. 1981) (stating
787
that it is "not for federal courts to speculate as to possibly
788
[sic] reasons for failure to object." (internal quotations and
789
citation omitted)). Dowthitt's second argument for cause also
790
fails because we found in section II.B.5 that trial counsel's
791
statements regarding DNA evidence did not rise to the level of
792
constitutional error.
793
Dowthitt also cannot rely on the "fundamental miscarriage of
794
justice" exception to the procedural bar because he did not
795
demonstrate substantial doubt as to his actual innocence. See
796
section II.A, supra; see also Fearance v. Scott, 56 F.3d 633, 637
797
(5th Cir.), cert. denied, 515 U.S. 1153 (1995) (rejecting the
798
defendant's attempt to expand the "narrow scope" of the
799
fundamental miscarriage of justice exception).
800
Thus, we find that Dowthitt's claim regarding the admission
801
of DNA evidence is procedurally barred from federal habeas
802
review.29 We deny Dowthitt's request for a COA on this claim
29
We also note that the state habeas court found, "[i]n
the alternative, the State proved the reliability of the DNA
evidence during the trial and there was no due process
violation."
36
803
because he does not demonstrate that reasonable jurists would
find it debatable that the procedural ruling was correct.30
804
805
D. State Misconduct
806
Dowthitt argues that state misconduct violated his right to
807
due process and a fair trial. In this regard, he makes the
808
following claims: intimidation of potential defense witness David
809
Tipps, breach in the chain of custody of the blood sample,
810
misrepresentation of the DNA evidence to the jury, failure to
811
disclose a felony indictment of State witness Darla Dowthitt,
812
and mischaracterization of Dowthitt's interrogation statement
813
that he "was there the whole time." We will address each of
these arguments in turn.31
814
815
1. Intimidation of Potential Defense Witness
30
As we find that the first prong of the Slack COA inquiry
for procedural claims has not been met, we do not need to address
the second prong.
31
As an initial matter, we note that the state habeas
court found Dowthitt did not adequately brief his state
misconduct claims and thus did not properly present them for
review. This indicates a lack of exhaustion on Dowthitt's part
because he did not "fairly apprise the . . . state of the federal
rights which were allegedly violated." Deters v. Collins, 985
F.2d 789, 795 (5th Cir. 1993). However, as the state habeas
court did not explicitly find that Dowthitt waived his misconduct
claims and went on to make findings regarding those claims, we
find that the state court had a "fair opportunity to pass upon
the claim[s]." Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.
1999) (internal quotatios and citation omitted).
37
816
Dowthitt first asserts that David Tipps, Delton's jailmate,
817
would have testified that Delton claimed he killed both girls;
818
however, after a visit from two State investigators, Tipps
819
refused to testify. Dowthitt submits the affidavit of Joseph
820
Ward, his state habeas investigator, in support of the claim that
821
the State agents intimidated Tipps into not testifying. Ward
822
states in his affidavit that Tipps would not sign an affidavit
823
out of fear for himself.
824
We must first decide whether this claim was "adjudicated on
825
the merits in State court proceedings." 28 U.S.C. § 2254(d).
826
The state trial court held a hearing outside the presence of the
827
jury on this issue, and Dowthitt contested the trial court's
828
ruling on direct appeal. See Dowthitt v. State, 931 S.W.2d 244,
829
267 (Tex. Crim. App. 1996). However, Dowthitt did not raise this
830
issue in his state habeas proceeding, but did do so in his brief
831
to the federal district habeas court.
832
"When faced with a silent or ambiguous state habeas
833
decision, the federal court should `look through' to the last
834
clear state decision on the matter." Jackson v. Johnson, 194
835
F.3d 641, 651 (5th Cir. 1999). Although the state habeas
836
decision is silent on this particular misconduct claim, the Texas
837
Court of Criminal Appeals, on direct appeal, unambiguously dealt
838
with the issue. "Having determined that the issue was
839
adjudicated on the merits in state courts, we owe deference to
38
840
their disposition of the claim under § 2554." Barrientes, 221
841
F.3d at 780.
842
The Court of Criminal Appeals determined that Tipps's fears
843
of being a "snitch," rather than a fear of prosecution, motivated
844
his decision not to testify in Dowthitt's defense. It based this
845
holding, in part, on Tipps's continued defiance even in the face
846
of the trial court holding him in contempt. We conclude that
847
reasonable jurists could not debate whether the decision of the
848
Court of Criminal Appeals was "contrary to, or involved an
849
unreasonable application of, clearly established . . . [Supreme
850
Court] law." 28 U.S.C. § 2254(d)(1). As such, reasonable
851
jurists could not "debate whether (or, for that matter, agree
852
that) the petition should have been resolved in a different
853
manner." Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000). We
854
find that Dowthitt is not entitled to a COA on this state
855
misconduct claim.
856
2. Breach in the Chain of Custody of the Blood Sample
857
Dowthitt claims that the blood from which the DNA was
858
extracted originally came from a knife, and not a beer bottle, as
859
presented at trial. In support, he offers the photograph of an
860
evidence label that has the typewritten words "scrapings from
861
lock blade knife" crossed out and replaced with the handwritten
862
words "from bottle." Dowthitt argues that the State thus
39
863
presented false testimony, violating his Fourteenth Amendment
864
rights.
865
The state habeas court made several findings in this regard,
866
including: "no blood scrapings other than those from a beer
867
bottle recovered from [Dowthitt's] shop were submitted for
868
testing[]"; "`scrapings from lock blade knife' [on evidence
869
label] was in error[]"; "only scrapings from a bottle, and not a
870
knife, were submitted for DNA testing."
871
These findings are not unreasonable "in light of the
872
evidence presented in the State court proceeding." 28 U.S.C.
873
§ 2254(d)(2). Given the high deference we accord to state court
874
determinations, we find that reasonable jurists would not debate
875
whether it should be have been resolved in a different manner,
876
and as such, we deny to issue a COA on this claim.
877
3. Misrepresentation of DNA Evidence to the Jury
878
Dowthitt argues that the State misrepresented the
879
conclusiveness of the DNA evidence to the jury during closing
880
arguments. He contests the following statement: "You know it is
881
Gracie's blood on that beer bottle."
882
First, we need to consider if this claim was adjudicated on
883
the merits during state proceedings for § 2254(d) deference
884
purposes. Dowthitt failed to object to this statement during
885
trial and did not raise it on direct appeal. He did argue the
886
issue during state habeas proceedings, but the state habeas court
40
887
made no findings in this regard. Therefore, we must examine the
888
following factors to determine whether an adjudication on the
889
merits occurred:
890
(1) what the state courts have done in similar cases;
891
(2) whether the history of the case suggests that the
892
state court was aware of any ground for not
893
adjudicating the case on the merits; and (3) whether
894
the state courts' opinions suggest reliance upon
895
procedural grounds rather than a determination on the
896
merits.
897
Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
898
As for the first factor, Texas courts have consistently held
899
that unless the prosecutor's comments were "clearly calculated to
900
inflame the minds of the jurors and is of such character as to
901
suggest the impossibility of withdrawing the impression
902
produced," the failure to object timely waives any error. Van
903
Zandt v. State, 932 S.W.2d 88, 93 n.1 (Tex. App. -- El Paso 1996,
904
pet. ref'd). We find that the prosecutor's argument in this case
905
does not fall within the exception to the failure to make a
906
contemporaneous objection. As Dowthitt did not object at trial,
907
the first factor points toward an adjudication on the merits.
908
Similarly, the history of the case also favors adjudication
909
on the merits. Rather than arguing the contemporaneous objection
910
rule, the State addressed this claim on the merits the first time
911
it was raised, in federal habeas proceedings. As for the third
912
factor, we have previously held that under Texas law, "a denial
913
of relief by the Court of Criminal Appeals serves as a denial of
914
relief on the merits." Miller v. Johnson, 200 F.3d 274, 281 (5th
41
915
Cir. 2000). Thus, the state court's denial of habeas relief does
916
not indicate a procedural adjudication.
917
We find that an "adjudication on the merits" under § 2254(d)
918
occurred with regard to this state misconduct claim. Therefore,
919
we conduct a deferential review, as mandated by AEDPA. We next
920
proceed to analyze whether Dowthitt made a substantial showing of
921
the denial of his due process and fair trial rights.
922
In habeas corpus proceedings, we review allegedly improper
923
prosecutorial statements under a strict standard. "The
924
statements must render the trial fundamentally unfair."
925
Barrientes, 221 F.3d at 753. "[I]t is not enough that the
926
prosecutors' remarks were undesirable or even universally
927
condemned. The relevant question is whether the prosecutors'
928
comments so infected the trial with unfairness as to make the
929
resulting conviction a denial of due process." Darden v.
930
Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and
931
citations omitted).
932
We have held that "[i]n the context of closing argument,
933
. . . [the prosecutor is not] prohibited from reciting to the
934
jury those inferences and conclusions she wishes the jury to draw
935
from the evidence so long as those inferences are grounded upon
936
evidence." United States v. Munoz, 150 F.3d 401, 414-15 (5th
937
Cir. 1998), cert. denied, 525 U.S. 1112 (1999) (internal
938
quotations omitted). In this case, the prosecutor's statement is
42
939
a reasonable one, requesting the jury to draw a desired
conclusion based upon the evidence.32
940
941
As such, we find that the state court denial of Dowthitt's
942
claims reasonable under the standards set forth by § 2254(d).
943
Dowthitt does not demonstrate a substantial showing of the denial
944
of his due process rights and, therefore, is not entitled to a
945
COA in this regard.
946
4. Failure to Disclose Felony Indictment of State Witness
947
Dowthitt argues that the State failed to disclose that Darla
948
Dowthitt, Dowthitt's daughter, was under felony indictment
949
(indecency with a child) when she testified for the prosecution
950
at the guilt/innocence phase of the trial. Pointing to the fact
951
that Darla's own trial date was reset several times, Dowthitt
952
claims that an oral agreement had been struck between the State
953
and Darla. Thus, the nondisclosure violated the Supreme Court's
954
mandate in Brady v. Maryland, 373 U.S. 83 (1963). The State
955
responds that no deal was struck for Darla's testimony, and as
956
such, Dowthitt has no viable Brady claim.
957
The suppression of evidence material to guilt or punishment
958
violates a defendant's fundamental due process rights. See id.
959
at 87. The Court has "since held that the duty to disclose such
960
evidence is applicable even though there has been no request by
961
the accused, and that the duty encompasses impeachment evidence
32
The State presented the DNA results and the testimony of
experts explaining those results during trial.
43
962
as well as exculpatory evidence." Strickler v. Greene, 527 U.S.
963
263, 280 (1999) (citations omitted). Such evidence is material
964
"if there is a reasonable probability that, had the evidence been
965
disclosed to the defense, the result of the proceeding would have
966
been different." Kyles v. Whitley, 514 U.S. 419, 433 (1995)
967
(internal quotations and citations omitted).
968
"To prevail on a Brady claim, the defendant must [thus]
969
demonstrate that (1) the prosecution suppressed evidence; (2) the
970
evidence was favorable to him; and (3) the evidence was `material
971
either to guilt or punishment.'" Vega v. Johnson, 149 F.3d 354,
972
363 (5th Cir. 1998), cert. denied., 525 U.S. 1119 (1999). In
973
this case, there is no dispute that the indictment existed and
974
the prosecution did not reveal it to the defense. This evidence
975
arguably would have been favorable to Dowthitt's case.
976
While the first two prongs of the test have been satisfied
977
here, Dowthitt fails on the third prong -- materiality. "The
978
existence of an indictment, as opposed to a conviction, is not
979
generally admissible to impeach." Id. (citing as example
980
Michelson v. United States, 335 U.S. 469, 482 (1948)). "Under
981
Texas law, the existence of the indictment becomes admissible
982
only if the witness, on direct examination, misrepresents himself
983
as having no trouble with the law . . . . The only other
984
exception, for witnesses whose testimony might be affected by the
985
indictment . . . [is a] relationship between [the] prosecution
44
986
and [the witness's] case." Id. (internal quotations and citation
987
omitted).
988
First, Darla made no such misrepresentations, and thus the
989
first exception would not have applied. Dowthitt also cannot
990
rely on the second exception. The state habeas court found that
991
the "prosecutors did not offer Darla a deal for her testimony and
992
did not reset her case to avoid a felony conviction for
993
impeachment purposes." We presume this finding to be correct
994
under § 2254(e)(1). Dowthitt has not clearly and convincingly
995
refuted the evidence in the record supporting the state court's
996
determination that no suppression of evidence occurred because no
deal even existed.33
997
998
We find that Dowthitt fails to demonstrate the requisite
999
"reasonable probability" that the outcome would have been
1000
different. Thus, he does not make a substantial showing of the
1001
denial of a constitutional right and is not entitled to a COA on
1002
this claim.
1003
5. Mischaracterization of Dowthitt's Interrogation Statement
33
Testifying at the punishment phase, Darla unequivocally
stated that no deal existed, that she did not believe a deal
existed, and that she would not make a deal because she was "not
guilty." The prosecutor filed an affidavit during state habeas
proceedings also affirming that no deal was made with Darla to
procure her testimony. In response, Dowthitt states that Darla
eventually received a lenient sentence for a plea and early
release from probation. This information, by itself, is not
sufficient to overcome the above evidence to the contrary (as any
number of factors could have accounted for the eventual
disposition of her case).
45
1004
Detective Hidalgo testified during the guilt/innocence phase
1005
that Dowthitt stated during the interrogation, "I was there the
1006
whole time."34 Dowthitt asserts that this statement was
1007
misrepresented as a admission of being present at the scene. He
1008
claims that the video of the interrogation demonstrates that
1009
Dowthitt was actually indicating disbelief by repeating the
1010
statement.
1011
As we have done in Part II.D.2 and II.D.3, supra, we must
1012
first determine whether an adjudication on the merits occurred in
1013
state courts. With no statement from the habeas court directly
1014
on point, we are directed to look through to the last clear state
1015
decision on the issue. See Jackson v. Johnson, 194 F.3d 641, 651
1016
(5th Cir. 1999). On direct appeal, the Texas Court of Criminal
1017
Appeals found that Dowthitt's "admission to being present during
1018
the murders occurred around 1:00 a.m." Dowthitt v. State, 931
1019
S.W.2d 244, 253 (Tex. Crim. App. 1996). Thus, we find that this
1020
issue was adjudicated on the merits in state proceedings, and we
1021
examine the result with the deference demanded by AEDPA. See 28
1022
U.S.C. § 2254(d).
34
The interrogation went, in relevant part, as follows:
Mr. Dowthitt:
Man, I didn't do nothing.
Hidalgo:
But you were there, not soon after it
happened, weren't you? You weren't far
away.
Hendricks:
He was there the whole time.
Hidalgo:
And you know what's bothering you?
Mr. Dowthitt:
I was there the whole time.
46
1023
Beyond his assertions that he did not make an admission,
1024
Dowthitt does not demonstrate that the state court's adjudication
1025
was unreasonable in light of the record.35 Thus, reasonable
1026
jurists would not "debate whether . . . the petition should have
1027
been resolved in a different manner." Slack v. McDaniel, 120 S.
1028
Ct. 1595, 1603-04 (2000). Accordingly, we deny Dowthitt a COA on
1029
this claim.
1030
E. Instruction on Lesser-Included Offenses
1031
Dowthitt argues that the trial court erred in failing to
1032
instruct the jury on lesser-included offenses of murder, felony
1033
murder or aggravated sexual assault, thus violating his rights
1034
under the Fifth, Sixth, Eighth, and Fourteenth Amendments.36 He
1035
asserts that evidence existed that would support convictions on
1036
the lesser crimes, as opposed to capital murder: the beer bottle
1037
with Gracie's blood indicated sexual assault, but not murder; the
35
Both the state court and the district court below
reviewed the videotapes and disagreed with Dowthitt's
characterization of the statement.
36
We note that the state habeas court found Dowthitt "did
not object to the absence of a lesser-included instruction."
However, the court did not explicitly find that, as a matter of
law, Dowthitt waived any error (which the court did with regard
to the admission of DNA evidence). This, combined with the fact
finding that Dowthitt was not guilty of the lesser-included
offense, indicates that the state habeas court made its decision
on the merits. We therefore do not find a procedural bar to this
claim. Furthermore, "[h]aving determined that the issue was
adjudicated on the merits in state courts, we owe deference to
their disposition of the claim under § 2254." Barrientes v.
Johnson, 221 F.3d 741, 780 (5th Cir. 2000).
47
1038
knife alleged to be the murder weapon was not connected to the
1039
sexual assault; and the jury knew that Delton confessed to
1040
killing both girls in his first confession. The State responds
1041
that one cannot base an argument for a lesser-included offense on
1042
the jury disbelieving portions of the State's case. In reply,
1043
Dowthitt maintains, given that no relevant physical evidence
1044
actually connected him to the murder, the jury had before it
1045
multiple scenarios, which lead to different crimes.
1046
We do not agree because Dowthitt fails to make a substantial
1047
showing that his case met the requirements that would necessitate
1048
instructions on lesser-included offenses.37 Contrary to
1049
Dowthitt's assertions, "[i]t is not enough that the jury may
1050
disbelieve crucial evidence pertaining to the greater offense.
1051
Rather, there must be some evidence directly germane to a
1052
lesser-included offense for the factfinder to consider before an
1053
instruction on a lesser-included offense is warranted." Jones v.
1054
Johnson, 171 F.3d 270, 274 (5th Cir. 1999; see also Banda v.
1055
State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) ("The credibility
1056
of the evidence and whether it conflicts with other evidence or
1057
is controverted may not be considered in determining whether an
1058
instruction on a lesser-included offense should be given.").
37
A state trial court may not, under Beck v. Alabama, 447
U.S. 625 (1980), refuse a lesser-included offense instruction "if
the jury could rationally acquit on the capital crime and convict
for the noncapital crime." Cordova v. Lynaugh, 838 F.2d 764, 767
(5th Cir.), cert. denied, 486 U.S. 1061 (1988).
48
1059
As such, Dowthitt has not presented clear and convincing
1060
evidence to rebut the state habeas court's finding that "there
1061
was no evidence showing that [Dowthitt] was guilty [only] of the
1062
lesser offenses of rape and murder." Dowthitt thus fails to
1063
demonstrate that reasonable jurists would debate the propriety of
1064
not granting an instruction for lesser-included offenses. With
1065
no substantial showing on this claim, Dowthitt does not meet the
1066
requirement for a COA.
1067
F. District Court's Evidentiary Hearing
1068
Dowthitt asserts that the district court erred in providing
1069
only a limited evidentiary hearing on his actual innocence claim
1070
and in not holding a hearing on his other claims. He argues that
1071
the lack of factual development below was not due to his actions
1072
or lack thereof. Dowthitt faults particularly the state habeas
1073
court judge's actions. He states that the judge who presided
1074
over his state district court habeas proceedings, had recused
1075
himself from trial because one of the trial counsel was his own
1076
attorney in a divorce proceeding. The judge, however, did not
1077
recuse himself from the habeas proceedings, refused to conduct an
1078
evidentiary hearing on the habeas claims, and accepted verbatim
1079
the prosecution's proposed findings.
1080
Section 2254(e)(2) guides our determination of whether these
1081
requested evidentiary hearings were appropriate in this case.
1082
"If an applicant had failed to develop the factual basis of a
49
1083
claim in State court proceedings," the federal court may hold an
1084
evidentiary hearing if:
1085
(A) the claim relies on
1086
(i) a new rule of constitutional law, made
1087
retroactive to cases on collateral review by the
1088
Supreme Court, that was previously unavailable; or
1089
(ii) a factual predicate that could not have been
1090
previously discovered through the exercise of due
1091
diligence; and
1092
(B) the facts underlying the claim would be sufficient
1093
to establish by clear and convincing evidence that but
1094
for the constitutional error, no reasonable factfinder
1095
would have found the applicant guilty of the underlying
1096
offense.
1097
28 U.S.C. § 2254(e)(2).
1098
"Under the opening clause of § 2254(e)(2), a failure to
1099
develop the factual basis of a claim is not established unless
1100
there is a lack of diligence, or some greater fault, attributable
1101
to the prisoner or the prisoner's counsel." (Michael) Williams
1102
v. Taylor, 120 S. Ct. 1479, 1488 (2000). Furthermore, the
1103
(Michael) Williams Court associated the "failure to develop"
1104
standard with the cause inquiry for procedural default. See id.
1105
at 1494.
1106
Dowthitt argues that he exercised due diligence because he
1107
requested evidentiary hearings in state habeas proceedings, and
1108
those requests were denied. Thus, he asserts that his failure to
1109
develop his habeas claims are excused under § 2254(e)(2). We do
1110
not agree. Mere requests for evidentiary hearings will not
1111
suffice; the petitioner must be diligent in pursuing the factual
1112
development of his claim. As the state habeas court found,
50
1113
Dowthitt did not present affidavits from family members and did
1114
not show that they "could not be obtained absent an order for
1115
discovery or a hearing." In response, Dowthitt now argues that
1116
his "proffers" of what would be presented at a hearing
1117
constituted due diligence. We do not find his argument
1118
persuasive. Given that the family members were willing to
1119
testify at a hearing, Dowthitt could have easily obtained their
1120
affidavits. A reasonable person in Dowthitt's place would have
1121
at least done as much. Dowthitt's arguments that lack of funding
1122
prevented the development of his claims are also without merit.
1123
Obtaining affidavits from family members is not cost prohibitive.
1124
Thus, Dowthitt has not rebutted the state habeas finding in this
1125
regard.
1126
We find that Dowthitt has not made a substantial showing of
1127
meeting the requirements set forth in § 2254(e)(2) that would
1128
entitle him to a federal habeas evidentiary hearing. As such, he
is not entitled to a COA on this claim.38
1129
38
Even if Dowthitt had met the § 2254(e)(2) standard, he
would still have to clear another hurdle to obtain a COA. "After
the [§ 2254(e)] standard is met, the district court's denial is
reviewed for abuse of discretion." Clark v. Johnson, --- F.3d
----, 2000 WL 1285270, *9 (5th Cir. 2000). When the district
court has "`sufficient facts before it to make an informed
decision on the merits of [the habeas petitioner's] claim,' it
does not abuse its discretion in failing to conduct an
evidentiary hearing." Barrientes, 221 F.3d at 770; see also
United States v. Fishel, 747 F.2d 271, 273 (5th Cir. 1984)
("Where, as here, allegations contained in a habeas petition are
either contradicted by the record or supported by conclusory
factual assertions incapable of being tested in an evidentiary
hearing, no hearing is required."). Given that the district
51
1130
III. CONCLUSION
1131
For the foregoing reasons, we DENY Dowthitt's request for a
1132
COA on all of his claims and VACATE the stay of execution.
court analyzed whether Dowthitt received a "full and fair
hearing" in the state courts, found that Judge Alworth's conduct
was proper, and wrote a thorough opinion taking into account all
credible evidence, reasonable jurists would not disagree that the
district court acted well within its discretion.
52

Ask a Lawyer

 

 

FREE CASE REVIEW BY A LOCAL LAWYER!
|
|
\/
Personal Injury Law
Accidents
Dog Bite
Legal Malpractice
Medical Malpractice
Other Professional Malpractice
Libel & Slander
Product Liability
Slip & Fall
Torts
Workplace Injury
Wrongful Death
Auto Accidents
Motorcycle Accidents
Bankruptcy
Chapter 7
Chapter 11
Business/Corporate Law
Business Formation
Business Planning
Franchising
Tax Planning
Traffic/Transportation Law
Moving Violations
Routine Infractions
Lemon Law
Manufacturer Defects
Securities Law
Securities Litigation
Shareholder Disputes
Insider Trading
Foreign Investment
Wills & Estates

Wills
Trusts
Estate Planning
Family Law
Adoption
Child Abuse
Child Custody
Child Support
Divorce - Contested
Divorce - Uncontested
Juvenile Criminal Law
Premarital Agreements
Spousal Support
Labor/Employment Law
Wrongful Termination
Sexual Harassment
Age Discrimination
Workers Compensation
Real Estate/Property Law
Condemnation / Eminent Domain
Broker Litigation
Title Litigation
Landlord/Tenant
Buying/Selling/Leasing
Foreclosures
Residential Real Estate Litigation
Commercial Real Estate Litigation
Construction Litigation
Banking/Finance Law
Debtor/Creditor
Consumer Protection
Venture Capital
Constitutional Law
Discrimination
Police Misconduct
Sexual Harassment
Privacy Rights
Criminal Law
DUI / DWI / DOI
Assault & Battery
White Collar Crimes
Sex Crimes
Homocide Defense
Civil Law
Insurance Bad Faith
Civil Rights
Contracts
Estate Planning, Wills & Trusts
Litigation/Trials
Social Security
Worker's Compensation
Probate, Will & Trusts
Intellectual Property
Patents
Trademarks
Copyrights
Tax Law
IRS Disputes
Filing/Compliance
Tax Planning
Tax Power of Attorney
Health Care Law
Disability
Elder Law
Government/Specialty Law
Immigration
Education
Trade Law
Agricultural/Environmental
IRS Issues

 

Google
Search Rominger Legal


 


LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!

NOW - CASE LAW - All 50 States - Federal Courts - Try it for FREE


 


Get Legal News
Enter your Email


Preview

We now have full text legal news
drawn from all the major sources!!

ADD A SEARCH ENGINE TO YOUR PAGE!!!

TELL A FRIEND ABOUT ROMINGER LEGAL

Ask Your Legal Question Now.

Pennsylvania Lawyer Help Board

Find An Attorney

TERMS OF USE - DISCLAIMER - LINKING POLICIES

Created and Developed by
Rominger Legal
Copyright 1997 - 2010.

A Division of
ROMINGER, INC.