Carpenter v. Davis, Director TDCJ-CID

Filing 160

Memorandum Opinion and Order...Evidentiary Hearing set for 9/11/2017 09:00 AM before Magistrate Judge Renee Harris Toliver., Prehearing Conference set for 8/31/2017 09:00 AM by Telephone before Magistrate Judge Renee Harris Toliver.) (Ordered by Magistrate Judge Renee Harris Toliver on 5/12/2017) (svc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DAVID LYNN CARPENTER,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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No. 3:02-CV-1145-B-BK

MEMORANDUM OPINION AND ORDER SETTING EVIDENTIARY HEARING
Pursuant to 28 U.S.C. § 636(b) and Special Order No. 3, Petitioner David Lynn
Carpenter’s section 2254 petition was automatically referred for findings, conclusions, and
recommendation.
On April 15, 2004, the Court granted an unopposed motion to stay these proceedings to
allow exhaustion of his claim regarding newly discovered evidence that the co-defendant had
confessed to the murder and exculpated Carpenter. On October 25, 2010, the Court stayed these
proceedings to allow the exhaustion of a claim that he was denied due process when the
prosecutor withheld exculpatory evidence at trial. On March 6, 2014, the Court stayed these
proceedings in light of Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct.
1911 (2013), to allow Carpenter to exhaust claims of ineffective assistance of trial counsel in the
state court that had not previously been presented due to the alleged ineffective assistance of
Carpenter’s state habeas counsel. Each time the case was stayed to permit exhaustion, the state
court refused to consider the claims, finding them to be procedurally barred by the state abuseof-the-writ rule. Because of the importance of determining whether certain claims come within
an exception to procedural bar, the Court now concludes that an evidentiary hearing is warranted.

I
Petitioner David Lynn Carpenter (“Carpenter”) was convicted of and sentenced to death
in 1999 for the murder for hire of Nelda Henin in Dallas, Texas, on August 28, 1991. He claims
that the prosecution failed to disclose evidence that state’s witness Mandee McBay Cloud was
suffering from severe mental problems and was under the influence of psychotropic medication
(i.e. Zoloft) during the trial in violation of Brady v. Maryland, 373 U.S. 83, 86-87 (1963). (3rd
Am. Pet. at 140-56.) The Court previously determined that this claim was potentially
meritorious in that evidence indicated that the witness’s psychiatric medication affected her
memory and that these memory problems existed during the time of the trial. (Order granting
stay, doc. 94, at 3 (citing Report and Recommendation at 5).) The evidence was also material in
that identity was a contested issue and the only other identifying witnesses were the coconspirator in the murder and an eyewitness who briefly saw someone she did not know driving
a car from the scene. Since the evidence had been withheld by the prosecution, the Court also
found good cause for Carpenter to have not raised it earlier. (Order granting stay at 2.)
Carpenter also presents claims of ineffective assistance of trial counsel that were not
presented to the state court in the original state collateral review due to the alleged ineffective
assistance of his state habeas counsel. These claims assert that trial counsel provided ineffective
assistance in failing to investigate and present (1) evidence that Matthew Tolbert actually
murdered the victim (3rd Am. Pet. at 46-55), (2) evidence that the eyewitness identification
procedure used to inculpate Carpenter was impermissibly suggestive (3rd Am. Pet. at 77-86), (3)
evidence that was mitigating and that Carpenter posed no future danger (3rd Am. Pet. at 171-76),
and (4) evidence that Mandee McBay Cloud was his common law wife and thus privileged from
testifying at the trial (3rd Am. Pet. at 92-106). The Court previously determined that because it

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was “not entirely clear” that Texas’ subsequent-application bar would prohibit consideration of
these claims, the Texas courts should make that determination in the first instance. (Order
Recommending Abatement at 5 (citing Wilder v. Cockrell, 274 F.3d 255, 262-63 (5th Cir.
2001).)
II
Texas law precludes successive habeas claims except in narrow circumstances. See TEX.
CODE CRIM. PROC. ANN. art. 11.071, § 5 (West 2015). This is a codification of the judicially
created Texas abuse-of-the-writ doctrine. See Barrientes v. Johnson, 221 F.3d 741, 759 n.10
(5th Cir. 2000). Under this state law, a habeas petitioner is procedurally barred from returning to
the Texas courts to exhaust his claims unless the petitioner presents a factual or legal basis for a
claim that was previously unavailable or shows that, but for a violation of the United States
Constitution, no rational juror would have found for the State. See id. at 758 n.9. It is an
independent and adequate state law ground to bar federal habeas review. Hughes v. Quarterman,
530 F.3d 336, 342 (5th Cir. 2008); Canales, 765 F.3d at 566. Therefore, unexhausted claims that
fail to meet these state law requirements are procedurally barred from review on the merits in
this Court unless an exception is shown. See Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir.
2001).
While these proceedings were stayed for exhaustion, the Texas courts found that
Carpenter’s claims are barred by the Texas abuse-of-the-writ rule and did not reach the merits of
his claims. As a result, this Court cannot reach the merits of any claim that Carpenter does not
prove comes within a recognized exception to procedural bar. See Sawyer v. Whitley, 505 U.S.
333, 338 (1992); Coleman v. Thompson, 501 U.S. 722, 729 (1991), modified by Martinez v.
Ryan, 566 U.S. at 9. However, for any claim that is shown to come within an exception, this

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Court must consider the claim de novo without deference to the state court adjudication. See
Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir.2000) (“Review is de novo when there has
been no clear adjudication on the merits.” (citing Nobles v. Johnson, 127 F.3d 409, 416 (5th
Cir.1997))); Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.1999) (“the AEDPA deference
scheme outlined in 28 U.S.C. § 2254(d) does not apply” to claims not adjudicated on the merits
by the state court); Woodfox v. Cain, 609 F.3d 774, 794 (5th Cir. 2010) (the AEDPA deferential
standard of review would not apply to a procedural decision of the state court). Because both the
claims Carpenter raises and the cause and prejudice asserted to excuse the procedural bar of such
claims depend on the resolution of disputed facts, an evidentiary hearing is warranted.
III
Even if the limitation to permitting an evidentiary hearing under § 2254(e)(2) applies to
the consideration of the merits of a habeas claim, the court nevertheless must make the threshold
procedural determination of whether the exception to the procedural bar applies and receive the
evidence necessary to make that determination. See House v. Bell, 547 U.S. 518, 537 (2006)
(noting that an evidentiary hearing was conducted by the district court on an exception to
procedural bar); Schlup v. Delo, 513 U.S. 298, 331 (1995) (discussing standards for the district
court to determine whether to hold an evidentiary hearing on exception); Dickens v. Ryan, 740
F.3d 1302, 1321 (9th Cir. Jan. 23, 2014) (en banc) (“Section 2254(e)(2), however, does not bar a
hearing before the district court to allow a petitioner to show ‘cause’ under Martinez.); Detrich v.
Ryan, 740 F.3d 1237, 1246 (9th Cir. Sept. 3, 2013) (en banc) (“district court should allow
discovery and hold an evidentiary hearing where appropriate to determine whether there was
‘cause’ under Martinez for the state-court procedural default and to determine, if the default is
excused, whether there has been trial-counsel IAC.”).

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In Martinez v. Ryan, the Supreme Court created a new exception to procedural bar for
claims of ineffective assistance of trial counsel.
Where, under state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.
132 S. Ct. at 1320. Because counsel was appointed to represent him in the state habeas
proceedings, Carpenter must show that his habeas counsel was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 (1984), in order to come within this new exception. See
Martinez, 132 S. Ct. at 1318. Further, Carpenter must also show “that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.” Id. at 1318-19 (citing Miller–El v. Cockrell, 537
U.S. 322 (2003) (describing standards for certificates of appealability to issue)). These standards
did not exist when Carpenter filed his original petition for federal habeas relief. Thus, the Court
concludes that Carpenter should be afforded an opportunity to prove that his claim falls within
the exception to procedural bar, necessitating an evidentiary hearing. See Patterson v. Johnson,
No. 3:99-CV-808-G, 2000 WL 1234661, at *2 (N.D. Tex. Aug. 31, 2000).
IV
Moreover, while this hearing is set for the purpose of examining the exceptions to
procedural bar, the parties should also come prepared to present evidence and argue the merits of
the underlying claim. The evidence required to show cause and prejudice to excuse the
procedural bar for the underlying Brady claim or that the claim of ineffective assistance of trial
counsel is substantial and, therefore, comes within the exception to procedural bar created in
Martinez, will likely be much of the same evidence needed to prove the merits of the underlying

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claim. To the extent that the same evidence may prove both the exception to procedural bar and
that the claim should be granted on its merits, the parties should come to the hearing fully
prepared to present that evidence and argue whether the limitation of § 2254(e)(2) would prevent
the Court from considering such evidence for that purpose as well, should it become appropriate.
See, e.g., Garcia v. Stephens, No. 3:06-CV-2185-M, 2014 WL 1494024, at *1 (N.D. Tex. Apr.
15, 2014); Braziel v. Stephens, No. 3:09-CV-1591-M, 2014 WL 1494081, at *2 (N.D. Tex. Apr.
15, 2014).
In other words, this hearing should be considered the parties’ one and only opportunity to
prove or disprove both the exceptions to procedural bar and the merits of each of these claims.
Given the age of the case and for reasons of judicial economy, the Court does not intend to
schedule a separate hearing on the merits of an underlying claim should it find that the claim
falls within the exception to procedural bar.
V
The following scheduling order will govern the evidentiary hearing in this case.
1. Hearing. A hearing is set for 9:00 a.m. on September 11, 2017, before United States
Magistrate Judge Renée Harris Toliver, at 1100 Commerce Street, Courtroom 1407, Dallas,
Texas, on (1) whether cause and prejudice exist to reach the merits of the claim that the
prosecution withheld material exculpatory information regarding the mental problems that
Mandee McBay Cloud had been suffering from and the medication that she was taking during
the trial in violation of Brady, and (2) whether Carpenter has set forth a substantial claim of
ineffective assistance of trial counsel, that was not properly presented to the state court because
of the ineffective assistance of state habeas counsel.

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2. Evidence. The Court expects to hear live testimony from the prosecutor or defense
counsel whose conduct is at issue but otherwise encourages the submission of written exhibits in
lieu of live testimony.
3. Disclosures. The parties are exempt from the requirement to make initial disclosures
under Federal Rule of Civil Procedure 26(a)(1)(A). The name and contact information for any
potential witness, however, shall be disclosed no later than June 15, 2017
4. Discovery. No formal discovery under the Federal Rules of Civil Procedure shall be
permitted, except as authorized, in advance, pursuant to Rule 6 of the Rules Governing Section
2254 Cases.
5. Expert Disclosures.1
a.

Petitioner shall provide expert disclosure as required by Federal Rule of
Civil Procedure 26(a)(2)(B) no later than June 15, 2017.

b.

Respondent shall provide expert disclosure as required by Federal Rule of
Civil Procedure 26(a)(2)(B) no later than June 30, 2017.

c.

Objections to the qualifications or competency of experts, sometimes
referred to as Daubert motions, must be made in a written motion filed no
later than July 17, 2017.

6. Petitioner’s Presence. Unless a waiver of his presence is duly executed and filed with
this Court prior to July 17, 2017, a writ of habeas corpus ad testificandum will issue for
Petitioner to attend the evidentiary hearing in person. All parties shall cooperate to ensure that
such a writ, if issued, is properly carried out.

1

The undersigned expresses no opinion regarding whether expert testimony will be admitted at
the hearing.
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7. Prehearing Statement. On or before August 1, 2017, the parties shall file a joint
prehearing statement, which shall:
a.

Identify counsel who will appear at the hearing;

b.

Identify any stipulated and uncontested facts;

c.

Identify the contested issues of fact and law;

d.

Identify the witnesses to be called at the hearing, including a brief
description of their anticipated testimony; and

e.

Identify the exhibits to be presented at the evidentiary hearing, noting any
objection by the party against whom the exhibit is to be offered.

8. Prehearing Conference. A prehearing conference is set for 9:00 a.m. on August 31,
2017, before U.S. Magistrate Judge Renée Harris Toliver, by telephone conference.
9. Extensions. Any party seeking to extend any deadline set out in this order must file a
motion setting forth good cause before the expiration of the deadline sought to be extended.
IT IS SO ORDERED this 12th day of May, 2017.

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