Woodruff v. Stephens-Director TDCJ-CID
ORDER ACCEPTING 17 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Petitioner is DENIED a Certificate of Appealability. (Ordered by Chief Judge Barbara M.G. Lynn on 11/30/2017) (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional Institutions Division,
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
In this state habeas case under 28 U.S.C. § 2254, Brandon Woodruff (Petitioner) challenges
his conviction for capital murder in Cause No. 23,319 in Hunt County, Texas. On May 16, 2017,
the United States Magistrate Judge recommended that the petition for habeas corpus relief be denied
with prejudice without an evidentiary hearing. (See doc. 17.) Petitioner timely filed objections and
requested an evidentiary hearing. After reviewing the objections and conducting a de novo review
of those parts of the Findings and Conclusions to which objections have been made, I am of the
opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted
as the Findings and Conclusions of the Court.
While Petitioner was in the pretrial custody of the Hunt County Sheriff’s Department, all of
his telephone calls were routinely recorded. The prosecutor from the Hunt County Assistant District
Attorney’s office instructed jail staff to monitor his telephone calls, and jail staff, investigators and
the prosecutor listened to recordings of calls between Petitioner and his attorneys. The recordings
were ultimately provided to Petitioner, who moved to dismiss the indictment and sought to question
the prosecutor who had ordered the monitoring and to obtain production of the information learned
as a result. These issues were addressed during the course of several hearings. The court listened
to some of the recordings, ordered that all of the recordings be transcribed, recused the Hunt County
DA’s office, appointed a special prosecutor, and reviewed the State’s file in camera. It denied the
motion to dismiss and the requests to question the prosecutor and obtain the State’s file, but it
suppressed any evidence obtained from the conversations or that resulted from any investigation
stemming from information learned from the calls. After a trial, a jury convicted Petitioner of the
murder of his parents.
Petitioner’s habeas petition raised two grounds:
(1) The Texas courts erroneously refused to dismiss the indictment when the State
intentionally violated Petitioner’s attorney-client privilege; and
(2) Assuming for the sake of argument Petitioner must prove prejudice when the State
intentionally violated the attorney-client privilege, the Texas courts improperly permitted the
prosecutor to invoke the attorney work product privilege.
(See doc. 1 at 6, 9.) He now objects to the recommendation in the Findings, Conclusions and
Recommendation (FCR) that his petition be denied. Specifically, he objects to the conclusion that
he had the burden to show harm as a result of the violation of his attorney-client privilege, to the
failure to find that there was a substantial and injurious effect under Brecht v. Abrahamson, and to
the conclusion that the exception to the Brecht standard for a deliberate and especially egregious
error does not apply. (Doc. 18 at 6-8.) He also objects to the conclusions that he failed to exhaust
his due process claim and that an evidentiary hearing was not necessary. (Id. at 8, 11.)
Petitioner objects to the failure to apply the standard set out in Brecht v. Abrahamson, 507
U.S. 619 (1993), for determining prejudice or harm as a result of a Sixth Amendment violation, i.e.,
whether the constitutional error had a substantial and injurious effect. He claims that the FCR
erroneously assigned him the burden of proof even though the burden is not assigned to either party
under that standard and that the Magistrate Judge, in the Findings, Conclusions, and
Recommendation, failed to apply the exception to Brecht for deliberate and especially egregious
In Brecht, the Supreme Court held that the harmless error standard of Kotteakos v. United
States, 328 U.S. 750, 776 (1946), applied on federal habeas review of a state conviction.1 Brecht,
507 U.S. at 637-38. Under Kotteakos, habeas relief is granted only if the constitutional error “had
a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
at 637-38. To obtain federal habeas relief, petitioners have the burden of demonstrating harm under
Brecht. See Basso v. Thaler, 359 F. App’x 504, 509 (5th Cir. 2010).
In United States v. Morrison, 449 U.S. 361, 365 (1981), the Supreme Court addressed
whether the dismissal of an indictment was an appropriate remedy for a Sixth Amendment violation.
The Court held that “absent demonstrable prejudice or substantial threat thereof, dismissal of the
indictment is plainly inappropriate even though the violation may have been deliberate.” United
States v. Morrison, 449 U.S. 361, 365 (1981). Morrison placed on the petitioner the burden of
demonstrating prejudice or a substantial threat of it that warrants dismissal of the indictment. See
Morrison, 449 U.S. at 366 (the defendant “demonstrated no prejudice”); see also United States v.
Davis, 226 F.3d 346, 353 (5th Cir. 2000) (finding that an indictment cannot be dismissed for a Sixth
In contrast, on direct appeal from convictions, courts apply the harmless error standard of Chapman v. California, 386
U.S. 18, 24 (1967). Under Chapman, “before a federal constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable doubt.” Brecht, 507 U.S. at 630. The state has the burden
of proving that error is harmless under the Chapman standard. Id.
Amendment violation “without some showing of prejudice” and that there was no error in failing
to dismiss the indictment because the defendant did not show prejudice); United States v. Johnson,
68 F.3d 899, 902 (5th Cir. 1995) (“a defendant must show prejudice to his ability to receive a fair
trial before charges will be dismissed”); United States v. Laury, 49 F.3d 145, 150 (5th Cir. 1995)
(defendant could not demonstrate prejudice warranting dismissal of the indictment). Morrison did
not address harmless error; it examined the appropriate trial remedy for a Sixth Amendment
violation by the government. Rushen v. Spain, 464 U.S. 114, 128 n.7 (1983) (Brennan, J.,
As in Morrison, the issue in this case is whether the trial court erred in failing to dismiss the
indictment as the remedy for a Sixth Amendment violation. Under Morrison, Petitioner has the
burden to show that the trial court committed error in failing to dismiss the indictment as a remedy
for the Sixth Amendment violation by the State. If Petitioner fails to establish demonstrable or
substantial threat of prejudice from the Sixth Amendment violation, then he has not met his burden
to show error in failing to dismiss the indictment. If there was no error, then an analysis under
Brecht to determine whether the error was harmless is unnecessary.
Moreover, even if Brecht applied to the determination of whether the trial court should have
dismissed the indictment as the remedy for the Sixth Amendment violation, Petitioner would still
have the burden of demonstrating his entitlement to federal habeas relief, i.e., the burden of
demonstrating a substantial or injurious effect. See Basso, 359 F. App’x at 509 (quoting Brecht, 507
U.S. at 637) (“habeas petitioners ... are not entitled to habeas relief on trial error unless they can
establish that it resulted in ‘actual prejudice.’”). For the same reasons that he was not prejudiced by
the Sixth Amendment violation and was not entitled to a dismissal of the indictment, he did not show
under Brecht that he suffered a substantial or injurious effect from the violation.
Here, the trial court suppressed evidence that was obtained or derived from the recordings
as a remedy for the Sixth Amendment violation. The prosecutor who listened to the recordings and
took notes and her office were recused from the case, and a special prosecutor was appointed. The
office, including the prosecutor who listed to the recordings, was ordered not to communicate with
the special prosecutor about the case. Petitioner does not explain how he was prejudiced in light of
the suppression of any evidence obtained from the recordings, the recusal of the DA’s Office, the
appointment of a special prosecutor, and the order barring communication between the special
prosecutor and the DA’s Office about the case. He does not allege or suggest that the special
prosecutor and the DA’s Office communicated about the case in violation of the court order.
Petitioner has not shown that the special prosecutor was aware of any of the information that
the original prosecutor obtained from listening to the recordings, including discussions about defense
witnesses and their addresses and discussions about Petitioner’s potential testimony. He has not
shown that the discussions about defense witnesses were used by the State to develop the case
against him or to assist the State in preparing to meet his defense. He has not shown that he was
prejudiced under Morrison, such that the indictment should have been dismissed, or that he suffered
a substantial or injurious effect under Brecht.
His objection to the FCR’s failure to apply the exception to Brecht, which provides for
habeas relief without a Brecht harmless error analysis for a deliberate and especially egregious error,
also lacks merit. The dismissal of an indictment is not an appropriate remedy absent prejudice, even
if the Sixth Amendment violation was deliberate. Morrison, 449 U.S. at 365.
In summary, Brecht does not apply to this case. The FCR correctly held that Petitioner had
the burden of showing prejudice under Morrison, even for a deliberate violation of the Sixth
Amendment by the State. The FCR correctly concluded that he did not show that the state court
unreasonably determined that he did not demonstrate prejudice from the Sixth Amendment violation
sufficient to warrant dismissal of the indictment. Even under a Brecht analysis, however, he did not
prove he suffered a substantial or injurious effect from the State’s Sixth Amendment violation for
the same reasons that he did not prove prejudice under Morrison.
III. WORK PRODUCT
Petitioner objects on grounds that the state appellate court’s analysis of the work-product
evidentiary ruling was erroneous. He does not present a specific objection to the FCR regarding this
issue. However, as the FCR correctly held, the state court’s interpretation and application of the
state evidentiary rule is not reviewable on federal habeas. See Young v. Dretke, 356 F.3d 616, 628
(5th Cir. 2004); Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059,
1063 (5th Cir. 1995).
IV. DUE PROCESS
Petitioner contends that the FCR erred in determining that his due process claim regarding
the state court’s ruling on the state law work-product/crime-fraud issue was unexhausted. He claims
that he exhausted the due process claim in ground three of his petition for discretionary review
The federal habeas petition contends that the state court’s erroneous ruling on the state law
work-product/crime-fraud issue was so egregious that it violated his right to due process. As the
FCR explained, the PDR argued that the state court of appeals erred in its work-product/crime-fraud
analysis. (See doc. 18-1 at 3-6). It did not argue that the rulings of the appellate court and trial court
were so egregious that there was a due process violation under the Constitution. Because Petitioner
did not raise his due process claim in his PDR, the FCR correctly determined that his federal habeas
due process claim regarding work product and the crime-fraud exception is unexhausted. See
Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (federal habeas due process claim was not exhausted
where the petitioner “did not apprise the state court of his claim that the evidentiary ruling of which
he complained was not only a violation of state law, but denied him . . . due process”).
Additionally, as the FCR correctly concluded, any due process error regarding the workproduct claim was harmless in light of the suppression of evidence obtained from the recordings, the
appointment of a special prosecutor, and the order barring communication between the special
prosecutor and the DA’s Office about the case.
V. EVIDENTIARY HEARING
Petitioner contends that the FCR erroneously held that he is not entitled to an evidentiary
hearing regarding prejudice. He contends that an evidentiary hearing is necessary so that he may ask
the prosecutor what she learned from listening to the recordings and examine the notes she took
while listening to the recordings.
Under Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), even if the state court deprived
the petitioner the opportunity for an evidentiary hearing, review under 28 U.S.C. § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits, if on the
basis of the state court record the state court’s decision was not contrary to and did not involve an
unreasonable application of clearly established Federal law and was not based on an unreasonable
determination of the facts under § 2254(e)(2). Smith v. Cain, 708 F.3d 628, 635 (5th Cir. 2013).
Here, the FCR correctly concluded that Petitioner had not shown that the state court’s decision was
unreasonable. Habeas review is therefore limited to the state court record, and he is not entitled to
an evidentiary hearing.
In addition, an evidentiary hearing would not support Petitioner’s claims. The original
prosecutor’s knowledge of the content of the recordings and her notes from listening to the
recordings are not relevant to the prejudice analysis under Morrison to determine whether the
indictment should have been dismissed. The extent of what the prosecutor learned from the
recordings and the notes she took would not affect the prejudice analysis because the special
prosecutor and the prosecutor’s office were ordered not to communicate about the case. Petitioner
does not allege that they did communicate in violation of that order. The special prosecutor would
not have known what the prosecutor learned from the recordings when preparing for and trying the
case. The information Petitioner seeks to develop in an evidentiary hearing would not demonstrate
that he was prejudiced by the failure to dismiss the indictment in light of the recusal of the original
prosecutor’s office, the appointment of a special prosecutor, and the order that they not communicate
about the case. The FCR therefore correctly determined that he is not entitled to an evidentiary
hearing. See Robinson v. Johnson, 151 F.3d 256, 268-69 (5th Cir. 1998) (no abuse of discretion in
denying evidentiary hearing where there were no relevant factual disputes that required development
in order to assess the habeas claims); Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (to obtain
an evidentiary hearing, there must be a “factual dispute, [that,] if resolved in the petitioner’s favor,
would entitle [him] to relief,” but an evidentiary hearing is limited to the factual dispute and a
“fishing expedition” is not authorized).
A de novo review of those parts of the FCR to which objections have been made shows that
Petitioner has failed to demonstrate that the order is either clearly erroneous or is contrary to law.
See FED. R. CIV. PROC. 72(a). His objections are OVERRULED. The Findings and Conclusions
of the Magistrate Judge are correct, and they are accepted as the Findings and Conclusions of the
For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, the petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 is
DENIED with prejudice.
In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the
record in this case and the recommendation of the Magistrate Judge, Petitioner is DENIED a
Certificate of Appealability. The Court adopts and incorporates by reference the Magistrate Judge’s
Findings, Conclusions and Recommendation in support of its finding that Petitioner has failed to
show (1) that reasonable jurists would find this Court’s “assessment of the constitutional claims
debatable or wrong,” or (2) that reasonable jurists would find “it debatable whether the petition states
a valid claim of the denial of a constitutional right” and “debatable whether [this Court] was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
If the petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee or submit
a motion to proceed in forma pauperis and a properly signed certificate of inmate trust account.
SIGNED this 30th day of November, 2017.
BARBARA M. G. LYNN
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