Hall v. Thaler

Filing 18

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 16 Memorandum and Recommendations, granting 12 MOTION for Summary Judgment. Petitioner's request for a Certificate of Appealability is DENIED. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CHRISTOPHER JOSEPH HALL,
Petitioner,
VS.
RICK THALER,
Respondent.

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§ CIVIL ACTION NO. C-12-93
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ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION TO
GRANT RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Respondent Thaler’s Motion for Summary Judgment
(D.E. 12). On August 31, 2012, United States Magistrate Judge Brian L. Owsley issued a
Memorandum and Recommendation (D.E. 16), recommending that Respondent’s Motion
for Summary Judgment be granted.

Petitioner filed his Objections (D.E. 17) on

September 17, 2012. Petitioner’s objections are discussed in the order in which they
were presented.
First, Petitioner objects to the conclusion that there was no evidence of a missing
written statement from witness, Tracy Watson, implicating a different person, Justin
Padgett, in the murder for which he was convicted. Petitioner claims that the statement
was exculpatory and was concealed by the prosecution in violation of his due process
rights. For this proposition, Petitioner relies on the testimony of Officer Baird, who
investigated the murder for the Aransas County Sheriff’s Department. Officer Baird

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testified that he believed that he took down Tracy Watson’s January 4, 2008 statement as
a written statement. Motion to Appeal Hearing, D.E. 11-14, p. 18.
Officer Baird’s testimony with respect to a written statement comports with
Watson’s January 4, 2008 written statement in the record. D.E. 11-7, pp. 1-4. The trial
court found that this statement was disclosed to the defense prior to trial. D.E. 11-7, p.
21. The statement does not incriminate Padgett.
Because Officer Baird testified to a recollection that Watson had told him that
“Dough Boy” (Padgett) might have been involved, Petitioner argues that there must be an
additional written statement that was withheld. However, Officer Baird did not testify
that there were two written statements from Watson.

He further testified that the

information about “Dough Boy” was provided in his investigation report and disclosed to
the defense. Petitioner has failed to demonstrate that any additional written statement
was taken and then concealed. Petitioner’s first objection is OVERRULED.
Second, Petitioner objects to the conclusion that the prosecution did not knowingly
offer perjured testimony. To prevail on his theory, Petitioner has to show: (1) that
Deputy Pikett did perjure himself; (2) that Deputy Pikett was a member of the
“prosecution team;” and (3) the tainted testimony was material to the conviction. See
generally, Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996).
With respect to whether the testimony constituted perjury, the trial court expressly
found that Petitioner failed to produce any evidence to contradict Deputy Pikett’s trial
testimony. D.E. 11-7, p. 24. Under AEDPA, the Court will not grant relief on the basis
of the resolution of such a fact question unless the finding was “based on an unreasonable
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determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. 2254(d)(2). Petitioner has failed to identify any evidence in
admissible form that contradicts the State court’s fact finding. He has further failed to
object to the Magistrate Judge’s deference to that finding. D.E. 16, p. 14.
While the State court and the Magistrate Judge both continued their analyses to
address an alternative basis for denial of habeas corpus relief, this Court holds that such
an exercise is not necessary. The Court OVERRULES as moot Petitioner’s second
objection, for failure to demonstrate that the State court’s fact finding of “no perjury” is
so contrary to the evidence as to warrant relief. The Court need not reach the issue of
whether Deputy Pikett was, in fact, a member of the “prosecutorial team.”
Third, Petitioner objects to the conclusion that Deputy Pikett’s allegedly perjured
testimony was not “material.” The Court OVERRULES the objection as moot. Without
a finding of exactly what testimony was false, there is no reliable way to determine
whether that specific testimony was material to the resulting conviction. Accordingly,
the Court rejects as moot the Magistrate Judge’s discussion of whether the admission of
Deputy Pikett’s testimony, generally, was “material.”
Fourth, with respect to ineffective assistance of counsel, Petitioner objects to the
Magistrate Judge’s statement of his complaint and resulting analysis. Without concern
for the identification of “Ace” and “Charles,” Petitioner maintains that his defense
counsel should have revealed to the jury that witness MW selected a random unknown
subject from a photo array and that witness JW selected Justin Padgett and another
random unknown subject from photo lineups.
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Regardless of which other individuals were identified as potential suspects by the
children, MW and JW, the process of revealing the other identifications involves crossexamining and impeaching children. Thus the critical analysis is, as the Magistrate Judge
set out, whether failing to cross-examine and impeach those children was a legitimate
trial strategy. Under the applicable test, which is quite deferential to the defense attorney,
the Court holds that the Magistrate Judge’s analysis and conclusions are appropriate. The
Petitioner’s fourth objection is OVERRULED.
Fifth, Petitioner objects to the Magistrate Judge’s conclusion that the failure of
counsel to show one child’s previous identification of Michael Underwood as the gunman
was a “strategic” decision. Petitioner states, “The evidence suggests otherwise.” D.E.
17, p. 5. However, Petitioner fails to identify a single shred of evidence that “suggests
otherwise.” Petitioner’s objection is OVERRULED.
Sixth, Petitioner objects to the rejection of his ineffective assistance of counsel
claim related to the investigation and cross-examination of Deputy Pikett. Petitioner
contends that reliance on counsel’s self-serving testimony is not sufficient to dispose of
this claim. The Court rejects this argument as contrary to the deferential review of
counsel’s conduct required for such complaints and as properly briefed by the Magistrate
Judge.
Petitioner claims that there was “a great multitude of Petitioner’s evidence” that
counsel could have discovered, and did not. Again, Petitioner fails to identify that
evidence. While he has appended materials to his Application, D.E. 1-1, he has failed to
show that those materials were in admissible form and actually offered and admitted in
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the State court proceedings. Absent such a demonstration and a legitimate claim that the
State court determination was an “unreasonable determination of the facts in light of the
evidence presented,” Petitioner’s objection is without force.
More importantly, however, Petitioner repeatedly asserts that his objection does
not go to the admissibility of Deputy Piketts’ testimony but that his counsel should have
demonstrated Deputy Pikett’s perjury, thus destroying his credibility. As set out above,
Petitioner has not shown that Deputy Pikett’s testimony was, in fact, false. Without proof
of perjury, his complaint that his counsel should have revealed that perjury is a nonstarter. Petitioner’s sixth objection is OVERRULED.
Seventh, Petitioner complains of the existence of multiple photographic line-ups
and the manner in which they were presented to the witnesses. However, he does not
articulate a cognizable objection. He does not show that the State court’s fact findings
against him were unreasonable based on the evidence presented. He does not show that
the State coerced anyone to identify him. Instead, the coercion argument goes to the
incorrect identification of an innocent man. It thus does not fall under Simmons v. United
States, 390 U.S. 377, 384 (1968). He does not prove that the methodology employed was
unconstitutional. Rather, his arguments are nothing more than the raising of an eyebrow
in suggestion that “something’s up.” Petitioner’s objection is based on nothing more than
speculation. His seventh objection is OVERRULED.
Eighth, Petitioner objects to the Magistrate Judge’s recommendation of a denial of
a Certificate of Appealability based, in part, on the recitation that Petitioner had not yet
filed a motion for a Certificate of Appealability. The Court notes that Petitioner did
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request a Certificate of Appealability with his original Application. D.E. 1. However,
the Court agrees with the Magistrate Judge that this action does not warrant a Certificate
of Appealability. Petitioner’s eighth objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Petitioner’s Objections, and all other relevant documents in the record, and having made
a de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Petitioner’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge as amended herein. Accordingly, Respondent’s
Motion for Summary Judgment (D.E. 12) is GRANTED and this action is DISMISSED
WITH PREJUDICE. Petitioner’s request for a Certificate of Appealability is DENIED.
ORDERED this 19th day of October, 2012.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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