Yost v. Davis
Filing
56
MEMORANDUM OPINION AND ORDER. A certificate of appealability is DENIED.(Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 4)
United States District Court
Southern District of Texas
ENTERED
March 23, 2020
IN THE UNITED STATES DISTRICT COURTDavid J. Bradley, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
══════════
No. 3:17-cv-0070
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JAMES KEVIN YOST, TDCJ #01333468, PETITIONER,
v.
LORIE DAVIS, RESPONDENT.
══════════════════════════════════════════
MEMORANDUM OPINION AND ORDER
══════════════════════════════════════════
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE.
State inmate James Kevin Yost, who proceeds pro se, is incarcerated in the
Texas Department of Criminal Justice–Correctional Institutions Division
(“TDCJ”). Yost has filed a petition for a federal writ of habeas corpus (Dkt. 1, Dkt.
10) and a supporting memorandum (Dkt. 11), seeking relief from a state-court
conviction. Respondent Lorie Davis filed an answer (Dkt. 22) and a copy of the
state-court records (Dkt. 23, Dkt. 24). Yost has responded (Dkt. 36, Dkt. 41), and
his claims are ripe for decision. Having now considered the petition, briefing, all
matters of record, and the applicable legal authorities, the court determines that
the petition should be dismissed for the reasons that follow.
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I.
BACKGROUND
A.
Procedural Background
In 2005, Yost was convicted of murder by a jury in the 23rd District Court
for Brazoria County, Hon. Patrick Sebesta presiding, Case No. 46412. The jury
sentenced Yost to life imprisonment. See Dkt. 23-6, at 69-72.1 On April 24, 2007,
the Fourteenth Court of Appeals affirmed the judgment against him. Yost v. State,
222 S.W.3d 865 (Tex. App.–Hou. [14th Dist.] 2007, pet. dism’d). The Texas Court
of Criminal Appeals dismissed Yost’s petition for discretionary review on August
22, 2007. See id.
On July 12, 2016, Yost executed an application for state habeas relief (Dkt.
24-15, at 11-34) (WR-85,810-01). The trial court entered findings of fact and
conclusions of law recommending denial of relief (Dkt. 24-18, at 96-98; Dkt. 2419, at 1-3). On February 15, 2017, the Court of Criminal Appeals denied the
application without written order on the trial court’s findings without a hearing
(Dkt. 24-25).
Approximately two weeks later, on February 28, 2017, Yost executed a
petition for writ of habeas corpus in these federal proceedings (Dkt. 1).
B.
Factual Background
Yost was convicted of the murder of his 12-year-old stepdaughter, Anna
Throughout this memorandum opinion, the court’s citations to specific pages in
the record refer to the pagination of docket entries on the court’s electronic case-filing
(“ECF”) system.
1
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Farmer. The appellate court summarized some of the facts presented at trial as
follows:
At about 3:00 a.m. on December 29, 2003, police and emergency
medical personnel arrived at appellant’s residence in response to a 911
call for assistance with a sick child. At the home, they discovered
twelve-year-old Anna Farmer’s body on the floor by her bed. Her body
was cold, and rigor mortis had already begun to set in. Bridget Farmer,
Anna’s mother and appellant’s common-law wife, testified to the
events leading up to Anna’s death.
According to Bridget, appellant had a history of isolating and abusing
Anna. He kept Anna locked in her bedroom, and she was not allowed
to speak to her siblings. He even forbade Anna’s mother from
speaking to her. At appellant’s orders, Anna did not attend school, but
spent her days accompanying him to his work tending a booth at a flea
market or copying verses from the Bible. At times appellant would not
allow her to use the restroom, telling her to use her bedroom instead.
According to Bridget, appellant punished Anna by forcing her to take
cold showers or beating her. In one such episode, he paddled her with
a board so hard that Anna’s skin split and bled. In another instance,
he struck Anna’s head with such force that she had swelling and black
eyes for over a week. After both of these incidents, appellant told
Bridget that he had lost his temper because Anna “fought” him.
Bridget further testified that appellant would not allow her to seek
medical treatment for Anna after these beatings. Moreover, she
stated, appellant threatened to kill Anna if Bridget left him.
Bridget also supplied all of the testimony regarding events that
occurred on December 28 and the early hours of December 29, 2003.
According to Bridget, Anna accompanied appellant to his booth on the
morning of December 28. Sometime around midday, appellant called
Bridget and told her to come to the flea market so he could go to
another booth to pay rent. Bridget stayed with Anna while appellant
paid the rent, and when he returned, Bridget took Anna to the
restroom. Anna complained that her stomach hurt, and Bridget took
Anna home and sent her to her room. Bridget testified that a short
while later, she checked on Anna, and Anna said that she had thrown
up, but had cleaned it up. Bridget testified that she gave Anna some
juice and told her to lie down.
According to Bridget, appellant arrived home at approximately 5:00
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p.m., turned on the heater, and went into Anna’s room. Although the
air conditioning and heating unit muffled the sound, Bridget heard
three bumps against Anna’s wall, and heard Anna say, “Ouch.” Bridget
testified that a short time later, appellant came out of Anna’s room
looking scared and told Bridget that Anna was not breathing.
According to Bridget, “[appellant said] it wasn’t something he just did.
It must have been something he did the day before.”
Bridget said she attempted CPR, but was unsuccessful. She further
testified that appellant asked her to help him dispose of Anna’s body,
but she refused. According to Bridget, she told appellant she wanted
to call 911, but appellant did not allow her to do so, and told her that
if she did call, they would both go to prison. Bridget testified that
appellant then gathered some of his belongings, the title to his truck,
the telephones, the fax receiver, and the keys to both vehicles. He
instructed Bridget to wait until the next day before calling 911 to give
him a “head start,” and left at around 9:00 p.m. Several hours later,
Bridget found an old phone, called her aunt, and left a message for her
mother. After her mother returned her call, Bridget finally called 911.
It was then approximately 3:00 a.m. on December 29, 2003.
According to Bridget’s testimony, Anna had been dead approximately
eight hours by the time police and other emergency personnel arrived.
At appellant’s trial, Texas Ranger Richard Shing testified that
appellant was apprehended at a Dallas motel on January 1, 2004.
Evidence collected from the motel showed that appellant had
registered using a false name and address on December 30, 2003.
Shing testified that there was a “for sale” sign on appellant’s truck in
the motel parking lot.
Appellant was returned to Brazoria County and charged with
murder; Bridget was charged with two counts of injury to a child by
failing to provide Anna with proper nourishment and medical care. As
part of a plea agreement, Bridget pleaded guilty to both counts,
received ten years of probation for each count, and agreed to
relinquish her parental rights to her three remaining children. She
also agreed to testify against appellant.
Like Bridget, Anna’s younger half-sister P.W. testified that appellant
routinely isolated Anna from the rest of the family. According to P.W.,
appellant kept Anna locked in her bedroom while Bridget, P.W., and
appellant’s two small children slept in the living room of the trailer.
While the rest of the family ate together, appellant forced Anna to eat
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standing at the counter. She was allowed only five minutes to eat, and
when at home, she was usually allowed to eat only sardines, beets, and
kidney beans. P.W. further testified that sometimes when appellant
and Anna were in Anna’s bedroom, she heard banging sounds coming
from the room. P.W. related that she heard appellant tell Bridget
weekly or even daily that he would kill Anna someday. P.W. also
described how appellant forced Anna to copy Bible verses all day, and
testified that he monitored Anna on a surveillance camera installed in
her bedroom. According to P.W., appellant frequently referred to
Anna using various slurs, calling her a “wetback” and a “bitch.” P.W.
testified that appellant let Anna sit at the table at Christmas that year,
but because P.W. left to visit her biological father on December 26,
she could not testify to events after that time.
Medical examiner Stephen Pustilnik testified that, at the time of her
death, Anna was underweight, extremely malnourished, and
chronically dehydrated. He also testified at length regarding Anna’s
many internal and external injuries, bruises, and scars, and pointed
out the symptoms and effects of Anna’s prolonged starvation. He
opined that chronic child abuse was a contributing cause of her death.
Dr. Pustilnik identified large scars on Anna’s buttocks as the result of
repeated abusive paddling, and explained that head injuries Anna
received more than forty-eight hours before her death had made her
scalp soft and spongy from the accumulation of blood in the tissue. He
further testified that Anna had blood in her vaginal vault and in the
surrounding tissue, including hemorrhaging to her rectal vaginal
septum. According to Dr. Pustilnik, these injuries were caused by a
blunt object penetrating Anna’s vagina or rectum with such force that
tissues in these areas and in the area around Anna’s bladder
hemorrhaged. Dr. Pustilnik thought it likely that these injuries
occurred less than an hour before Anna’s death, but they could have
occurred as long as forty-eight hours before her death.
Finally, Dr. Pustilnik testified that Anna’s death was caused by
multiple blunt force trauma to her abdominal area. More specifically,
he testified that separate blows to her upper abdomen, delivered
during the same beating, lacerated her liver and ruptured her
duodenum. Although each of these injuries was independently
capable of causing death, neither caused death immediately.
According to Dr. Pustilnik, Anna did not die from either of these
injuries for several hours, and possibly as many as forty-eight hours.
During this time, a large amount of blood and fluid accumulated in
the soft tissues and cavity of Anna’s abdomen. These injuries and their
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effects could in turn produce stomach pain, nausea, and vomiting, and
eventually produced the shock, hypotension, and/or sepsis that was
the mechanism by which death occurred. According to Dr. Pustilnik,
there was a chance that Anna might have survived if she had received
immediate medical attention.
Yost, 222 S.W.3d at 868-70 (footnotes omitted).
Yost pleaded not guilty to the murder charge. The jury found him guilty and
sentenced him to life imprisonment. The appellate court affirmed his conviction,
rejecting Yost’s argument that the evidence at trial was insufficient to support his
conviction. Id. at 875-77.
In state habeas proceedings, Yost brought claims falling into three
categories:
claims regarding the prosecution’s use of DNA evidence; claims
regarding Dr. Pustilnik, the medical examiner who testified for the prosecution;
and claims that his counsel had been constitutionally ineffective (Dkt. 24-15, at 1134). The state habeas court found that, because approximately 11 years had elapsed
since Yost’s trial, his trial counsel did not have a clear recollection of the
proceedings and could not provide an affidavit responding to Yost’s habeas claims
(Dkt. 24-18, at 98). Jeri Yenne, the Brazoria County District Attorney, provided a
responsive affidavit (Dkt. 24-16, at 56-57).
Regarding the DNA evidence, Yost claimed that prosecutors in his case had
committed misconduct because the methodology for testing a “DNA mixture,” or
evidence including DNA from more than one person, had been updated since his
trial.
Yenne’s affidavit stated that she had received notification in 2015,
approximately ten years after Yost’s conviction, regarding changes in
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interpretation of DNA evidence (id. at 57). Yenne averred that she had notified
Yost and his trial counsel within a reasonable amount of time:
On August 21, 2015, I received notification of changes in interpreting
DNA results from the Texas Forensic Science Commission. It took
time to determine the affected cases because we had to review
hundreds of DNA reports from multiple agencies over a multiple[-]
year time frame. Notices were sent in those cases regarding these
changes. On June 1, 2016, notices regarding these changes were sent
to the Applicant and trial attorney Jimmy Phillips, Jr.
(id. (citation omitted)). The state habeas court recommended denial of relief on
Yost’s DNA claim, determining that he had “failed to show that differences in the
process of interpreting DNA results [were] exculpatory or would have caused a
different result at trial” and had failed to show prosecutorial misconduct (Dkt. 2419, at 2).
Regarding Dr. Pustilnik, Yost claimed that prosecutors had committed
misconduct when they failed to inform him that Dr. Pustilnik had been disciplined
by a state medical board in 1999 and 2003. Yenne’s responsive affidavit stated that
she had received information about complaints against Dr. Pustilnik on March 18,
2015—again, approximately ten years after Yost was convicted—and “d[id] not
consider [it] to be exculpatory” (Dkt. 24-16, at 56-57). She nevertheless provided
the information to Yost’s trial and appellate counsel, and later provided it directly
to Yost:
Out of an abundance of caution, I decided to notify the defendants and
their counsel of these complaints in the cases involving Dr. Pustilnik.
It took a period of time to determine who the affected defendants and
counsel were. We had to review autopsies occurring over a twelve[]year period of time. I then sent notices on these cases.
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I sent notices to the Applicant’s trial counsel Jimmy Phillips, Jr. and
appellate counsel Perry Stevens on June 4, 2015. Soon afterward, the
Applicant sent motions regarding Dr. Pustilnik to our office. On June
17, 2015, we forwarded these to trial counsel Jimmy Phillips, Jr. and
Brooks Bass; and appellate counsel Perry Stevens. Attorney Perry
Stevens returned our notices, stating that he no longer represented
the Applicant and would not accept the notices. The Applicant later
requested supplementary information regarding the material our
office received regarding Dr. Pustilnik. On August 5, 2015 we
coordinated with the prison to hand deliver a CD to him containing
this information.
(Id.) (citations omitted). The state habeas court determined that the 2015 evidence
did not demonstrate that Dr. Pustilnik’s testimony in Yost’s trial was inaccurate
and that Yost had not shown that the new information was “exculpatory or would
cause a different result at trial” (Dkt. 24-19, at 2).2 It also found “no evidence of
prosecutorial misconduct” because “the State did not receive the claims regarding
Dr. Pustilnik until March 18, 2015” and then “timely sent notices” to Yost and his
trial counsel (Dkt. 24-18, at 98).
Finally, Yost’s state habeas application raised multiple claims that his trial
counsel and appellate counsel had been constitutionally ineffective. For example,
Yost claimed that counsel had failed to discover and use evidence about the victim,
her sister, and other family members; about Yost’s employment records; and about
family members’ cell phone records. The habeas court found that most of Yost’s
The court further determined that Yost had failed to show that Dr. Pustilnik’s trial
testimony was inconsistent regarding “the time and cause of the death of the victim” and
“the viability of the victim’s survival with proper medical care” (Dkt. 24-18, at 97).
2
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ineffective-assistance-of-counsel claims were barred by laches.3 Eleven years had
elapsed since Yost’s trial, which the court found attributable to Yost (id.). The
court determined that the State was prejudiced by Yost’s trial counsel’s inability to
remember the “preparation and presentation of the case” (id.). The court therefore
recommended denial of all of Yost’s claims that his trial or appellate counsel had
been ineffective. See Dkt. 24-19, at 2 (concluding that Yost “failed to show
ineffective assistance of trial counsel,” “failed to show ineffective assistance of
appellate counsel,” and “is barred by the principle of laches in his claims that trial
counsel were ineffective”).
The Court of Criminal Appeals denied Yost’s habeas application on February
15, 2017. Yost executed his federal petition on February 28, 2017.
II.
LEGAL STANDARDS
A.
Pro Se Pleadings
Federal courts do not hold pro se habeas petitions “to the same stringent
and rigorous standards as . . . pleadings filed by lawyers.” Hernandez v. Thaler,
630 F.3d 420, 426 (5th Cir. 2011) (internal quotation marks and citation omitted).
“The filings of a federal habeas petitioner who is proceeding pro se are entitled to
The state habeas court also recommended denial of two of Yost’s claims on the
merits. Regarding Yost’s claim that his counsel was ineffective for failing to request a
lesser included offense of involuntary manslaughter or criminally negligent homicide, the
habeas court found that counsel was not ineffective “because there was no evidence
presented directly germane to those lesser offenses” (Dkt. 24-18, at 98). The court also
found no “cumulative error” from Yost’s multiple claims regarding counsel’s
ineffectiveness (Dkt. 24-19, at 2).
3
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the benefit of liberal construction.” Id.
B.
The Anti-Terrorism and Effective Death Penalty Act
This federal petition for habeas corpus relief is governed by the applicable
provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See
Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S.
320, 335-36 (1997). Under AEDPA, federal habeas relief based upon claims that
were adjudicated on the merits by the state courts cannot be granted unless the
state court’s decision (1) “was contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme Court of the
United States” or (2) “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);
Early v. Packer, 537 U.S. 3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th
Cir. 2012).
Federal courts look to the “last reasoned opinion” as the state court’s
“decision.” Ylst v. Nunnemaker, 510 U.S. 797, 803 (1991); see Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018); Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012).
“Where a state court’s decision is unaccompanied by an explanation,” and the
lower courts did not issue a reasoned opinion, “the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court to deny
relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011); see Johnson v. Williams,
568 U.S. 289, 293 (2013) (holding that there is a rebuttable presumption that the
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federal claim was adjudicated on the merits when the state court addresses some
claims, but not others, in its opinion).
Review under AEDPA is “highly deferential” to the state court’s decision.
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To merit relief under
AEDPA, a petitioner may not merely show legal error in the state court’s “decision.”
White v. Woodall, 517 U.S. 415, 419 (2014) (stating being “merely wrong” or in
“clear error” will not suffice federal relief under AEDPA). AEDPA review exists
only to “guard against extreme malfunctions in the state criminal justice systems.”
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (internal citation and quotation
marks omitted). “[F]ocus[ing] on what a state court knew and did,” Cullen v.
Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires inmates to “‘show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’” Woodall, 572 U.S. at
419-20 (quoting Richter, 562 U.S. at 103). “If this standard is difficult to meet, that
is because it was meant to be.” Richter, 562 U.S. at 102.
For questions of law or mixed questions of law and fact adjudicated on the
merits in state court, this court may grant habeas relief under 28 U.S.C.
§ 2254(d)(1) only if the state-court decision “was contrary to, or involved an
unreasonable application of, clearly established” Supreme Court precedent. See
Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005). Under the “contrary to”
clause, this court may afford habeas relief if the state court “reaches a legal
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conclusion in direct conflict with a prior decision of the Supreme Court or if it
reaches a different conclusion than the Supreme Court on materially
indistinguishable facts.” Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
(internal quotation marks and citations omitted). To constitute an “unreasonable
application” of clearly established federal law, the state court’s determination
“must be objectively unreasonable, not merely wrong; even clear error will not
suffice.” Woods, 135 S. Ct. at 1376 (internal citation and quotation marks omitted).
On factual issues, AEDPA precludes federal habeas relief unless the state
court’s adjudication of the merits was based on an “unreasonable determination of
the facts in light of the evidence presented in the state[-]court proceeding.” See 28
U.S.C. § 2254(d)(2); Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).
III.
ANALYSIS
Yost’s federal petition brings nine claims for relief based on the DNA
evidence at his trial, Dr. Pustilnik’s testimony, and his prior counsel’s alleged
ineffectiveness. See Dkt. 1, Dkt. 10, Dkt. 11. The respondent’s answer argues that
Yost’s claims regarding DNA evidence and Dr. Pustilnik do not warrant habeas
relief and that his remaining claims are time-barred (Dkt. 22).
A.
DNA Evidence (Claim 2)
Yost argues that his due-process rights were violated because the
prosecution introduced DNA evidence which has now been “proven unreliable” by
updated testing methods (Dkt. 10, at 6). He also argues that the state habeas court
unreasonably determined that the updated information was not exculpatory (id.).
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The Due Process Clause requires the prosecution to disclose material
evidence that is favorable to the defense. Brady v. Maryland, 373 U.S. 83 (1963).
A successful Brady claim requires a showing that “the prosecution suppressed
evidence,” that the suppressed evidence was “favorable to the defense” and
“material to either guilt or punishment,” and that the evidence “was not
discoverable using due diligence.” Prystash v. Davis, 854 F.3d 830, 837 (5th Cir.
2017).
Prosecutors at Yost’s trial introduced “mixed DNA” samples from his
residence, where the victim had also lived (Dkt. 11, at 21). Yost states that the
samples included blood stains on the victim’s shirt, which prosecutors argued
“contained DNA of both Yost and the victim” and therefore “connected Yost to the
crime, in conjunction with other evidence” (id.). He argues that the analysis
showed only that the victim “could not be excluded as a contributor” to the blood
stain (id. at 22), that no blood was found on the victim when paramedics arrived
on the scene (id. at 21), and that he had “no cuts or blood on him when arrested
[three] days later” (id.).
Long after his conviction was final, the Texas Forensic Science Commission
updated its testing methods. According to Yost, the commission reported that
“sample calculations/testing protocols” for mixed DNA samples from more than
one person, such as those used in his case, had been “called into question” (Dkt.
10, at 6).
He refers to a posting at his TDCJ unit in 2016, which stated that “a
common statistical method they used for calculating statistics for mixed DNA
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samples may not have always taken into account certain scientific limitations”
(Dkt. 11, at 22 (internal quotation marks omitted)). He therefore argues that the
DNA evidence in his case “provided extremely low to moderate probability
statistics” (Dkt. 10, at 6).4
In May 2016, after Yost became aware of the updated testing methods, he
sought recalculation of the DNA evidence in his case (Dkt. 11, at 22). He received
a letter from Yenne dated June 1, 2016, confirming that the evidence in his case
included a DNA mixture and providing instructions on how to request a
recalculation. See Dkt. 24-18, at 4-5. Yost states that this information “further
call[ed] into question the DNA statistical calculation of mixed samples . . . from
1999 until August 2015” (Dkt. 11, at 22). He claims that “the questionable DNA
evidence” in his case was presented “in conjunction with other questionable
evidence” (id. at 23). He does not, however, state specifically how the testing
methods actually affected the DNA evidence in his case.
The state habeas court concluded that Yost had failed to show that the
evidence regarding updated DNA testing was exculpatory or that he had been
prejudiced by the DNA testing methods in his case (Dkt. 24-19, at 2). To warrant
federal habeas relief, Yost must show that this determination by the state court was
See id. (“DNA results respective to victim, Anna Farmer[,] showed no probability
statistic of randomly selecting an unre[la]ted person who could be contributor to the
blood samples; comparison with Yost’s DNA provided extremely low to moderate
probability statistics. The Texas Forensic Science Commission later reported that mixed
DNA sample calculations/testing protocols were called into question”).
4
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“contrary to, or involved an unreasonable application of, clearly established”
Supreme Court precedent, or was an “unreasonable determination of the facts in
light of the evidence presented in the state[-]court proceeding.” See 28 U.S.C.
§ 2254(d). Yost’s argument that the DNA evidence in his case was “questionable”
or that Texas officials “may not have always taken into account certain scientific
limitations” (Dkt. 11, at 22-23) is insufficient to show that he was prejudiced. See
Prystash, 854 F.3d at 837. He therefore fails to demonstrate that the state court’s
determination was unreasonable under § 2254(d)’s deferential standards.5
B.
Dr. Pustilnik (Claim 8)
Yost argues that his due-process rights were violated at trial when the
prosecutor withheld “exculpatory evidence about prior malfeasance” by Dr.
Additionally, Yost appears to argue that habeas relief is appropriate because, if the
DNA evidence against him were disregarded, the remaining evidence would be
insufficient to support his conviction. See Dkt. 41, at 16-18. When reviewing a sufficiencyof-the-evidence claim, a court affirms a jury’s conviction if, considering all of the evidence
in a light most favorable to the prosecution, a rational trier of fact could have returned a
verdict unfavorable to the defendant. Jackson v. Va., 443 U.S. 307 (1979); see Cary v.
State, 507 S.W.3d 761, 765 (Tex. Crim. App. 2016) (applying federal Jackson standard).
On federal habeas review, the stringent Jackson standard merges with AEDPA and
creates a high barrier to federal habeas relief. See Coleman v. Jackson, 566 U.S. 650, 651
(2012); Perez v. Cain, 529 F.3d 588, 594 (5th Cir. 2008).
5
Yost raised the sufficiency-of-the-evidence issue on direct appeal, and the
appellate court overruled the issue. The court relied on evidence unrelated to DNA
evidence in reaching its conclusion, including the testimony of Yost’s family members.
Yost, 222 S.W.3d at 875-76 (applying legal standard subsequently overruled by Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“the Jackson v. Virginia legalsufficiency standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt”). Yost’s argument
in these proceedings that the DNA evidence was “questionable” does not suffice to show
that the state court’s determination was contrary to Jackson or was otherwise an
unreasonable application of clearly established federal law. See 28 U.S.C. § 2254.
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Pustilnik, the medical examiner who testified for the prosecution (Dkt. 11, at 45).
To succeed on his claim, Yost must show that the prosecution suppressed evidence,
that the suppressed evidence was material and favorable to the defense, and that
the evidence was not discoverable using due diligence. See Prystash, 854 F.3d at
837. The prosecutor’s duty to disclose “extends to all evidence known not just to
the prosecutors, but ‘to the others acting on the government’s behalf in the case,
including the police.’” Floyd v. Vannoy, 894 F.3d 143, 161-62 (5th Cir.), cert.
denied, 139 S. Ct. 573 (2018) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).
Impeachment evidence “is favorable Brady evidence.” Id. at 163; see U.S. v.
Bagley, 473 U.S. 667 (1985).
Yost’s claim relies on discipline imposed on Dr. Pustilnik by the Texas
Medical Board for erroneous autopsy findings. He argues that the prosecution
committed misconduct at his 2005 trial when it concealed the prior discipline. The
state habeas court, relying on Yenne’s affidavit, found no prosecutorial misconduct
because the prosecution received the information in 2015, years after Yost’s trial,
and timely notified Yost and his counsel (Dkt. 24-18, at 98). It also determined
that Yost had not demonstrated that Dr. Pustilnik’s testimony in his case was
inaccurate (Dkt. 24-18, at 97-98).
Yost challenges the state habeas court’s determination that prosecutors had
not learned of the purported misconduct until years after his trial, arguing that
knowledge “should be imputed” to the Brazoria County District Attorney’s office
because other state entities had the information (Dkt. 41, at 19-20). He argues that
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the Texas Medical Board and the University of Texas Medical Branch (“UTMB”),
who purportedly had the information, “functioned as an investigative member of
the prosecution team” (id. at 20). He also argues that Yenne’s 2016 affidavit in
state habeas proceedings obscured facts regarding dates and contents of
disclosures regarding Dr. Pustilnik and that, although Yost was pro se during state
habeas proceedings, Yenne “falsely implied that Yost was represented by counsel”
by directing her 2015 disclosure to his previous counsel (Dkt. 10, at 11).
Yost fails to demonstrate that the prosecution “suppressed” evidence in his
case, as required for a Brady claim, because he cites no authority to support his
argument that the institutional knowledge of other state entities should be
imputed to the prosecutors at his trial. First, Yost’s evidence regarding the other
agencies’ institutional knowledge pertains to time periods long after his trial. See,
e.g., Dkt. 41, at 21 (citing to UTMB reports from 2012 and 2013); id. at 23-24 (citing
to news articles from 2018).
Additionally, case authorities hold only that
prosecutors must disclose evidence known to “others acting on the government’s
behalf in the case,” typically police officers. Floyd, 894 F.3d at 161-62.6 Yost
presents no evidence that the agencies he identifies were acting on the
prosecution’s behalf in his case. To the contrary, the evidence in the record shows,
and the state habeas court found, that the prosecutors in his case did not receive
See Pitonyak v. Stephens, 732 F.3d 525, 533 (5th Cir. 2013) (holding in federal
habeas proceedings that a state court’s determination that Brady protections did not
extend to a “mental health professional” who was “not involved in investigating or
preparing the case” was “not unreasonable”).
6
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the information regarding Dr. Pustilnik until 2015. Moreover, Yost presents no
specific facts or argument to refute the state habeas court’s determination that he
had failed to show that Dr. Pustilnik’s testimony at his trial was inaccurate. The
state habeas court’s denial of Yost’s claim was not contrary to, or an unreasonable
application of, Brady, Kyles, or other clearly established law. His claim therefore
fails under § 2254(d).
C.
Statute of Limitations (Claims 1, 3-7, and 9)
Respondent argues that Claims 1, 3, 4, 5, 6, 7, and 9 are time-barred by more
than eight years.7 In Claim 1, Yost asserts that Dr. Pustilnik’s testimony violated
his rights under the Confrontation Clause and the Due Process Clause because Dr.
Pustilnik “subtly inserted [a] supplemental report into [the] original autopsy
report a few days before trial, then testified based on the supplemental report, that
[the] victim’s fatal injuries occurred less than 48 hours before [her] death” (Dkt.
10, at 6). In Claim 9, he claims that his due-process rights were violated at trial
because the trial court and his counsel denied and “evaded” his requests for an
expert and because two judges denied his motions for recusal (id. at 12). Yost’s
remaining claims assert that his trial and appellate counsel were constitutionally
ineffective.
Under 28 U.S.C. § 2244(d)(1), a one-year statute of limitations applies to
Yost’s petition. This one-year period runs from the “latest of” four accrual dates:
See In re Young, 789 F.3d 518, 528 n. 3 (5th Cir. 2015) (“[t]hough we do not decide
that issue today, it appears that applying the statute of limitations to each claim [rather
than to an entire petition] is consistent with AEDPA and the precedent of other circuits”).
7
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(A)
the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B)
the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D)
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2244(d)(1).
Yost’s conviction was affirmed on April 24, 2007. After the Texas Court of
Criminal Appeals granted him an extension of time to seek discretionary review,
his time to file his petition expired on Monday, July 23, 2007. See Dkt. 23-8.
Under Section 2244(d)(1)(A), “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review”
therefore was July 23, 2007, and the one-year limitations period expired on
Wednesday, July 23, 2008. Yost’s federal petition, executed on February 28, 2017,
is more than eight years late and time-barred unless a later accrual date applies.
The time period during which a “properly filed application for State postconviction or other collateral review” is pending is not counted toward the
limitation period.
28 U.S.C.
§ 2244(d)(2).
However, Yost’s state habeas
application was executed on July 12, 2016, after his limitations period under the
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AEDPA had already expired. Statutory tolling therefore does not render the
current federal petition timely. See Richards v. Thaler, 710 F.3d 573, 576 (5th Cir.
2013).
Yost does not assert that a state-created impediment to his habeas
application was recently removed, see § 2244(d)(1)(B), or a constitutional right
newly recognized and made retroactive by the Supreme Court, see § 2244(d)(1)(C).
However, he argues that his petition is timely under § 2244(d)(1)(D) because he
discovered the “factual predicate” for his claims on August 5, 2015, when the
Brazoria County District Attorney provided him with complaints in other criminal
cases against Dr. Pustilnik (Dkt. 1, at 13; Dkt. 10, at 14).
He maintains that all
claims in his petition are predicated on the allegedly suppressed evidence
regarding Dr. Pustilnik.8
Yost’s assertions that all of his claims are predicated on the evidence
regarding Dr. Pustilnik are cursory and unsupported by the record. Moreover, as
held above, his Brady claim regarding Dr. Pustilnik lacks merit because he has not
shown that prosecutors suppressed the evidence in question or that the evidence
was material.
Therefore, to the extent Yost argues that other claims were
See Dkt. 11, at 13 (arguing that his ineffective-assistance-of-counsel claims are
“inter-connected to the recently discovered [Brady] claims, due to the conspiracy
between trial counsel, the district attorney, and the trial and pre-trial judges, to deny Yost
the basic tools of defense including experts, discovery, and investigation”); id. at 27
(arguing that the appellate court relied “heavily” on Pustilnik when affirming his
conviction); Dkt. 41, at 7 (arguing that the impeachment evidence regarding Dr. Pustilnik
has an “inextricable relationship and connection” with “all of his other habeas claims and
his Brady claims” and that “most every other piece of other evidence offered against Yost
. . . was vitally inter-dependent on the testimony” of Dr. Pustilnik).
8
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unavailable until he received the evidence about Dr. Pustilnik, he fails to
sufficiently establish a “factual predicate” for those claims under § 2254(d)(1)(D).
Finally, Yost argues that he is entitled to equitable tolling of the limitations
period.
Equitable tolling is available in rare and exceptional circumstances.
Mathis v. Thaler, 616 F.3d 461, 475 (5th Cir. 2010). It requires a showing that a
petitioner has been pursuing his rights diligently and that “some extraordinary
circumstance” prevented the timely filing of his habeas petition. See Holland v.
Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005).
In support of his request for equitable tolling, Yost again relies on the 2015
disclosure of Dr. Pustilnik’s past discipline. As held above, he has not sufficiently
demonstrated that his other claims were so connected to the impeachment
information regarding Dr. Pustilnik that he was prevented from filing a timely
federal petition to pursue relief on his ineffective-assistance-of-counsel claims. See
Holland, 560 U.S. at 649. Yost therefore makes no showing that equitable tolling
is warranted in his case.
Yost’s remaining claims therefore must be dismissed as untimely filed.
IV.
CERTIFICATE OF APPEALABILITY
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate
of appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases
requires a district court to issue or deny a certificate of appealability when entering
a final order that is adverse to the petitioner.
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A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),
which requires a petitioner to demonstrate “‘that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.’”
Tennard, 542 U.S. at 282 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Under the controlling standard, a petitioner must show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal
citation and quotation marks omitted).
Where denial of relief is based on
procedural grounds, the petitioner must show not only that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right,” but also that they “would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000). After careful review of the record and the applicable law, the court
concludes that reasonable jurists would not find its assessment of the claims
debatable or wrong. Because the petitioner does not allege facts showing that his
claims could be resolved in a different manner, a certificate of appealability will
not issue in this case.
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V.
CONCLUSION
For the reasons stated above the court ORDERS that:
1.
The petition for a writ of habeas corpus filed by James Kevin Yost is
DISMISSED.
2.
A certificate of appealability is DENIED.
The Clerk will provide a copy of this order to the parties.
23rd
Signed on Galveston Island this ____ day of
March
, 2020.
____________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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