Pruett v. Choate et al

Filing 19

MEMORANDUM AND ORDER granting 15 Opposed MOTION to Dismiss 1 Complaint. The complaint (D.E. 1 ) is DISMISSED WITH PREJUDICE. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

,

United States District Court
Southern District of Texas

ENTERED
September 25, 2017

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROBERT LYNN PRUETT,
Plaintiff,

v.
JACK K. CHOATE, et al.,
Defendants.

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David J. Bradley, Clerk

H-17-CV-2418

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MEMORANDUM AND ORDER
Plaintiff Robert Lynn Pruett is a Texas death row inmate. He is scheduled for execution
on October 12, 2017.

Defendant Jack Choate is the Executive Director of the Special

Prosecution Unit that prosecuted Pruett for capital murder. Defendant Lisa Harmon Baylor is a
forensic scientist with the Texas Department of Public Safety. The other defendants are officials
of the Texas Department of Criminal Justice.
Pruett filed a civil rights complaint under 42 U.S.C. § 1983, alleging that he was denied
due process in his proceedings to obtain postconviction DNA testing. D.E. 1

He seeks

injunctive relief regarding DNA testing and a stay of execution. Defendants filed a motion to
dismiss. D.E. 15

For the reasons stated below, the defendants' motion is granted, and the

complaint is dismissed with prejudice.

I. Background
The facts of the underlying capital murder case are set out in detail in the Fifth Circuit's
opinion affirming this Court's denial of Pruett's petition for a writ of habeas corpus. See Pruett

v. Thaler, 455 Fed. App'x 478, 479-81 (5th Cir. 2011). The facts of the crime are repeated here
only insofar as they are relevant to the current proceeding.

Pruett was convicted of capital murder and sentenced to death for the murder of Daniel
Nagle, a Corrections Officer employed by the Texas Department of Criminal Justice. Pruett was
serving a 99 year prison sentence t'Or murder at the time of the Nagle murder.
Evidence presented at trial showed that Nagle had written a disciplinary case against
Pruett shortly before the murder. Nagle was stabbed eight times with a shank made of a metal
rod sharpened at one end and wrapped in tape at the other end. He died from a heart attack
suffered during the stabbing attack. The shank and a tom disciplinary report against Pruett were
found at the scene of the murder.
Pruett was scheduled for execution in 2015. On the day of his scheduled execution, he
moved in state court for DNA testing of evidence. The trial court granted the motion and tests
were conducted. The trial court then held an evidentiary hearing and denied relief. The Texas
Court of Criminal Appeals ("TCCA") summarized the relevant facts concerning the
postconviction hearing.
According to the report issued by DPS forensic scientist, Lisa
Harmon Baylor, testing on [Pruettl's pants and shirt revealed
profiles that were consistent with [Pruett] and excluded the victim.
Testing on the victim's shirt and pants and blood found in the
multipurpose room revealed profiles that were consistent with the
victim and excluded [Pruett]. These results were consistent with
the results obtained after testing the items before [Pruett]'s trial. No
DNA profile was obtained from testing on the masking tape
wrapped around the handle of the metal rod or from testing on a
piece of blue plastic removed from the metal rod. A swabbing from
the metal rod revealed an unknown female profile. Testing of the
rod before trial revealed no such profile.
At the August 13, 2015, hearing concerning this testing, the court
first stated that a prior motion for DNA had been granted in 20l3,
and the results had been inconclusive. The court also noted that the
State had made all of the evidence in the case available for several
years, but [Pruett] had not requested testing of the metal rod and
tape in the 2013 motion. The court then noted that [Pruett]'s
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counsel sought information about testing the rod and tape nearly
two weeks before [Pruett]'s scheduled execution date, and
information was provided the next day regarding whom to contact
to obtain testing. However, counsel waited nearly ten days to
contact the person identified, and then contacted that person on the
Sunday preceding the Tuesday execution date. Finally, the court
noted that [Pruett] had requested funding for an expert, which the
court denied. But the court added, "If I heard additional evidence
that warranted the granting of $6,000-or somewhere around that
amount-to the defense, I would consider it after I heard the
evidence today." The court thereafter heard testimony from two
witnesses called by the State. The defense did not present any
witnesses.
Baylor testified that she was the analyst who conducted the original
pretrial DNA testing and testified at [Pruett],s trial. Baylor testified
consistently with the report she issued on her testing, which
included the results she obtained on the items listed in the May 8
order. Baylor testified that, despite her effort, she was unable to
obtain a ONA profile from the masking tape. She testified that she
had very little success obtaining much DNA from tape samples in
the past because of the "surface area" and how the tape had been
handled. Additionally in this case, the tape was covered in black
powder because it had been processed for potential fingerprints
right after the murder. Baylor explained that, at the time of this
offense, DNA testing was new, and the investigators had to choose
between DNA testing, which might destroy print evidence, and
testing the tape for prints. Here, they chose to test the tape for
prints.
Baylor testified that she processed the metal rod in 2000, but was
unable to obtain a DNA sample. However, when she re-swabbed
and tested the rod in 2015, she obtained a DNA profile consistent
with that of an unknown female. Baylor stated that, upon finding
that result, she conducted the proper checks to ensure that the
findings had not been contaminated within the laboratory or during
her analysis. She found no contamination. She also re-tested the
sample preserved from the testing conducted before trial, and she
again obtained no DNA profile. Baylor testified that, because of
the disparate results obtained from the concurrent testing of the old
and new samples, she was certain that the female profile was not
present on the metal rod when she first tested it in 2000. She
opined that the profile must have come from someone who handled
the evidence after it was tested in 2000. She also noted that,
especially ten to fifteen years ago, evidence was regularly handled
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by any number of people in the courtroom during trial.
The second witness to testify at the hearing was William Lazenby.
Lazenby testified that he had been employed as the bailiff/security
officer for Bee County and the Bee County courts since 2009. His
prior employment included working for the Texas Department of
Criminal Justice. He was an investigator on the McConnell Unit
when this crime occurred and was part of the investigative team in
this case.
Lazenby testified that some time in the two years before the August
2015 hearing, he was contacted "about some attorneys or, maybe,
employees of attorneys and a film crew wanting to look at the
evidence in [[Pruett]'s] case [.]" He stated that a male and a female
with the British Broadcasting Corporation (BBC) and some female
attorneys wanted to look at some evidence related to [PruettTs
case. He noted that, in at least one instance, he saw the evidence,
including the metal rod, laid out on the table in front of these four
individuals, and no one was wearing gloves. The only other time he
saw the metal rod after that was when it was secured and sent for
DNA testing by people at the district clerk's office who wore
gloves as they handled the evidence.
Finally, the State offered a video from television station KWTX
into evidence. The video shows a woman with no gloves on
handling the metal rod. The trial court concluded from all of the
evidence that there was nothing on the metal rod that was
inculpatory or exculpatory, nothing on the tape at all, and nothing
on the additional items that was inculpatory or exculpatory. The
court found that, although an unknown sample was found on the
metal rod, there was no such sample present when the rod was
originally tested, and any evidence that previously existed on the
rod had since been contaminated.
In its written findings and conclusions, the trial court first set out
the background of the case, which we paraphrase below:
1. The State made all of the evidence available for
DNA testing for over fifteen years before [PruettTs
most recent request. In fact, [Pruett] made a request
for DNA testing in 2013, and the results were
inconclusive.

2. [Pruett] did not include in his 2013 motion for
DNA testing a request that the metal rod and the
tape wrapped around it be tested.
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3. [Pruett] asserted that testing should be done now
because newer DNA testing techniques exist.
However, those same testing techniques existed in
2013.
4. [Pruett] began seeking information regarding
DNA testing of the metal rod after business hours
on Thursday, April 16, 2015. Although the State
responded with the necessary information the next
day, [Pruett] waited nearly ten days before
contacting the laboratory, and then he contacted the
laboratory by email on the Sunday two days before
the scheduled execution when the laboratory was
closed.
5. [Pruett]'s counsel failed to file an Affidavit of
Good Cause for failing to comply with the Court of
Criminal Appeals "Seven Day Rule" when they
requested a stay of execution on the day of the
execution.
6. Upon reviewing [Pruett]'s motion for DNA
testing, and in deciding to allow testing, the trial
court stated that it "ha[d] no doubt the request for
the proposed DNA testing was made to delay the
execution of sentence." However, the court was not
willing "to punish [[Pruett]] for his attorney's
dilatory tactics." Thus, the court granted the testing.
7. After the laboratory tested the requested items
and more, the court held a hearing on August 13,
2015, at which the State called two witnesses:
(1) Lisa Baylor, a DPS employee and
DNA expert, testified that she
cond ucted the current testing, and
she conducted the DNA testing
performed at the time of trial. She
also testified at [Pruett]'s trial. Baylor
unequivocally testified that the metal
rod contained no DNA profile in
2000 when she originally tested it. In
fact, she re-tested the original sample
during this round of testing and again
found no DNA profile. However,
when the metal rod was tested in
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2015, it contained an unknown
female profile. With regard to the
tape, Baylor testified that no DNA
profile was found on the tape that
had been wrapped around the rod.
Baylor also testified that recently
published problems with the FBI
database and related calculations
were addressed during testing. Other
DNA samples from the victim and
[Pruett] were identified during
testing, but were found not to be
relevant to the court's findings and
conclusions.
(2) William Lazenby was the
supervisor of the investigative team
that worked the Nagle murder.
Lazenby testified that, in 2009, he
became a bailiff for the courts in Bee
County. He further testified that,
sometime in the two years before the
August 2016 hearing, [Pruett] and
his attorneys cooperated with the
British Broadcasting Corporation
(BBC) while they prepared a story on
[Pruett]. During that preparation,
Lazenby observed the television
crew and members of counsel's staff
handling the evidence, including the
metal rod, and none of them were
wearing gloves. Several females
were in the group. Lazenby
subsequently observed members of
the district clerk's office prepare the
items for transfer to DPS, but those
individuals were wearing gloves.
8. [Pruett] presented no witnesses at the hearing.
Based upon the evidence presented at the hearing, the trial court
then made the following findings of fact, which are paraphrased in
pertinent part as follows:
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1. As tested in 2015, the tape wrapped around the
metal rod contained no DNA profile.
2. There was no DNA profile on the metal rod when
it was originally tested for trial in 2000.
3. When tested in 2015, the metal rod contained an
unknown female DNA profile. However, since
2000, that metal rod was handled on numerous
occasions by members of the BBC and [Pruett],s
own defense team, with no one wearing gloves.
4. The DNA profile found on the metal rod during
the most recent testing, which was not present on
the rod when it was originally tested, cannot be
considered relevant to this motion.
5. Baylor's testimony adequately addressed the most
recent problems concerning the FBI database and
DNA calculations.
6. The motion for DNA testing and the motion to
stay [Pruett]'s execution were not filed until the day
[Pruett] was scheduled for execution, even though
counsel emailed the motions to the trial court the
day before.
7. [Pruett]'s counsel were aware of the prior failure
to test the requested items as early as April 16,
20]5. However, for some inexplicable reason, they
waited until two days before the execution to
contact the DNA expert.
8. No aflidavit for good cause was attached to
[Pruett]'s pleadings in violation of the Court of
Criminal Appeals Miscellaneous Rule 11-003.
9. On July 23, 2015, [Pruett] filed his first motion
for the authorization of funds for expert services
requesting $5750.00. During the August 13 hearing,
[Pruett] re-urged his request, but the court withheld
its ruling until all of the evidence had been
presented.
On August 17, 2015, [Pruett] filed his second motion for the
authorization of funds for expert services requesting $6500.00.
Because the trial court found that there was no relevant DNA
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evidence to further consider, the court denied the requests. Given
the results of the testing and the evidence presented at the hearing,
the court concluded that, had the results been available during the
trial of the offense, it was not reasonably probable that [Pruett]
would not have been convicted.
Pruett v. State, No. AP-77,065, 2017 WL 1245431, at *6-9 (Tex. Crim. App. Apr. 5, 2017)
(footnotes omitted).
II.

Analysis

Pruett contends that the Texas DNA testing statute, TEX. CODE CRIM. PROC., ch. 64
("Chapter 64") creates a constitutionally protected liberty interest, and that he was denied his
liberty interest without due process by the Texas courts' misinterpretation of the statute and the
courts' improper and arbitrary application of the statute and procedures in this case. He seeks
injunctive relief compelling specific testing of evidence, and compelling defendant Baylor and
Choate to produce certain materials for review and testing.
Defendants do not dispute that Pruett has a liberty interest in DNA testing, but argue that
he is not entitled to relief. They move to dismiss for lack of subject matter jurisdiction and for
failure to state a claim upon which relief can be granted.
A.

Standard of Review
1.

Rule 12(b)(1)

A federal court must dismiss a case for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) when the court lacks the statutory or constitutional power to
adjudicate the plaintiff's claims. Home Builders Assoc' of Miss., Inc., v. City of Madison, 143
F.3d 1006, 1010 (5th Cir. 1998). In resolving a motion under Rule 12(b)(l), a court may refer to
evidence outside the pleadings. Espinoza v. Mo. Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th

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Cir. 1985). When the jurisdictional issue is of a factual nature rather than facial, plaintiff must
establish subject matter jurisdiction by a preponderance of the evidence. Irwin v. Veterans
Admin., 874 F.2d 1092, 1096 (5th Cir. 1989).
2.

Rule 12(b)(6)

In reviewing a motion to dismiss under rule 12(b)(6), the complaint must be liberally
construed in favor of the plaintiff and all facts pleaded in the complaint must be taken as true.
Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). The standard of review under

rule 12(b)(6) has been summarized as follows: "The question therefore is whether in the light
most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states
any valid claim for relief." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 601 (1969).
B.

Due Process

Pruett argues that the Texas courts have deprived him of his liberty interest by
interpreting and applying Chapter 64 in a manner that frustrates the legislative intent behind the
statute. This is, in essence, an argument that the Texas state courts have misinterpreted Texas
state statutory law. He asks this Court to find that Chapter 64 is unconstitutional as applied to
him in this case because the Texas courts have misinterpreted the statute and because they have
applied it in an arbitrary and inconsistent manner.
Defendants argue that Pruett's claim amounts to a request for a writ of mandamus
ordering Texas state officials to comply with what Pruett characterizes as the requirements of
Chapter 64.

Pruett denies that he seeks mandamus, but states that he seeks a finding that

Chapter 64 is unconstitutional as applied, and asks the Court to order a remedy. Specifically, he
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asks the Court to order "Baylor ... to provide to Pruett copies of any diagrams, data, or emails
related to either the 2000 analysis or 2015 analysis ...," and to order either Baylor or Choate to
release the shank and Nagle's clothing for testing. Reply (D.E. 16) at 18-19.
Pruett's claims are materially indistinguishable from the relief sought in Swearingen v.
Keller, el al., No. 1:16-cv-1181 (W.D. Tex. July 7, 2017) (D.E. 18). In Swearingen, another

Texas death row inmate filed suit challenging a Chapter 64 proceeding as "inconsistent and
arbitrary." Id at 5. He sought a declaratory judgment that Chapter 64, as interpreted by the
Texas Court of Criminal Appeals, was unconstitutional, and injunctive relief compelling specific
defendants to release evidence for testing.

The Western District of Texas court found that

"[s]ince Swearingen seeks only declaratory and injunctive relief, his pleading is properly
construed as a petition for mandamus relief ...." This analysis is equally applicable to Pruett's
claims.
A federal court "may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law." 28 U.S.c. § 1651. "But a
federal court lacks the general power to issue writs of mandamus to direct state courts and their
judicial officers in the performance of their duties where mandamus is the only relief sought."
Moye v. Clerk, DeKalb Cty. Superior Court, 474 F.2d 1275, 1276 (5th Cir.

1973)~

see also Noble

v. Cain, 123 F. App'x 151, 152 (5th Cir. 2005) ("mandamus relief ... is not available to federal
courts to direct state officials in the performance of their duties and functions"); Johnson v.
Hurtt, 893 F. Supp. 2d 817, 827 (S.D. Tex. 2012) ("federal courts lack the general power 'to

direct [or compel] state officials in the performance of their duties and functions"') (quoting
Noble, 123 F. App'x at 152).

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The only relief Pruett seeks is an order compelling Texas officials to comply with what
Pruett sees as the requirements of Chapter 64, or to act so as to allow Pruett independently to
effectuate his rights under Chapter 64. Regardless of how Pruett chooses to characterize this
relief, it is, at its core, mandamus.

Because this Court lacks jurisdiction to issue a writ of

mandamus, the complaint must be dismissed.
C.

Stay of Execution

Pruett also seeks a stay of execution to allow him to pursue additional DNA testing. In
reviewing an application for a stay of execution, this Court must consider
(1) whether the movant has made a showing of likelihood of
success on the merits, (2) whether the movant has made a showing
of irreparable injury if the stay is not granted, (3) whether the
granting of the stay would substantially harm the other parties, and
(4) whether the granting of the stay would harm the public interest.

a 'Bryan v.

McKaskle, 729 F.2d 991, 993 (5th CiT. 1984); OBryan v. Estelle, 691 F.2d 706,708

(5th CiT. 1982), cert. denied, 465 U.S. 1013 (1984); Ruiz v. Estelle, 666 F.2d 854, 856 (5th CiT.
1982). Although the movant in a capital case need not always show a probability of success on
the merits, he must present a substantial case on the merits when a serious legal question is
involved and show that the balance of the equities, i. e., the other three factors, weighs heavily in
favor of granting the stay. Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.), cert. denied, 483 U.S.
1036 (1987); McKaskle, 729 F.2d at 993; Ruiz, 666 F.2d at 856. In a capital case, the possibility
of irreparable injury weighs heavily in the movant's favor.

Estelle, 691 F.2d at 708. The

irreversible nature of the death penalty, however, must be weighed against the fact that there
must come a time when the legal issues in the case have been sufficiently litigated so that the law
must be allowed to run its course. Id
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For the reasons discussed above, Pruett fails to demonstrate that he has a substantial case
on the merits. Therefore, he is not entitled to a stay of execution.
D.

Conclusion

For the foregoing reasons, this case is dismissed with prejudice.
III.

Order
It is ORDERED that:

1.

The defendants' motion to dismiss (D.E. 15) is GRANTED; and

2.

The complaint (D.E. 1) is DISMISSED WITH PREJUDICE.

SO ORDERED

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SIGNED at Corpus Christi, Texas, on this i£L day of September 2017.

bt~&w~
Nelva Go les Ramos
United States District Judge

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