Burton v. Thaler

863 F.Supp.2d 639

Arthur Lee BURTON, Petitioner,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. 10–1314.

United States District Court,

S.D. Texas,

Houston Division.

May 29, 2012.

James Richard Reed, Attorney at Law, Conroe, TX, for Petitioner.

Edward Larry Marshall, Tomee Morgan Heining, Officer of the Attorney General of Texas, Austin, TX, for Respondent.

MEMORANDUM AND ORDER

DAVID HITTNER, District Judge.

Arthur Lee Burton, an inmate on Texas' death row, has filed a petition seeking federal habeas corpus relief. (Docket Entry No. 1). Respondent Rick Thaler, Director of the Texas Department of Criminal Justice—Correctional Institutions Division, has filed an answer. (Docket Entry No. 5). After considering the record, the pleadings, and the applicable law, the Court will deny Burton's habeas petition. The Court will not certify any issue for appellate review.

BACKGROUND

I. The Crime

On July 29, 1997, Nancy Adleman left her home shortly after 7:00 p.m. for a short run on her usual route which took her along a bayou near her home. She never returned. The next day, police officers found Mrs. Aldeman's brutally beaten body in a heavily wooded area near the bayou. She had been strangled with her own shoelace. Because she was naked from the waist down, the police suspected that she had been sexually assaulted.

Witnesses reported having seen a dirty and angry-looking man riding a bicycle along the bayou around the time when Ms. Aldeman had left to go jogging. Using the witnesses' description, the police released a composite sketch to the public, from which individuals recognized Burton. The police took Burton to the homicide office for questioning. Burton initially denied committing the murder. When the police confronted him with inconsistencies in his story, he confessed.

Burton described how he killed Ms. Aldeman after a failed sexual assault:

About a week and a half ago I was riding my step mom's bike on the bayou behind my house. I rode around for a while and I seen this woman jogging. She was an older white woman wearing some shorts and some tennis shoes and a top. I think they were blue. I rode up behind her and pushed my bike down the hill into the bayou. I ran up behind her and grabbed her and pulled her in the woods. I threw her down and she started screaming and I choked her with my hands. She went unconscious for a little while. I took her shorts off and her panties and I left them there. She came back to and I got on top of her and I was trying to have sex with her but I got so nervous that I couldn't do it. Then she started screaming again. She was asking me did I know about God. She said I forgive you. She told me to just leave. She asked me why was I doing it and that I didn't have to do it and saying that I was a handsome man. I got up and I was fixing to leave. She grabbed my ear and she started screaming and I choked her until she went unconscious again. Then I drug her and we both fell in a hole. I got out and I was leaving and I saw somebody a man walking by himself. I went back and I took a shoestring out of her shoe. I left her shoe on and tied her shoestring around her neck. Then I went and got my bike and I went on.... I rode back down the bayou to the street[.] ... It was starting to get dark then. I didn't tell anybody.

Tr. Vol. 29, State's Exhibit 2.¹

II. Burton's Initial Trial and Appeal

The State of Texas charged Burton with capital murder. Clerk's Record at 3. The State accused Burton of strangling the victim during the commission of, or attempted commission of, a kidnapping or aggravated sexual assault. The State based its case on the eyewitnesses placing Burton near the scene of the crime and on his confession. The trial defense attempted to call into doubt the identification of Burton as the man witnesses saw on the bayou before the murder. In addition, Burton himself testified that he only confessed after police mistreatment. The jury found Burton guilty of capital murder. After a separate punishment phase, the jury answered Texas' special issue questions in a manner requiring the imposition of a death sentence.

Burton appealed his conviction and sentence. During the pendency of Burton's appeal, he filed an initial state application for a writ of habeas corpus. The courts, however, took no immediate action on that application because the Texas Court of Criminal Appeals vacated Burton's death sentence on direct appeal. Burton v. Texas, No. 73,204 (Tex.Crim.App. March 7, 2001).

III. Burton's Second Punishment Hearing

The State of Texas held a second punishment hearing in 2002. The Court of Criminal Appeals summarized the evidence adduced by the State as follows:

In addition to the facts of the crime, the state presented evidence that, in 1988, when [Burton] was eighteen, he had participated in thirty-nine burglaries of vehicles and outbuildings in a single month. [Burton] and his co-defendants had stolen guns, radios, fishing equipment, calculators, and other items. At times, the perpetrators would not take anything; they would just go through any papers in the car and then destroy the inside of the vehicle. Finally, [Burton's] brother testified that he knew that [Burton] used marijuana and sold cocaine when [he] lived in Arkansas.

Burton v. Texas, No. 73,204, at 2–3, 2004 WL 3093226 (Tex.Crim.App. May 19, 2004). The State also emphasized that during a prison classification interview Burton stated that he killed the victim because it was “[j]ust something [he] couldn't help.”

The defense presented evidence that Burton was remorseful for his crime. Witnesses also described Burton's difficult, poverty-ridden childhood. The defense emphasized that Burton had not acted violently since his incarceration. A jury again answered Texas' special issues unfavorably to Burton. Burton was sentenced to death a second time on September 6, 2002. The Court of Criminal Appeals affirmed the direct appeal from Burton's second punishment hearing.

IV. State Habeas Review

The reversal of Burton's initial death sentence did not void his initial state habeas application insofar as it related to his capital conviction. During the pendency of his second direct appeal, Burton filed a second application for a writ of habeas corpus. On separate dates (March 10, 2006 and April 2, 2007), the lower habeas court signed the State's proposed findings and conclusions recommending that the Court of Criminal Appeals deny Burton's two state habeas applications.

On November 7, 2007, the Court of Criminal Appeals entered two orders relating to Burton's state habeas applications. First, the Court of Criminal Appeals adopted all the findings and conclusions relating to Burton's initial application and denied relief on that action. Ex parte Burton, No. WR 64,360–02, 2007 WL 3292685 (Tex.Crim.App. Nov. 7, 2007).² Second, the Court of Criminal Appeals entered an order adopting the trial court's findings and denied relief with regard to all but one claim in Burton's second habeas application. Ex parte Burton, No. WR 64,360–01, 2007 WL 3289679 (Tex.Crim.App. Nov. 7, 2007). The Court of Criminal Appeals ordered additional briefing and oral argument on Burton's second ground for relief. After clarifying its concerns, the Court of Criminal Appeals remanded the case for factual development. Ex parte Burton, AP–75,790, 2008 WL 2486459 (Tex.Crim.App. Jun. 20, 2008). After additional briefing by the parties, the state district court adopted the State's supplemental findings and conclusions. The Court of Criminal Appeals did not adopt the lower court's findings and conclusions, but denied relief nonetheless. Ex parte Burton, AP–75,790, 2009 WL 874202 (Tex.Crim.App. Apr. 1, 2009). Federal review followed.

V. Federal Habeas Proceedings

This Court appointed counsel to represent Burton throughout his federal habeas proceedings. Burton filed a petition for a federal writ of habeas corpus raising the following grounds for relief:

1. The State elicited testimony in the second punishment phase that violated Burton's Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel.

2. Trial counsel ³ provided ineffective assistance by not adequately objecting to the introduction of Burton's challenged statements in the second punishment phase.

3. The trial court violated Burton's Eighth Amendment rights by not permitting him to deliver a statement of allocution without being subjected to cross-examination.

4. Appellate counsel failed to raise a complaint championing Burton's right to allocution.

5. Burton is actually innocent of capital murder.

Respondent has filed an answer arguing that Burton's claims do not merit habeas relief. (Docket Entry No. 5), Burton has filed a reply. (Docket Entry No. 7). Pursuant to court order, the parties have provided additional briefing. (Docket Entry Nos. 9, 12). This matter is now ripe for adjudication.

LEGAL STANDARDS

The writ of habeas corpus provides an important, but limited, examination of an inmate's conviction and sentence. See Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (“[S]tate courts are the principal forum for asserting constitutional challenges to state convictions.”). Federal habeas corpus review provides a tightly circumscribed examination of state criminal judgments. While “the Framers considered the writ a vital instrument for the protection of individual liberty,” Boumediene v. Bush, 553 U.S. 723, 743, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), principles of finality, comity, and federalism narrow the scope of federal habeas review. See Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (“The role of federal habeas proceedings ... secondary and limited.”); Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (“The States possess primary authority for defining and enforcing the criminal law.”). With...