Will v. Lumpkin

1

ROBERT GENE WILL, II, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. 15-CV-3474

United States District Court, S.D. Texas, Houston Division

April 4, 2024

MEMORANDUM AND ORDER

KEITH P. ELLISON UNITED STATES DISTRICT JUDGE

In this successive federal habeas corpus action, Robert Gene Will II, seeks relief from his Texas capital conviction and death sentence. After several years of litigation, the parties have finally fully briefed the question of whether the Texas courts unreasonably denied Will's claim that the State suppressed material contrary to Brady v. Maryland 373 U.S. 83 (1963). The Court finds that the state-court decision was contrary to federal law. The litigation will proceed as discussed below.

Background

The matters raised in the instant lawsuit are the culmination of two decades of litigation. Courts have previously described the underlying facts in great detail; there is no need to recount it for purposes of the matter now before this Court. See In re Will, 970 F.3d 536, 544-48 (5th Cir. 2020); Will v. Thaler, No. H-07-CV-1000, 2010 WL 2179680, at *1-4 (S.D. Tex. May 25, 2010); Will v State, No. 74,306, 2004 WL 3093238, at *1 (Tex. Crim App. Apr. 21, 2004); Dkt. 57-74 at 155-66). Over the years, Will's challenges to his culpability have followed a constant theme: that his co-defendant Michael Rosario is the man who shot Harris County Police Deputy Barrett Hill on the morning of December 4, 2000. Will's overarching theory about the events of that morning has remained constant, yet the evidence on which he bases his claims has shifted with time. The question has always been whether, as two police officers chased Will and Rosario in different directions, Rosario circled back around and shot Deputy Hill.

Previously, Will based his post-conviction challenges on a wide variety of issues: forensics, timing, statements Will and Rosario made after the crime, and events that transpired while the government held Rosario in the Harris County Jail. Now, the case concerns evidence that the prosecution kept from Will's trial attorneys.

The instant lawsuit arises out of a successive state habeas application Will filed in 2015. That application raised three claims: (1) Will is actually innocent; (2) the State suppressed two documents from the defense; and (3) trial counsel should have uncovered the documents allegedly suppressed by the State. (Dkt. 57, Ex. 71 at 2-3). Will summarizes the allegedly suppressed material as follows:

The first was a Harris County Sheriff's Office document, which reveals that the county jail was holding Michael Rosario in a separate section of the Harris County Jail because Rosario had asked a prison gang to kill Rob Will. See Ex.1, Michael Rosario Administrative Separation Review Sheet (“Hit Document”), at 1. Specifically, Rosario's “Administrative Separation Review Sheet” states that Rosario's “Reason For Separation” was that Rosario was “soliciting [the Texas Syndicate prison gang] to make [a] hit on co-def. Robt. Will.” See id. The Hit Document also indicates that contact was made “w[ith] [the Disruptive Group Unit] to visit w[ith] David Cruz [Texas Syndicate].” Id. Copies of Mr. Cruz's undisclosed jail records found in the District Attorney's case file show that the State knew of his connection to Rob Will's case before trial. Compare Ex. 6, David Cruz Administrative Separation Review Sheet Updated 2-10-01, at 1, with Ex. 5, David Cruz Administrative Separation Review Sheet Last Updated 4-2701, at 1. A second document never disclosed to Mr. Will's defense counsel was a report by Harris County Sheriff's Deputy Patricia Schifani. See Ex. 7, Report of Deputy Patricia Schifani (“Schifani Report”). According to her report, Deputy Schifani was returning Harris County jail inmates, including Michael Rosario, from court on December 7, 2000, three days after the murder.

Rosario looked directly at the mourning badge cover that Deputy Schifani had been wearing in honor of Deputy Hill and said, “Do you know why you are wearing that? . . . I am part of the reason you are wearing it, do you know who I am?” Id. Rosario, the son of a Houston Police Department officer, then “pointed at his armband caution text which indicated ‘*PROTECTION*'” and said, “I'm high-profile! Do you know who my father is?” Id.

(Dkt. 37 at 3-4). Will's successive habeas proceedings also raised a third item of undisclosed evidence relating to trial witness Cassandra Simmons.^[1] Ms. Simmons is a witness who testified at trial that Will told her “he had just shot a policeman.” Will claimed that Ms. Simmons did not tell that to the police initially. Will claimed that the prosecution did not divulge that, on the eve of trial, it had showed Ms. Simmons “very gruesome and extremely graphic” photographs of the slain victim. (Dkt. 57, Ex. 71 at 25). Will claimed that the photos “no doubt biased her testimony, causing her to recount a statement that, the evidence shows, was not part of her actual recollection of the events.” (Dkt. 57, Ex. 71 at 25). Independent of the allegedly suppressed material, Will also relied on significant evidence to show his innocence.

On February 5, 2014, the Court of Criminal Appeals entered an order remanding the subsequent state habeas application. The trial-level habeas court considered Will's evidence without ordering an evidentiary hearing.

Both parties submitted proposed findings of fact and conclusions of law in early December 2014. (Dkt. 57-74 at 2-77). For a reason that is not clear from the record, the State submitted amended findings and conclusions on December 31, 2014. (Dkt. 57-74 at 153). On January 26, 2015, the trial court signed the State's 49-page-long proposed recommendation without alteration. (Dkt. 57-74 at 153-201). The Court of Criminal Appeals adopted the lower court's findings and conclusions, with several exceptions. Ex parte Will, 2015 WL 13388366, at *1 (Tex. Crim. App. 2015).

Will then began to prosecute a successive habeas petition in federal court. Will filed the instant federal petition in this Court in 2015. The parties' briefing became ripe on September 15, 2017. On September 25, 2017, the Court transferred this action to the Fifth Circuit for a determination of whether the Anti-Terrorism and Effective Death Penalty Act (AEDPA) would allow him to proceed with a successive habeas action. (Dkt. 20). The question remained pending until the Fifth Circuit tentatively authorized successive proceedings on August 5, 2020. In re Will, 970 F.3d 536 (5th Cir. 2020).

The parties returned to this Court and extensively briefed the question of whether successive proceedings were appropriate. Once the issue became ripe, this Court entered a Memorandum and Order allowing successive review on March 28, 2023. (Dkt. 79). The briefing has since turned from the procedural question of whether the case should advance to the question of whether Will's claims merit relief.

The Court begins by acknowledging an underlying concern throughout this litigation: The State has not denied that it has kept information from Will. On successive state habeas review, the State did not dispute that the Hit Document and Schifani Report had not been turned over to Will's trial attorneys. (Dkt. 57-72 at 82-83). After returning to federal court, the State turned over even more information that it had secreted away in the prosecutor's “work product folder.” Will argues that more material likely remains undisclosed. Will's action seeks additional factual development, in particular an in camera review of what material the State is still maintaining in the work product folder.

The Court will first address the legal standards that govern this action and then turn to the question of whether Will has filed this case in a timely manner. The Court will then apply AEDPA to Will's Brady claim and discuss the path forward in this case.

Standard Of Review

AEDPA governs this habeas proceeding. Honoring principles of comity and federalism, Congress enacted AEDPA “to impose significant limits on the discretion of federal courts to grant habeas relief.” Calderon v. Thompson 523 U.S. 538, 554 (1998); see also Danforth v. Minnesota, 552 U.S. 264, 278 (2008) (observing that the courts have “adjust[ed] the scope of the writ in accordance with equitable and prudential considerations”). AEDPA sets exacting procedural requirements over what a habeas court may consider and establishes strict guidelines about how a court may review it.

If a habeas petitioner has presented his federal constitutional claims to the state courts in a procedurally proper manner, and the state courts have adjudicated their merits, AEDPA provides for a deferential federal review. Under AEDPA's rigorous requirements, a federal court reviews “[c]laims presenting questions of law” under Section 2254(d)(1). Neal v. Vannoy, 78 F.4th 775, 783 (5th Cir. 2023). Section 2254(d)(1) is “divided into two categories: the ‘contrary to' standard, and the ‘unreasonable application' standard.” Id. A habeas petitioner may only secure relief after showing that the state court's rejection of his claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1)-(2).

Courts review claims presenting questions of fact under two sections of AEDPA. First, a federal habeas court presumes the underlying factual determinations of the state court to be correct, unless the habeas petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 341 (2003); Young v. Dretke, 356...