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Woodruff v. Davis

United States District Court, N.D. Texas, Dallas Division

November 30, 2017

BRANDON WOODRUFF, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          BARBARA M. G. LYNN CHIEF JUDGE

         In this state habeas case under 28 U.S.C. § 2254, Brandon Woodruff (Petitioner) challenges his conviction for capital murder in Cause No. 23, 319 in Hunt County, Texas. On May 16, 2017, the United States Magistrate Judge recommended that the petition for habeas corpus relief be denied with prejudice without an evidentiary hearing. (See doc. 17.) Petitioner timely filed objections and requested an evidentiary hearing. After reviewing the objections and conducting a de novo review of those parts of the Findings and Conclusions to which objections have been made, I am of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.

         I. BACKGROUND

         While Petitioner was in the pretrial custody of the Hunt County Sheriff's Department, all of his telephone calls were routinely recorded. The prosecutor from the Hunt County Assistant District Attorney's office instructed jail staff to monitor his telephone calls, and jail staff, investigators and the prosecutor listened to recordings of calls between Petitioner and his attorneys. The recordings were ultimately provided to Petitioner, who moved to dismiss the indictment and sought to question the prosecutor who had ordered the monitoring and to obtain production of the information learned as a result. These issues were addressed during the course of several hearings. The court listened to some of the recordings, ordered that all of the recordings be transcribed, recused the Hunt County DA's office, appointed a special prosecutor, and reviewed the State's file in camera. It denied the motion to dismiss and the requests to question the prosecutor and obtain the State's file, but it suppressed any evidence obtained from the conversations or that resulted from any investigation stemming from information learned from the calls. After a trial, a jury convicted Petitioner of the murder of his parents.

Petitioner's habeas petition raised two grounds:
(1) The Texas courts erroneously refused to dismiss the indictment when the State intentionally violated Petitioner's attorney-client privilege; and
(2) Assuming for the sake of argument Petitioner must prove prejudice when the State intentionally violated the attorney-client privilege, the Texas courts improperly permitted the prosecutor to invoke the attorney work product privilege.

(See doc. 1 at 6, 9.) He now objects to the recommendation in the Findings, Conclusions and Recommendation (FCR) that his petition be denied. Specifically, he objects to the conclusion that he had the burden to show harm as a result of the violation of his attorney-client privilege, to the failure to find that there was a substantial and injurious effect under Brecht v. Abrahamson, and to the conclusion that the exception to the Brecht standard for a deliberate and especially egregious error does not apply. (Doc. 18 at 6-8.) He also objects to the conclusions that he failed to exhaust his due process claim and that an evidentiary hearing was not necessary. (Id. at 8, 11.)

         II. BRECHT

         Petitioner objects to the failure to apply the standard set out in Brecht v. Abrahamson, 507 U.S. 619 (1993), for determining prejudice or harm as a result of a Sixth Amendment violation, i.e., whether the constitutional error had a substantial and injurious effect. He claims that the FCR erroneously assigned him the burden of proof even though the burden is not assigned to either party under that standard and that the Magistrate Judge, in the Findings, Conclusions, and Recommendation, failed to apply the exception to Brecht for deliberate and especially egregious error.

         In Brecht, the Supreme Court held that the harmless error standard of Kotteakos v. United States, 328 U.S. 750, 776 (1946), applied on federal habeas review of a state conviction.[1] Brecht, 507 U.S. at 637-38. Under Kotteakos, habeas relief is granted only if the constitutional error “had a substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637-38. To obtain federal habeas relief, petitioners have the burden of demonstrating harm under Brecht. See Basso v. Thaler, 359 F. App'x 504, 509 (5th Cir. 2010).

         In United States v. Morrison, 449 U.S. 361, 365 (1981), the Supreme Court addressed whether the dismissal of an indictment was an appropriate remedy for a Sixth Amendment violation. The Court held that “absent demonstrable prejudice or substantial threat thereof, dismissal of the indictment is plainly inappropriate even though the violation may have been deliberate.” United States v. Morrison, 449 U.S. 361, 365 (1981). Morrison placed on the petitioner the burden of demonstrating prejudice or a substantial threat of it that warrants dismissal of the indictment. See Morrison, 449 U.S. at 366 (the defendant “demonstrated no prejudice”); see also United States v. Davis, 226 F.3d 346, 353 (5th Cir. 2000) (finding that an indictment cannot be dismissed for a Sixth Amendment violation “without some showing of prejudice” and that there was no error in failing to dismiss the indictment because the defendant did not show prejudice); United States v. Johnson, 68 F.3d 899, 902 (5th Cir. 1995) (“a defendant must show prejudice to his ability to receive a fair trial before charges will be dismissed”); United States v. Laury, 49 F.3d 145, 150 (5th Cir. 1995) (defendant could not demonstrate prejudice warranting dismissal of the indictment). Morrison did not address harmless error; it examined the appropriate trial remedy for a Sixth Amendment violation by the government. Rushen v. Spain, 464 U.S. 114, 128 n.7 (1983) (Brennan, J., concurring).

         As in Morrison, the issue in this case is whether the trial court erred in failing to dismiss the indictment as the remedy for a Sixth Amendment violation. Under Morrison, Petitioner has the burden to show that the trial court committed error in failing to dismiss the indictment as a remedy for the Sixth Amendment violation by the State. If Petitioner fails to establish demonstrable or substantial threat of prejudice from the Sixth Amendment violation, then he has not met his burden to show error in failing to dismiss the indictment. If there was no error, then an analysis under Brecht to determine whether the error was harmless is unnecessary.

         Moreover, even if Brecht applied to the determination of whether the trial court should have dismissed the indictment as the remedy for the Sixth Amendment violation, Petitioner would still have the burden of demonstrating his entitlement to federal habeas relief, i.e., the burden of demonstrating a substantial or injurious effect. See Basso, 359 F. App'x at 509 (quoting Brecht, 507 U.S. at 637) (“habeas petitioners ... are not entitled to habeas relief on trial error unless they can establish that it resulted in ‘actual prejudice.'”). For the same reasons that he was not prejudiced by the Sixth ...


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