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King v. Davis

United States Court of Appeals, Fifth Circuit

February 22, 2018

JOHN WILLIAM KING, Petitioner - Appellant

         Appeal from the United States District Court for the Eastern District of Texas

          Before KING, SOUTHWICK, and HAYNES, Circuit Judges.

          KING, Circuit Judge

         John William King was convicted and sentenced to death by a Texas jury for the capital murder of James Byrd. After his direct appeal and state habeas applications failed, King sought federal habeas relief. The district court denied King's petition. This court then granted a certificate of appealability on one claim: that King's trial counsel was constitutionally ineffective in presenting the case for King's innocence. We agree with the district court that this claim fails on its merits, and thus we AFFIRM.


         This case concerns a high-profile murder in the small town of Jasper, Texas. Early Sunday morning, June 7, 1998, Jasper police discovered the dismembered body of James Byrd, a black man. His torso, legs, and left arm were found on Huff Creek Road in front of a church. The rest of Byrd was found a mile and a half up the road. A forensic pathologist would later testify that Byrd's injuries-cuts and scrapes around his ankles and abrasions covering most of his body-were consistent with having his ankles wrapped together with a chain and being dragged by a vehicle. Byrd's death and dismemberment were caused, according to the pathologist, when he was slung into a culvert on the side of the road.

         From Byrd's remains, police followed a blood trail up a logging road. The trail ended at a grassy area where a fight appeared to have occurred. At the grassy area, police found a variety of items, including a cigarette lighter engraved with the words "KKK" and "Possum, " three cigarette butts, a can of "fix-a-flat, " a CD, a pack of Marlboros, beer bottles, a button from Byrd's shirt, Byrd's baseball cap, and a wrench inscribed with the name "Berry."

         Police asked around Jasper to see if anyone saw Byrd on the night he was killed. A lifelong acquaintance of Byrd said he saw Byrd at a party on Saturday night, June 6. Byrd had left the party around 1:30 or 2:00 in the morning, walking alone towards his home. Another acquaintance drove past Byrd, who was walking down the road away from the party. At around 2:30 a.m., after the acquaintance had made it home, he saw Byrd pass, riding in the back of a primer-grey pickup truck. Three white men were in the cab of the truck.

         On Monday, a day after Byrd's body was discovered, police stopped a primer-gray pickup for a traffic violation. Its driver was Shawn Berry. In the truck, police found a tool set which matched the wrench found at the grassy area. Berry was arrested. Dried blood spatters under the truck and on one of the tires were discovered and then DNA tested. The DNA matched Byrd's. A substance consistent with fix-a-flat was found inside one of the truck's tires. In the truck's bed, police found a rust stain in a chain pattern.

         Police searched Berry's apartment, which he shared with Lawrence Russell Brewer and John William King. They seized the roommates' drawings, writings, clothes, and footwear. Among the items seized were two pairs of "Rugged Outback" sandals, one size 9.5 and another size 10. The size-10 sandals were found in King's room, under his dresser, and next to his photo album. They were stained with Byrd's blood. An FBI forensic examiner, who compared the sandals to footprints at the grassy area, found that either the size-9.5 or -10 sandals could have created some of the prints. Another FBI agent took foot measurements of various suspects. King's feet were size 9.5, Shawn Berry's were 9, Brewer's were 7, and Lewis Berry's, Shawn Berry's brother who stayed sometimes at the apartment, were 10.

         The three cigarette butts found in the grassy area were DNA tested. DNA from one butt revealed King as a major contributor, excluded Shawn Berry and Brewer as contributors, and did not exclude Byrd as a minor contributor. A minor contributor, an FBI investigator would explain at trial, deposits a small amount of DNA-say, by taking a single drag off a cigarette.

         More physical evidence came to light linking King to the grassy area and the killing. The "Possum" lighter was King's (Possum was King's nickname in prison). Police also uncovered a 24-foot logging chain which matched the rust stains in the bed of Shawn Berry's truck. The chain was found in a covered hole in the woods behind the house of a mutual friend of the roommates. The mutual friend, Tommy Faulk, testified that on June 7, the day Byrd's body was found, King and Brewer showed up unannounced at Faulk's house. They came in Berry's truck. They parked on the side of Faulk's house facing the woods, entered through the back door, stayed for a brief time, and then left.[1] The chain was found the next day in the woods behind Faulk's house.

         King, Shawn Berry, and Brewer were charged with capital murder and separately tried. At King's trial, the State introduced all the previously mentioned physical evidence, as well as evidence showing King's violent hatred of black people. During his first stint in prison (which ended about a year before Byrd was killed), King was the "exalted cyclops" of the Confederate Knights of America (CKA), a white-supremacist gang. King's drawings displayed scenes of racial lynching. Several witnesses testified that King would not go to a black person's house and would leave a party if a black person showed up. King also had several prison tattoos. Among them were a burning cross, a Confederate battle flag, "SS" lightning bolts, a figure in a Ku Klux Klan robe, "KKK, " a swastika, "Aryan Pride, " and a black man hanging by a noose from a tree.

         The State also put on evidence of King's larger ambitions. The State introduced King's writings, which indicated that King wished to start a CKA chapter in Jasper. The writings also indicated that King was planning for something big on July 4 (a little less than a month after the killing occurred). In prison, King spoke with other inmates about his goal of starting a race war, and about initiating new members to his cause by having them kidnap and murder black people. He wrote a letter to a friend about his desire to make a name for himself when he got out of prison. A gang expert, who reviewed King's writings, said that King's use of persuasive language showed he sought to recruit others to his cause. The expert also testified that where Byrd's body was ultimately left-on a road in front of a church rather than in the surrounding woods-demonstrated that the crime was meant to spread terror and gain credibility.

         King did not testify at his trial. But his version of events was introduced by the State through a letter he sent from jail to the Dallas Morning News. In that letter, King professed his innocence. He explained that his Possum lighter had been misplaced a week or so before he was arrested. He also presented his account of the night, pinning the murder on Shawn Berry and implying that the murder was the result of a steroid deal gone wrong. He admitted that he, Shawn Berry, and Brewer were drinking and driving around in Berry's truck on the night of the killing, but explained that he and Brewer had told Berry to drop them off at the apartment. Heading home, Berry spotted Byrd walking on the side of the road. Berry and Byrd, according to King, knew each other from county jail, and Byrd had sold Berry steroids in the past. After a brief exchange, Byrd hopped in the truck behind the cab. Berry explained that Byrd would ride along because the two of them "had business to discuss later." The party took a detour to a grocery store before heading home. At the store, Berry asked Brewer for some cash "to replenish his juice, steroid supply." Brewer obliged him, and the group got back in the truck, this time with Berry and Byrd up front so that they could chat about the deal, and Brewer and King in the back. Berry dropped Brewer and King off at the apartment and then left with Byrd.

         The State poked two holes in this story. First, the State adduced testimony from Lewis Berry and Keisha Atkins, King's friend, that contrary to King's story that he lost the Possum lighter a week before, he had the lighter on the night of the killing. Lewis Berry explained that King had lost his lighter, but that it had been returned to him before the night of the killing. Second, the State put on evidence that Brewer's shoe was stained with Byrd's blood, undermining King's claim that both he and Brewer were dropped off earlier.

         The State also put on a note King had tried to smuggle to Brewer while both men sat in jail. A portion of the note reads as follows:

As for the clothes they took from the apt. I do know that one pair of shoes they took were Shawn's dress boots with blood on them, as well as pants with blood on them. As far as the clothes I had on, I don't think any blood was on my pants or sweat shirt, but I think my sandals may have had some dark brown substance on the bottom of them.
. . . Seriously, though, Bro, regardless of the outcome of this, we have made history and shall die proudly remembered if need be. . . . Much Aryan love, respect, and honor, my brother in arms. . . . Possum.

         The State also introduced a wall scratching from King's cell: "Shawn Berry is a snitch ass traitor." King was aware at the time that Shawn Berry had spoken to police about the circumstances of Byrd's murder.

         King's trial counsel, [2] C. Haden Cribbs and Brack Jones, gave no opening statement, cross-examined most State witnesses, and called three witnesses. The defense attacked the State's case in a few ways. The State needed to show that the murder occurred in the course of a kidnapping to prove the capital-murder charge, see Tex. Penal Code Ann. § 19.03(a)(2), so the defense attacked the kidnapping theory to save King from the death penalty.[3] The defense also attacked the State's racial-motive theory by challenging the admission of evidence of King's racial animus and calling witnesses to testify that his racism was a method of self-preservation in prison. The defense put on evidence that King behaved normally following the murder. And the defense attacked the State's physical evidence, which we will return to later.

         These arguments did not convince the jury, as King was convicted of capital murder and subsequently sentenced to death. Meanwhile, Berry got a life sentence, see Berry v. State, No. 09-00-061CR, 2001 WL 726273, at *1 (Tex. App.-Beaumont June 27, 2001, pet. ref'd), and Brewer was sentenced to death, see Brewer v. Quarterman, 466 F.3d 344, 345 (5th Cir. 2006).

         After King was sentenced to death, he received a new lawyer for post-trial proceedings. That new lawyer moved for a new trial, raising an ineffective assistance claim. King swore in an attached affidavit that he told his trial counsel that he "had an alibi, that [he] had been dropped off in town and that there was an eyewitness to this, but [his] attorney failed to investigate this claim and failed to locate the eyewitness." King's motion was denied. King then attacked his sentence and conviction on direct appeal to the Texas Court of Criminal Appeals (TCCA), once again raising the argument that trial counsel failed him by not investigating his alibi. The TCCA rejected this claim and affirmed King's sentence and conviction. See King v. State, 29 S.W.3d 556, 558 (Tex. Crim. App. 2000).

         While King's direct appeal was pending, he was appointed state habeas counsel. This new lawyer filed a state habeas application, claiming that King was denied effective assistance for two reasons relevant here. The application argued that trial counsel was ineffective in failing to properly investigate and present an alibi defense and in failing to raise an insanity defense. In response to King's application, the State submitted an affidavit from Cribbs stating that he looked into the alibi but found nothing to support it. Cribbs also stated that his attempts to find evidence relevant to an insanity plea were rebuffed, as friends and family did not want to testify on King's behalf. Finding both claims meritless, the state habeas court recommended the denial of relief. The TCCA agreed and denied King's application without written order.

         King moved on to federal court with a new lawyer and new evidence.He raised 21 claims for relief, including the one relevant to this appeal-his claim that he received ineffective assistance of trial counsel in presenting the case for his innocence (his "IATC-innocence claim"). The district court granted summary judgment for the State on several of King's claims, and stayed the case to give King time to exhaust his remaining claims with the state courts. King's return to state court was not fruitful. The TCCA dismissed his second application as an abuse of the writ, "without considering the merits of the claims." Ex parte King, No. WR-49, 391-02, 2012 WL 3996836, at *1 (Tex. Crim. App. Sept. 12, 2012) (per curiam) (not designated for publication).

         King came back to federal court and filed an amended petition. The district court denied King's motions for discovery and an evidentiary hearing, and eventually his whole petition. With respect to King's IATC-innocence claim, the court found it subject to a procedural bar, one that King failed to overcome under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), or by showing actual innocence. Alternatively, the court found his claim meritless.

         We granted King a certificate of appealability (COA) on his IATC-innocence claim, but qualified the grant in one respect. King v. Davis, 703 Fed.Appx. 320, 331-32 (5th Cir. 2017) (per curiam). We noted that "to the extent that King is arguing in support of this claim that his trial counsel was ineffective in searching for an alibi witness, we decline to issue a COA with respect to that aspect of the claim." See id. at 332 n.13. King presented this argument to the state courts, and they reasonably ...

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