| Return to Jeffery Lynn Williams Homepage |
UNITED STATES COURT OF APPEALS - FIFTH CIRCUIT
JEFFERY LYNN WILLIAMS,
Petitioner/Appellant
v.
NO. 01-20505
GARY JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL
DIVISION, Respondent/Appellee
APPLICATION FOR CERTIFICATE OF APPEALABILITY
COMES NOW Petitioner/Appellant, JEFFERY LYNN WILLIAMS, by and through his
attorney of record, Robin
Norris, and hereby applies, pursuant to 28 U.S.C. § 2253
(c), for a certificate
of appealability to authorize
an appeal to this Court from the final judgment of the
United States District
Court for the Southern
District of Texas, Houston Division, entered April 5, 2001.
THE STANDARD
A certificate of appealability should be issued if the applicant makes
a
substantial showing of
the
denial of a constitutional
right. Lamb v. Johnson, 179 F.3d 352, at 356 (5th Cir.
1999). A petitioner
makes a substantial showing
if he
Application for Certificate
of Appealability
WILLIAMS V. JOHNSON
Page 1 of 6 Pages
demonstrates that his
petition involves issues which are debatable among reasonable
jurists, that a court
could resolve the issues
differently, or that the issues are adequate enough to
deserve encouragement
to
proceed further. Id.,
citingDrinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996).
The applicant need not
show he would necessarily
prevail on the merits of his claims. Barefoot v. Estelie,
463 U.S. 880 (1983).
The dire nature of the
penalty in a capital case is a relevant consideration in
determining whether to
issue
a certificate of appealability.
Lamb v. Johnson, supra, at 356. In a capital case, any
doubts whether a
certificate should be
issued are to be resolved in favor of the petitioner. Id.
ARGUMENT
Summary Judgment Analysis
The order of the federal district court which is the subject of this application
for certificate of
appealability is based
upon a misapplication of summary judgment rules, the correct
application of which
is critical to the fair
adjudication of numerous habeas corpus petitions in this
jurisdiction and throughout
the country. The district
court held in this case that a federal habeas petitioner,
unlike other litigants,
is
not entitled to have all
of the undisputed facts and reasonable inferences from them
accepted as true
when the court resolves
a summary judgment motion against him.
Application for Certificate
of Appealability
WILLIAMS V. JOHNSON
Page 2 of 6 Pages
The basis for this holding
is a statute requiring federal habeas courts to presume
that fact-findings made
by state courts are correct
unless proven by clear and convincing evidence not to
be. The consequence is
that federal habeas petitioners
are handicapped in meeting their burden of proof
because the very facts
upon which they rely to
establish by clear and convincing evidence the
incorrectness or unreasonableness
of state court fact-findings are effectively assumed to be false.
This case is a good example. Petitioner alleged, and offered to prove,
certain
background facts
which, he claimed, were
sufficient to show counsel ineffectiveness at trial. The
state courts refused
to
hold an evidentiary hearing,
and the affidavits submitted to the court by trial
counsel did not address
these
background facts at all.
Instead, they merely articulated certain reasons for their
failure to introduce
at
trial a partially exculpatory
statement, first given by Williams to the police soon
after his arrest. But
they
did not offer to explain
why they had failed to investigate the existence of available
corroborating
circumstances, and the
state courts made no fact-findings with respect to such
failure. Indeed, they
did
not even make findings
relating to the existence of the background facts, which
were uncontroverted
throughout the state habeas proceedings.
It is Williams’s position that, under these circumstances, he should either
have
Application for Certificate
of Appealability
WILLIAMS V. JOHNSON
Page 3 of 6 Pages
been given an opportunity
to develop these background facts at an evidentiary
hearing, or it should
have
been assumed on motion
for summary judgment that such facts were true and a
determination made by
the district court whether,
if true, Williams was denied the effective assistance of
counsel. Instead, the
district court essentially
ratified the state-court judgment without regard to the
background facts,
effectively preventing
Williams from meeting his burden to show that the judgment
of the state courts
was unreasonable.
The question whether the statutory admonition in federal habeas cases to
presume the correctness
of state-court fact-findings
overcomes the ordinary analysis on motion for summary
judgment in this way
is thus a critical issue,
not yet authoritatively resolved by this Court, which deserves
encouragement to
proceed further in this
case.
State-Court Fact-Findings
To complicate matters, the district court appears to have invented from
whole
cloth a strategic basis
for defense counsel’s
failure to investigate and present the background facts tending
to corroborate
Williams’s first statement
to the police. As pointed out above, the state court made
no fact-findings
regarding the existence
of this evidence or about defense counsel’s failure to
investigate it. The district
court
Application for Certificate
of Appealability
WILLIAMS V. JOHNSON
Page 4 of 6 Pages
did not claim to infer
any such fact-findings from the state-court judgment, but
simply surmised that
counsel might have been
unwilling to present such evidence, had they been aware
of it, for various
reasons. See fn 19, 20.
Such methodology flies in the face of this Court’s
precedents, and further
disables
Williams’s ability to
meet his habeas burden by obviating the need for any inquiry
into the failure of
defense counsel even to
conduct an adequate pretrial investigation before making
strategic choices about
the course of trial. Further
review of this holding is indicated because reasonable
jurists would likely
disagree about the appropriateness
of the district court’s method.
ROBIN NORRIS
Texas Bar No.
15096200
2408 Fir Street
El Paso, Texas 79925
(915) 590-4446 Voice
(915)590-9992 Fax
ATTORNEY FOR
PETITIONER
Application for Certificate
of Appealability
WILLIAMS V. JOHNSON
Page 5 of 6 Pages
I, Robin Norris, Attorney for Petitioner, do hereby certify that a true
and
correct copy of the
foregoing application
for certificate of appealability has been served on Respondent
by placing it in the
United States mail, postage
prepaid, on the 7/26/01
, addressed to J. Andrew
Hutton, Assistant
Attorney General of Texas,
Attorney in Charge, at P.O. Box 12548, Capitol
Station, Austin, Texas
78711.
__________________________
ROBIN
NORRIS
Application for Certificate
of Appealability
WILLIAMS V. JOHNSON
Page 6 of 6 Pages
| Return to Jeffery Lynn Williams Homepage |
