Dowthitt and his 16 year old son son picked up son’s girlfriend and
her 9 yr old sister from bowling alley, drove to woods.
Father attempted to touch 9 year old in truck while son and
girlfriend were outside. 9 yr old became upset, father immediately
got out and cut throat of 16 yr old, sexually abused her with beer
bottle, then cut her throat again. Dowthitt told son to kill 9 yr
old. Son complied and strangled 9 yr old with a rope.
Father blamed it all on son until minutes before execution, when he
confessed. Son testified and sentenced to 45 years.
Texas Attorney General
Tuesday, March 6, 2001
MEDIA ADVISORY -
Dowthitt Scheduled To Be Executed
AUSTIN - Texas Attorney General John Cornyn
offers the following information on Dennis Thurl Dowthitt who is
scheduled to be executed after 6 p.m. on Wednesday, March 7th:
On October 7, 1992, Dennis Thurl Dowthitt was
convicted of murdering 16-year old Gracie Purnhagen in Conroe,
Texas, during the course of an aggravated sexual assault.
A summary of the evidence presented at trial
follows: Gracie and Tiffany Purnhagen, ages 16 and nine,
respectively, were last seen by their mother on June 13, 1990.
The girls had been given money to walk the short
distance to a movie theater and go out to eat. Later in the evening,
the girls were seen in the company of Dowthitt and his son, Delton,
Another witness recounted seeing Gracie and
Tiffany leaving a bowling alley and Gracie indicating that she was
being picked up by her boyfriend, Delton.
Delton later testified concerning the events that
occurred thereafter. Delton had arranged to have Dowthitt drive him
to the bowling alley to pick up the girls and take them home. They
picked up the girls, and Dowthitt suggested that they stop and drink
some beer; he and Dowthitt had picked up a couple of six packs
earlier. Gracie agreed, so Dowthitt drove the group to an isolated
area and parked.
Gracie and Delton went behind Dowthitt's pickup
truck and began kissing, while Dowthitt and Tiffany were at the
front. Tiffany then came to the back of the truck looking frightened,
said that Dowthitt was trying to scare her, and whispered to her
There was some indication that Dowthitt had tried
to sexually assault Tiffany. Dowthitt, who was coming to the back of
the truck with a knife, said that he had made a mistake and that, "We've
got to get rid of them." Delton said "no," but Dowthitt said that it
was too late, pushed Gracie to the ground, and cut her throat.
Dowthitt ordered Delton twice to "do it." Obeying, Delton strangled
Tiffany until she fell to the ground and then got a rope and tied it
around her neck.
Meanwhile, Dowthitt got Delton's beer bottle off
the back of the truck and proceeded to sexually assault Gracie with
it. Dowthitt told Delton to join in sexually assaulting Gracie, but
Dowthitt cut Gracie's throat again and gave
Delton the knife, telling him to cut Tiffany's throat, but Delton
pocketed the knife, carried Tiffany into the woods and then helped
Dowthitt carry Gracie. Dowthitt threw the bottle in the back of the
Later that evening, two witnesses together saw
Dowthitt at his auto shop in Humble and noticed that his shirt had
blood on it.
The next day, according to the testimony of
Dowthitt's daughter, Darla, before the victim's bodies were
discovered, Dowthitt telephoned and repeatedly asked her if she
would forgive him for "what he's done." Darla testified that the
victims had been good friends of hers.
On June 16, 1990, Dowthitt, Delton and other
family members left for Louisiana under the guise of visiting
Dowthitt's aunt. That evening, the bodies of Gracie and Tiffany were
discovered in a wooded area in south Montgomery County.
A medical examiner later testified that Tiffany was killed by ligature
strangulation, and Gracie was killed by trauma to the neck involving
bleeding. Gracie's body showed evidence of sexual assault consistent
with the size of a beer bottle and that she had been conscious when
the assault occurred.
Dowthitt's aunt later testified that Dowthitt
talked to her privately on June 17, 1990, that he was upset and
almost crying, and that he told her, "I did it, and I made Delton do
it." However, he would not explain what he meant.
When Delton was arrested, he initially took the
blame for both murders and sought to conceal Dowthitt's involvement.
He later explained that Dowthitt had threatened him, as well as his
mother and sisters, and that he had believed that, as a juvenile,
his punishment would be less severe.
Delton pled guilty to the
murder of Tiffany Purnhagen and agreed to testify in exchange for a
45-year sentence and the dismissal of the charge of the capital
murder of Gracie. Delton's lawyer testified that Delton had told him
from the beginning, even before the plea agreement, that Dowthitt
After giving a series of inconsistent statements
to police, in which he went from denying to admitting being present
at the murder scene, Dowthitt was arrested for the murder of Gracie
During the punishment phase of Dowthitt's trial,
two of his daughters, Donna and Darla, testified regarding
Dowthitt's behavior with them.
Donna testified that when she was
four or five years old, Dowthitt had touched her inappropriately and
that when she was 15, Dowthitt touched her again and asked if she
remembered what had happened when she was a little girl. When this
later event occurred, Donna left immediately and did not continue
living with Dowthitt.
Dowthitt's 18-year old daughter, Darla, testified
that she went camping with him on the Sunday before the murders.
When they were alone, Dowthitt proceeded to threaten her with a
knife and sexually assault her.
She added that Dowthitt had been
raping her since she was 11 and that he had also previously used a
bottle and a broomstick on her. Dowthitt had also offered to buy her
a car if she would find him a young girlfriend.
October 16, 1991 - Dowthitt was indicted in the
221st District Court of Montgomery County, Texas, for the capital
offense of murdering more than one person during the same criminal
transaction and, in a second count, for murder in the course of
committing aggravated sexual assault.
October 7, 1992 - After being tried before a jury
upon a plea of not guilty, the state abandoned the first count of
the indictment, and the jury found him guilty of the second count.
October 9, 1992 - Following a separate punishment
hearing, the court assessed Dowthitt's punishment at death.
June 26, 1996 - The Texas Court of Criminal
Appeals affirmed his conviction and sentence in a published opinion.
October 16, 1996 - The Texas Court of Criminal
Appeals denied rehearing, and Dowthitt did not petition the United
States Supreme Court for a writ of certiorari from that decision.
August 19, 1997 - Dowthitt filed an application
for a state writ of habeas corpus, as well as a later supplemental
September 16, 1998 - After the state trial court
entered detailed findings of fact and conclusions of law
recommending that relief be denied, both applications were denied by
the Court of Criminal Appeals in an unpublished order.
April 19, 1999 - Dowthitt filed a petition for
writ of certiorari from that decision which was denied by the U.S.
December 30, 1998 - Dowthitt filed a petition for
habeas corpus relief in federal district court after obtaining
appointment of counsel and a stay of execution.
January 27, 2000 - After conducting an
evidentiary hearing on Dowthitt's claim of actual innocence in which
live testimony was heard from Delton, Federal Judge Nancy Atlas
found that Delton testified "clearly, unequivocally, and credibly"
and issued an 89-page opinion rejecting Dowthitt's claims and
denying habeas relief.
October 16, 2000 - The United States Court of
Appeals for the Fifth Circuit denied permission to appeal in a
November 10, 2000 - The Fifth Circuit court
February 8, 2001 - Dowthitt filed a petition for
writ of certiorari in the U.S. Supreme Court.
March 6, 2001 - The U. S. Supreme Court denied
Texas Execution Information
Center by David Carson
Dennis Thurl Dowthitt, 55, was executed by lethal
injection on 7 March in Huntsville, Texas for the sexual assault and
murder of a 16-year-old girl.
In June 1990, the bodies of two girls were found
along a pipeline in a community north of Houston. Grace Purnhagen,
16, had her throat slashed and had been sexually assaulted. Her
sister, Tiffany Purnhagen, 9, had been strangled, with a rope found
around her neck.
The police received a tip that Delton Dowthitt,
16, Grace's former boyfriend, had told a friend about the crime.
Four days after the girls' bodies were discovered, Delton Dowthitt
was arrested in Louisiana. He originally confessed to killing both
Later, he recanted, saying that he killed Tiffany at the
order of his father, Dennis Dowthitt, then 44. He said Dennis
actually killed Grace. Delton led police to the place where he said
his father had disposed of the knife. Police also found a bloody
bottle and rope at Dennis Dowthitt's used car business.
At his trial, Dennis testified that he and his
son met the sisters at a bowling alley the night of the killings and
drove them to a wooded area nearby. Delton testified that he and "Gracie"
were making out in the bed of the pickup while his father sat in the
cab with Tiffany.
He said that Tiffany suddenly got out and ran to
the rear of the truck, terrified, and that he saw his father holding
a knife. Saying he had made a mistake, his father told him, "Man,
we've got to kill them." He threw Grace to the ground and slashed
her throat, then attempted to rape her. He yelled twice at Delton,
"do it," meaning he wanted him to kill Tiffany.
Tiffany with his hands, then tied a rope around her neck. Delton
testified that his father was unable to rape Gracie, so he sexually
assaulted her with a beer bottle and ordered him to rape her, but he
refused. Dennis then cut her throat again.
Dennis initially said that he knew nothing about
the killings, but later admitted to being at the scene of the crime.
His fingerprint was found on a beer bottle covered with Grace
Purnhagen's blood. Two of Dowthitt's daughters testified how they
had been assaulted with objects or molested by their father for
years, including one occurrence 4 days before the murders.
Nevertheless, Dennis Dowthitt contended that his son committed both
Dowthitt declined requests for interviews during
his stay on death row, but his appeals maintained his claim of
innocence. On Monday, the Texas Board of Pardons and Paroles denied
his clemency request by an 18-0 vote. The U.S. Supreme Court denied
his appeal on Tuesday, and on Wednesday the Court declined a request
from Dowthitt's lawyer to review the case again.
After 11 years of denying that he killed Grace
Purnhagen, Dennis Dowthitt made an unexpected, emotional confession
while laying on the death gurney. Choking back tears, he told the
Purnhagen family, "I'm sorry for what you had to go through ... I
can't imagine losing 2 children. If I was you all, I would've killed
me. I am really sorry. I really am." Looking at the surprised family,
he added, "Gracie was beautiful and Tiffany was beautiful. You had
some lovely girls and I am sorry. I don't know what to say." His
apology finished, he the lethal injection was administered. He was
pronounced dead at 6:18 p.m.
In exchange for testifying against his father,
Delton Dowthitt pled guilty to murdering Tiffany Purnhagen and was
sentenced to 45 years in prison. In 1996, he was caught attempting
to escape and received another 6 years. He becomes eligible for
parole in 2002 according to one news report, 2005 according to
Sadistic rapist was executed
March 7, 2001
TEXAS - Sobbing and seeking repentance,
a former used car salesman accused of being a sadistic rapist was
executed today for sexually abusing and killing a Montgomery County
teen almost 11 years ago.
"I'm sorry for what you had to go through. I am
so sorry what you all had to go through," Dennis Dowthitt, 55, said
twice. "I can't imagine losing 2 children. If I was you all I
would've killed me. I am really sorry about. I really am."
His voice was choked with emotion. Holding back
tears, he looked at members of his victim's family and had
difficulty speaking, then added, "Gracie was beautiful and Tiffany
was beautiful. You had some lovely girls and I am sorry. I don't
know what to say."
Dowthitt was condemned for raping and fatally
slashing and stabbing Grace Purnhagen, 16, in an attack where the
girl's 9-year-old sister, Tiffany, also was strangled.
His voice shaking and his body quivering against
the leather restraints, Dowthitt turned away from witnesses as the
injection began and then fell limp. Among the witnesses, his sister
sobbed uncontrollably and a friend watching knelt on the floor. He
was pronounced dead at 6:18 p.m. CST, 7 minutes after the lethal
Dowthitt's son, Delton, 16 at the time of the
1990 murders, testified against his father and under a plea bargain
accepted a 45-year prison term for Tiffany Purnhagen's death. He
remains imprisoned, with an additional term for escape in 1995, but
becomes eligible for parole late next year.
On Tuesday, Dowthitt
lost an appeal before the U.S. Supreme Court. The Texas Board of
Pardons and Paroles, voting 18-0, refused his clemency request
Monday. His attorneys again went to the Supreme Court on Wednesday,
asking the justices to review the case even as the inmate requested
a final meal.
Less than 90 minutes before his scheduled punishment,
however, the high court denied a request for a reprieve and refused
to reconsider the case. "I'm frustrated the system takes so long,"
Linda Purnhagen, whose daughters were killed, said. "The kids got no
appeal. He was their judge, jury and executioner."
Grace Purnhagen and Delton Dowthitt had been
acquaintances. With her younger sister in tow at a bowling alley the
evening of June 13, 1990, Grace accepted a ride from the Dowthitts
and wound up in a wooded area in south Montgomery County not far
from their home in Oak Ridge North.
Court documents showed while
Grace and Delton Dowthitt talked nearby, Dennis Dowthitt tried to
molest the younger girl, who resisted and ran screaming to her
Delton Dowthitt testified that when his father told him the
girls had to be killed, Delton strangled Tiffany with a rope. Dennis
Dowthitt attacked Grace, first unsuccessfully trying to rape her,
then cutting her throat and raping her with a beer bottle before
stabbing her in the chest.
The decomposing bodies of both girls were
found 3 days later. Witnesses told of last seeing the girls outside
the bowling alley talking with the Dowthitts in a pickup truck.
A psychologist testified the elder Dowthitt,
while impotent, was a sadistic rapist who received pleasure by using
objects like bottles to cause pain through sex. At the punishment
phase of his trial, 2 of his daughters testified how they were
assaulted or molested by their father. "If we're going to have the
death penalty in Texas, then if it doesn't fit this case, it doesn't
fit -- ever," said Barbara Hale, a former Montgomery County
assistant district attorney who prosecuted Dowthitt.
Dowthitt, who declined to speak with reporters in
the weeks leading up to his execution, acknowledged to police he was
at the murder site but blamed the deaths on his son. "They didn't
have the information they needed, that's all," he said while being
led from the courtroom after a jury in 1992 decided he should be put
to death. "I'm not guilty."
Linda Purnhagen noted her younger
daughter now has been dead longer than she lived and that Dowthitt
remained alive over the years. "I don't think that's right," she
Dowthitt becomes the 5th condemned inmate to be
put to death this year in Texas and the 244th overall since the
state resumed capital punishment on December 7, 1982. Dowthitt
becomes the 17th condemned inmate to be put to death this year in
the USA and the 700th overall since America resumed executions on
January 17, 1977.
Killer Admits Guilt in Death Chamber
By James Kimberly - Houston Chronicle
New Hampshire Coalition to
Abolish the Death Penalty
March 7, 2001
HUNTSVILLE -- Strapped to the executioner's
gurney Wednesday night, Dennis Dowthitt sobbed as he apologized to
the family of the 16-year-old girl he sexually assaulted and
murdered more than a decade ago. "I am so sorry for what y'all had
to go through," he said in a halting voice, eyes squinting back
tears. "I can't imagine losing two children. If I was y'all, I would
have killed me."
Separated from Dowthitt by a double pane of
Plexiglas, the victim's mother, Linda Purnhagen, stared intently at
the 55-year-old as he spoke. She did not avert her eyes until the
lethal dose of drugs was delivered and Dowthitt was pronounced dead
at 6:18 p.m.
On the night of June 13, 1990, Dowthitt, a used-car
salesman from Humble, and his son, Delton, had offered to give
Delton's girlfriend, Gracie Purnhagen, and her 9-year-old sister,
Tiffany, a ride home from a bowling alley.
Instead, he drove them to
a remote wooded area off Rayford Road in south Montgomery County
where he attempted to molest Tiffany while his son and Gracie were
in the back of the truck.
Delton said Tiffany bolted from the cab
followed by Dennis Dowthitt who told his son he had "messed up,"
adding, "Man, we've got to kill them." Dowthitt ordered his son to
strangle the little girl as he slashed Gracie's throat and then used
a beer bottle to sexually assault her before stabbing her in the
Delton said he kissed the little girl on the forehead and
apologized before strangling her. Delton Dowthitt was not eligible
for the death penalty because he was 16 years old when he committed
the murder. He testified against his father in exchange for a 45-year
Until Wednesday night, Dowthitt had insisted that
Delton committed both murders by himself. Linda Purnhagen was glad
to hear Dowthitt take responsibility for the crime. She wanted to
believe his words were sincere, but she had doubts. "As he was going
to meet God, he finally admitted what he did," she said. Dowthitt's
behavior in the execution chamber surprised the Purnhagens.
his 1992 trial, Dowthitt was arrogant, sometimes even profane, to
the family, Purnhagen said. Strapped to the gurney Wednesday night,
he appeared to search for the family as they were led into the
viewing room. When he saw them, Purnhagen said he indicated his
remorse by shaking his head. "He looked really sad, scared," she
Her husband, Arthur, was surprised by the
emotional apology. "I would have bet a million bucks he wouldn't say
he's sorry," he said. Dowthitt closed his apology by saying, "Gracie
was beautiful and Tiffany was beautiful. You had some lovely girls
and I am sorry. I don't know what to say." In a room separated from
the , Purnhagens, Dowthitt's sister witnessed the execution with two
friends and a spiritual adviser.
Dowthitt turned to her and said, "I
got to go sister, I love you. Y'all take care and God bless you." He
then turned his head toward Huntsville Unit Warden Jim Willett and
blurted out, "All right warden, let's do it." Dowthitt's chest
heaved with sobs until the drugs took effect, first putting him to
sleep, then collapsing his lungs and stopping his heart.
Wednesday was the first time Dowthitt spoke
publicly about the crime. He had declined to be interviewed in the
week before his execution. The U.S. Supreme Court rejected
Dowthitt's final appeal about 90 minutes before the execution --
about the time he would have been served his final meal. Dowthitt
requested a dozen fried eggs, a loaf of bread, salad dressing,
french fries and three cartons of milk.
A Department of Criminal
Justice official said Dowthitt intended to make sandwiches. The
Supreme Court also rejected a Dowthitt appeal on Tuesday. And the
Texas Board of Pardons and Paroles rejected his request for clemency
Dowthitt was the fifth convicted killer executed
this year in Texas, where a record 40 executions were carried out
last year. Linda Purnhagen said the family will turn its attention
to battling Delton Dowthitt's requests for parole. "This particular
chapter has ended," she said. "That chapter is just beginning."
Amnesty International Execution
Dennis Dowthitt is scheduled to be executed in
Texas on 7 March 2001. He was sentenced to death in 1992 for the
murder of Gracie Purnhagen.
The bodies of 16-year-old Gracie Purnhagen and
her nine-year-old sister Tiffany Purnhagen were found on 16 June
1990 near a pipeline in Montgomery County. The younger girl had been
Her older sister had been sexually assaulted, and her
throat had been cut. Dennis Dowthitt's 16-year-old son, Delton
Dowthitt, who was dating Gracie Purnhagen at the time, confessed to
police that he had killed both girls.
He subsequently entered into a
plea bargain, pleading guilty to the murder of Tiffany Purnhagen in
exchange for a 45-year prison sentence and testimony against his
father for the sexual assault and killing of Gracie Purnhagen.
Although Dennis Dowthitt admits giving his son a
lift to the place where the girls were murdered, he has steadfastly
maintained that he was not present at the actual crime, and that it
was his son who killed both girls.
Amnesty International is not in a
position to assess his guilt or innocence, and opposes his execution
in any event. However, the organization is concerned by evidence
that would either appear to support Dennis Dowthitt's version of
events, or call into question his son's trial testimony.
example, Delton Dowthitt has apparently told others, both before and
after his father's trial, that he, Delton, killed both girls. A
police report, which the jury did not see, reportedly indicates that
Delton Dowthitt had previously raped a girl in the same place where
the murders occurred. In addition, Dennis Dowthitt's current lawyers
have raised serious questions about the reliability of the forensic
test results used by the state to implicate him in the murder.
Dennis Dowthitt, who is now deaf, has suffered
from mental illness since he was a teenager. His original trial
lawyers did not investigate this issue, or the abuse he suffered as
a child, to present in mitigation.
One of several mental health
experts, who have assessed Dowthitt since his conviction, concluded
that his profile was 'consistent with paranoid and schizophrenic
features'. A second expert has stated that the tapes of Dennis
Dowthitt's interrogation showed his 'severe mental problems'.
also said that he 'functions quite peacefully and successfully
within the prison environment', undermining the jury's finding of
his likely future dangerousness, a prerequisite for the death
sentence in Texas. Dennis Dowthitt is reported to have been a model
prisoner for the nine years he has been on death row. His only
disciplinary write-up was for having hung a sheet in front of the
toilet in his cell on 11 November 1997.
Dennis Dowthitt's current appeal lawyers continue
to investigate aspects of this case, including questions surrounding
the physical evidence relied upon by the state at the trial. In the
event that the Board of Pardons and Paroles does not recommend
clemency, they will ask the Governor of Texas to issue a 60-day
reprieve to allow them to continue their investigations.
Dennis Dowthitt (TX)
From the NCADP's
Dennis Thurl Dowthitt was convicted primarily on
the strength of the so-called "accomplice eyewitness testimony" of
his son, Delton, for murdering two sisters, aged 16 and 9, in a
wooded area of South Montgomery County in 1990.
The older girl was
also sexually assaulted with an object. Suspicion after the murders
centered immediately upon Delton Dowthitt, Dennis' teenaged son, who
was observed with both victims shortly before their deaths.
fled Texas and was arrested in Louisiana, where he gave a confession
in which he admitted slaying both sisters. In custody, Delton
recanted his confession and instead fingered his father, claiming
that Dennis had stabbed the older girl and ordered Delton to
strangle the 9-year-old. Delton pled to a 45-year sentence in
exchange for testifying against his father.
Hard evidence in the case is scant, and is
consistent with both Delton's original claim to be the sole killer
and his subsequent implication of his father -- hardly adequate to
justify a death sentence in light of Delton's self-interested
testimony. And the existing physical evidence (a knife with an
unidentifiable spot of blood, and a beer bottle with blood stains
whose DNA corresponds only loosely with Dennis' and was never tested
against Delton's was produced by Delton himself.
Moreover, considerable circumstantial evidence
corroborates Delton's retracted confession. A clinical psychologist
who examined Delton prior to the latter's trial formed the opinion
that Delton had a "propensity for violence" and "showed signs of
protecting himself and covering his tracks." Asked whether he
believed Delton capable of committing both murders as he originally
claimed, the psychologist was unequivocal: "Yes. He is also capable
of doing that."
The doctor, then, would likely not have been
surprised to learn that Delton once strangled one of his girlfriends
into unconsciousness for refusing to have sex with him, and that he
once took her to the very road where the bodies were discovered --
which he called "rape road" -- to sexually assault her.
damningly, Delton had bragged of the murders to several friends
prior to the arrest, and has done so since his father's death
sentence. He has both the sisters' names tattooed, trophy-like, upon
his body. If the state of Texas has its way, he may soon add his
father's name to the list.
In Conroe, Texas, on June 13, 1990 sixteen-year-old
Gracie Purnhagen and her 9-year-old sister Tiffany were picked up at
a bowling alley by Gracie's ex-"boyfriend", Delton Dowthitt, also
16, and his father, Dennis Dowthitt.
They drove to a secluded area. Delton's father
began fondling Tiffany when Delton and Gracie had walked to the back
of the truck to talk about their relationship and left the girl
alone with Dennis. Tiffany screamed and broke away from him and ran
to her sister, chased by the elder Dowthitt.
Dennis told Delton he had "messed up" and they
had to kill the girls and ordered Delton to strangle Tiffany with a
The father attempted to rape Gracie, then cut her
throat and subsequently took a beer bottle and sexually assaulted
Gracie with it. A bloody beer bottle was later found in the trash at
his used-car shop. Authorities lifted a fingerprint that matched
Dennis Dowthitt's left index finger. The blood was clearly
identified as belonging to Gracie.
He also stabbed Gracie in the chest with a knife.
Delton thought he had convinced a friend to help bury the girls but
the friend backed out on both visits to the remote wooded murder
When Delton was arrested in Metairie Louisiana,
he confessed to the murders but said he acted alone, however, his
stepmother told police that she knew her husband and his son were
together that night.
Dennis Dowthitt voluntarily went to the sheriff's
office for questioning and was confronted with the evidence that he
was with his son the night of the slayings. The elder Dowthitt then
admitted in a written statement that he was present at the time the
Purnhagen sisters were murdered but blamed the murders on his son.
At trial, Dennis's daughter testified that her
father had raped her, and also that he had confessed to the murders.
Testifying in the punishment phase of Dowthitt's capital-murder
trial, she said her father had been raping her with his hands,
bottles and broomsticks since she was 11. Delton was sentenced to 45
years and will be eligible for parole in 2003.
UPDATE: 3/8/01 - Just before he was executed,
Dowthitt for the first time offered an emotional confession for the
1990 sexual mutilation and murder of his son Delton's teen-age
Dowthitt, who for years said his son was
responsible for both murders, wept as he lay strapped to the
execution gurney, apologizing profusely for killing Grace Purnhagen.
"I am so sorry for what y'all had to go through. I am so sorry for
what all of you had to go through. I can't imagine losing two
children. If I was y'all I would have killed me. You know? I am
really so sorry about it, I really am. I got to go sister, I love
you. Y'all take care and God bless you. Gracie was a beautiful and
Tiffany was beautiful. You had some lovely girls and I am sorry. I
don't know what to say. All right Warden let's do it."
Dowthitt was obviously emotional and choking back
tears and looked directly at the girls' mother, Linda Purnhagen as
he spoke. "We thought he would be ugly because he had been arrogant
throughout the trial," Linda Purnhagen said in a press conference
following the execution. "I think (he meant his apology)," she said,
adding that she stared Dowthitt in the eyes as he made his last
Linda said she was surprised and relieved that he
admitted his guilt and apologized and she said she felt much less
anger towards him than she had the day before. When asked if she
said anything to the inmate as he looked at her, Linda replied, "I
didn't come here to say anything to him - I came to see him be
executed. The girl's father, Art Purnhagen said, "I was so shocked.
I would have bet a million dollars he wouldn't have apologized - I
would have lost my shirt on that one."
Linda Purnhagen compared witnessing the execution
to watching someone be put under anesthesia before surgery. "He's
just not going to wake up," she said, adding that Dowthitt's death
was "nothing like what (my daughters) had to go through."
Linda Purnhagen said her next mission will be
making sure Delton is not released from prison. She said he is up
for parole in July 2005.
When asked her reaction about the anti-death
penalty protesters rallying outside the Huntsville (Walls) Unit's
execution chamber, Linda Purnhagen said they likely have never had a
loved one murdered. "If they had gone through something like I have
and still felt that way, then I could talk to them about it," she
said. "If you haven't gone through it, you don't know what the heck
you're talking about."
About 8 to 10 anti-death penalty activists
protested against the execution, but nearly twice that many people
stood at the other end of the prison, to support the family of the
United States Court of Appeals for the Fifth
Dennis Thurl Dowthitt, Petitioner-Appellant
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee
Appeal from the United
States District Court for the Southern District of Texas
Before KING, Chief Judge, and
HIGGINBOTHAM and STEWART, Circuit Judges.
KING, Chief Judge:
Texas death row inmate Dennis
Thurl Dowthitt appeals from the district court's denial of habeas
corpus relief. In order to obtain review of his claims, Dowthitt
seeks a certificate of appealability (COA) from this court, pursuant
to 28 U.S.C. § 2253(c)(2). We deny Dowthitt's request for a COA.
I. FACTUAL AND PROCEDURAL
At Dowthitt's trial, the State
presented evidence that Dowthitt and his son, Delton Dowthitt ("Delton"),
age 16, picked up Gracie and Tiffany Purnhagen, ages 16 and 9,
respectively, on June 13, 1990 in a bowling alley parking lot.
According to Delton's testimony at Dowthitt's trial, Dowthitt
sexually assaulted Gracie with a beer bottle and cut her throat with
a knife. Meanwhile,
Delton strangled Tiffany with a rope.
Following a jury trial, Dowthitt
was convicted of the murder of Gracie Purnhagen committed in the
course of aggravated sexual assault. On October 9, 1992, based on
the jury's answers, Dowthitt was sentenced to death for capital
murder. The Texas Court of Criminal Appeals affirmed his conviction
and sentence on June 26, 1996. See Dowthitt v. State, 931 S.W.2d 244
(Tex. Crim. App. 1996).
On August 18, 1997, Dowthitt filed
a state petition for habeas relief. The state district court, on
March 6, 1998, entered findings of fact and conclusions of law and
recommended that habeas relief be denied. The Court of Criminal
Appeals, adopting most of the findings and conclusions, denied
Dowthitt habeas relief. See Ex Parte Dowthitt, No. 37,557 (Tex. Crim.
App. Sept. 16, 1998). On April 19, 1999, the United States Supreme
Court denied Dowthitt's petition for a writ of certiorari. See
Dowthitt v. Texas, 119 S. Ct. 1466 (1999).
After obtaining appointment of
counsel and a stay of execution, Dowthitt filed his petition for
habeas corpus relief in federal district court on December 30, 1998.
In response to Dowthitt's amended petition on February 12, 1999, the
State moved for summary judgment. The district court, on January 7,
2000, held an evidentiary hearing on Dowthitt's actual innocence
claim. On January 27, 2000, the district court filed a detailed and
careful Memorandum and Order and entered a final judgment, denying
Dowthitt habeas relief on all claims, dismissing his case with
prejudice, and denying Dowthitt's request for a COA. After the
district court denied his Rule 59(e) motion, Dowthitt timely
appealed to this court, requesting a COA and reversalof the district
court's judgment denying habeas relief.
Because Dowthitt's petition for
federal habeas relief was filed after April 24, 1997, this appeal is
governed by the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 100 Stat. 1214. See Molo v.
Johnson, 207 F.3d 773, 775 (5th Cir. 2000) ("Petitioners whose
convictions became final before the effective date of the AEDPA were
given a grace period of one year to file their federal habeas
petitions, rendering them timely if filed by April 24, 1997.").
Under AEDPA, a petitioner must first obtain a COA in order for an
appellate court to review a district court's denial of habeas relief.
See 28 U.S.C. § 2253(c)(1)(A).
28 U.S.C. § 2253(c)(2) mandates
that a COA will not issue unless the petitioner makes "a substantial
showing of the denial of a constitutional right." This standard "includes
showing that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further." Slack v. McDaniel, 120 S.
Ct. 1595, 1603-04 (2000) (internal quotations and citations omitted);
see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000).
The formulation of the COA test is
dependent upon whether the district court dismisses the petitioner's
claim on constitutional or procedural grounds. If the district court
rejects the constitutional claims on the merits, the petitioner "must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong." Slack,
120 S. Ct. at 1604. On the other hand,
[w]hen the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of a denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
Id. (emphasis added); see also
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
Furthermore, "the determination of
whether a COA should issue must be made by viewing the petitioner's
arguments through the lens of the deferential scheme laid out in 28
U.S.C. § 2254(d)." Barrientes v. Johnson, 221 F.3d 741, 772 (5th
Cir. 2000). We give deference to a state court decision for "any
claim that was adjudicated on the merits in State court proceedings"
unless the decision was either "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), or the decision "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding," 28 U.S.C. § 2254(d)(2).
The "contrary to" requirement "refers
to the holdings, as opposed to the dicta, of . . . [the Supreme
Court's] decisions as of the time of the relevant state-court
decision." (Terry) Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).
The inquiry into whether the decision was based on an "unreasonable
determination of the facts" constrains a federal court in its habeas
review due to the deference it must accord the state court. See id.
Under the "contrary to" clause, a
federal habeas court may grant the writ if the state court arrives
at a conclusion opposite to that reached by . . . [the Supreme Court]
on a question of law or if the state court decides a case
differently than . . . [the Supreme Court] has on aset of materially
indistinguishable facts. Under the "unreasonable application" clause,
a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from . . . [the
Supreme Court's] decisions but unreasonably applies that principle
to the facts of the prisoner's case.
Section 2254(d)(2) speaks to
factual determinations made by the state courts. See 28 U.S.C. §
2254(e)(1). While we presume such determinations to be correct, the
petitioner can rebut this presumption by clear and convincing
evidence. See id. Absent an unreasonable determination in light of
the record, we will give deference to the state court's fact
findings. See id. § 2254(d)(2).
Dowthitt seeks a COA from this
court on the following issues:
(1) actual innocence, (2) ineffective assistance of counsel, (3)
admission of DNA evidence without a factual predicate, (4) State
misconduct, (5) failure to instruct the jury on lesser-included
offenses, and (6) the district court's limited evidentiary hearing.
A. Actual Innocence
"Claims of actual innocence based
on newly discovered evidence have never been held to state a ground
for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding."
Herrera v. Collins, 506 U.S. 390, 400 (1993).
Rather, a claim of actual innocence is "a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits." Id. at 404. In order
for Dowthitt to obtain relief on this claim, "the evidence must
establish substantial doubt about his guilt to justify the
conclusion that his execution would be a miscarriage of justice
unless his conviction was the product of a fair trial." Schlup v.
Delo, 513 U.S. 298, 316 (1995) (emphasis added).
The Herrera Court did assume,
arguendo, "that in a capital case a truly persuasive demonstration
of 'actual innocence' made after trial would . . . warrant habeas
relief if there were no state avenue open to process such a claim."
506 U.S. at 417. However, this circuit has rejected this theory. See
Graham v. Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied,
120 S. Ct. 1830 (2000).
Thus, Dowthitt must first raise
substantial doubt about his guilt, which would then cause us to
examine any barred constitutional claims.
Dowthitt's main argument in support of his innocence is that his son
Delton confessed to killing Gracie.
Dowthitt bases this claim on thefollowing: a signed declaration by
his nephew Billy Sherman Dowthitt that Delton told him that "Delton
killed his girlfriend"; an unsigned affidavit of David Tipps, a
former prison inmate in Delton's prison block, stating that Delton
claimed to have killed both girls; a signed affidavit by Joseph Ward,
a defense investigator, who states he drew up the affidavit that
Tipps later refused to sign out of fear for himself; a signed
affidavit of James Dowthitt, Dowthitt's brother, that his son Billy
told him that Delton said he had killed both girls; and Dowthitt's
own written proffer of innocence.
Not finding it necessary to
conduct an evidentiary hearing, the state habeas court rendered its
decision based upon the record. The court found that Delton "did not
recant his trial testimony" that Dowthitt killed Gracie and that
Billy "never stated that Delton . . . said he killed both girls."
The federal district court did,
however, hold an evidentiary hearing on Dowthitt's actual innocence
claim. Delton again testified in this evidentiary hearing that his
father killed Gracie and that he never told Billy otherwise. The
court held Dowthitt's other proffered statements inadmissible
hearsay and found that even if Billy's statement were to be
considered, they failed to provide any convincing account of the
events. Determining, in addition, that the state findings were not
unreasonable, the district court held that Dowthitt's claim of
actual innocence fell far short of the threshold set by the Supreme
Court in Herrera.
We conclude that Dowthitt has not
raised "substantial doubt" as to his guilt. Dowthitt's newly
discovered evidence consists solely of affidavits, and these
affidavits are "particularly suspect . . . because they consist of
hearsay." Herrera, 506 U.S. at 417. What Delton allegedly told
others is hearsay and does not fall under any exception to the
hearsay rule. Cf. Fed. R. Evid. 804(b)(3) (statement against
interest exception requires that the declarant be unavailable, and
in this case, Delton, far from being unavailable, testified at trial
and at the district court's evidentiary hearing). Not only do
Dowthitt's proffers consist of hearsay (some with multiple levels),
one is also unsigned. As such, this evidence is not nearly strong
enough to raise a substantial doubt about Dowthitt's guilt. Cf.
Schlup, 513 U.S. at 331 (finding that the "sworn testimony of
several eyewitnesses that . . . [the petitioner] was not involved in
the crime" raised a sufficient issue that required an evidentiary
In addition, even if we were to
consider Billy's hearsay affidavit, we agree with the State that it
does not possess sufficient "indicia of reliability" due to its
inconsistency with the physical evidence. The physical evidence
established that Gracie (who was considered Delton's girlfriend)
died from knife wounds to her throat after being sexually assaulted,
while her younger sister Tiffany was strangled. Billy, however,
states that Delton said he strangled his girlfriend, while Dowthitt
sexually assaulted and stabbed the "little girl." As this does not
comport with the physical evidence, Billy's statements do not
provide us with a convincing account of the events.
Furthermore, what Dowthitt puts
forth is actually not "newly discovered" evidence. He presented the
substance of the affidavits at his trial. In particular, as the
state habeas court found, "Delton's first confession, in which he
stated that he killed both girls, was admitted in evidence." Delton
was cross-examined as to his plea agreement and his prior
Thus, the jury had the opportunity to take into account both
versions of the murders and determine whichwas more credible. The
jury, with the ability to listen to live testimony, was in a better
position to judge the credibility of the witnesses and the accounts
of the events; absent a lack of support in the record, we will not
second guess their determination. See United States v. Ramos-Garcia,
184 F.3d 463, 466 (5th Cir. 1999) (stating that the jury evidently
did not believe the alternative explanation of the events and that
the court would "'not second guess the jury in its choice'"); United
States v. Kaufman, 858 F.2d 994, 1004 (5th Cir. 1988) (finding that
it was a "serious mistake . . . to second-guess judgments that . . .
[were made] firsthand").
We find that Dowthitt's proffered
evidence establishing his actual innocence fails to raise a
substantial doubt as to his guilt.
B. Ineffective Assistance of
Dowthitt must make a substantial
showing of a denial of his Sixth Amendment right to counsel to
obtain a COA. His ineffective assistance of counsel claim meets the
threshold question under AEDPA, § 2254(d)(1), that the rule of law
be clearly established at the time of the state court conviction in
1992. This is so because the merits of an ineffective assistance of
counsel claim are governed by the well-established rule of
Strickland v. Washington, 466 U.S. 668 (1984). Dowthitt must
establish both prongs of the Strickland test in order to prevail.
First, he "must show that counsel's performance was deficient." Id.
at 687. Second, he "must show that the deficient performance
prejudiced . . . [his] defense." Id.
Deficient performance is
established by showing "that counsel's representation fell below an
objective standard of reasonableness." Id. at 688; Hernandez v.
Johnson, 213 F.3d 243, 249 (5th Cir. 2000). Moreover, as the Supreme
Court has counseled, a "fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight . . . and to evaluate the conduct from
counsel's perspective at the time." Strickland, 466 U.S. at 689.
Thus, our scrutiny of counsel's performance is highly deferential.
See id. We must be particularly wary of "argument[s] [that]
essentially come down to a matter of degrees. Did counsel
investigate enough? Did counsel present enough mitigating evidence?
Those questions are even less susceptible to judicial second-guessing."
Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999).
Prejudice ensues when "there is a
reasonable probability that, but for the counsel's unprofessional
errors, the result of the proceedings would have been different."
Clark v. Johnson, 227 F.3d 273, 282-83 (5th Cir. 2000) (internal
quotations omitted) (quoting Strickland, 466 U.S. at 694). "A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694.
In his ineffective assistance of
counsel claim, Dowthitt raises several sub-issues concerning his
mitigation defense, investigation, and closing arguments. We will
examine each of his claims in turn.
1. Failure to Present a
Mitigation Defense Based on Mental Illness
Dowthitt argues that trial counsel
failed to present a mitigation defense based on mental illness. In
support of this argument, Dowthitt points to several aspects of his
life and trial. He states that his habeas counsel located records
indicating he suffered from mental illness that were not discovered
by trial counsel. A 1964 re-admission form from Austin State
Hospital shows that a young Dowthitt was diagnosed as having a "schizophrenic
reaction" of a "chronic paranoid type" and was committed temporarily.
The admission history also states that when Dowthitt was
hospitalized due to an automobile accidentin August 1962, a test "showed
slight brain damage." In addition, Dowthitt points to Sergeant
Walter Blakeslee's statement of July 14, 1964 recommending that
Dowthitt be discharged from the Air Force. Blakeslee stated "it was
evident to . . . [him] that Airman Dowthitt was suffering from some
Dowthitt also relies heavily on
declarations from Dr. Paula Lundberg-Love and Dr. Faye E. Sultan,
mental health experts hired by habeas counsel. Lundberg-Love stated
that her "clinical impression was that . . . [Dowthitt] was not
sadistic or sociopathic." She further wrote that Dowthitt's "profile
was consistent with paranoid and schizophrenic features" and that he
suffers from depression. Sultan stated in her affidavit that the
interrogation videotapes showed Dowthitt's "severe mental problems"
and that the trial mental health expert's "examination was cursory."
She also wrote that Dowthitt "functions quite peacefully and
successfully within the prison environment," rebutting the
predictions made at trial about his potential for future
Dowthitt argues that trial
counsel's affidavits provide further support for their deficient
performance with regard to his mitigation defense. He states that,
by their own words, trial counsel did not investigate mental health
defenses because they "had no knowledge that Defendant suffered
brain damage," and "he appeared sane and competent at all times."
Dowthitt further quotes trial counsel's affidavit: "During our many
interviews Defendant never appeared to be suffering from any mental
problems other than being upset and unhappy about his circumstances."
Dowthitt asserts that such impressions on the part of trial counsel
were not reasonable because he was on anti-depressants during that
time, because his video-taped interrogation exposes his unstable
state of mind, and because the Lundberg-Love and Sultan declarations
confirm his mental illness.
Citing to Goss v. State, the State
responds that Texas caselaw has discounted mitigation evidence not
relevant to the crime or future dangerousness. 826 S.W.2d 162, 165 (Tex.
Crim App. 1992), cert. denied, 509 U.S. 922 (1993). The State
further argues that, even in the face of Dowthitt's repeated denials
of any mental problems, trial counsel retained a psychiatrist to
examine Dowthitt. The State also points out that Dowthitt received
funds for neuropsychological expert assistance during the state
habeas corpus proceedings, but that no evidence from that expert's
testing has ever been presented.
As for the reports of Lundberg-Love
and Sultan, the State asserts that they are precluded from
consideration because they were not presented to the state courts.
Further, the State claims that Dowthitt has not established cause
and prejudice for his failure to develop this evidence below.
Finally, citing to the district court's findings, the State argues
that even if the reports were considered, they are insufficient
because Lundberg-Love and Sultan appeared to have formed their
impressions from speaking with Dowthitt's habeas counsel.
In reply, Dowthitt argues that
under the Supreme Court's decision in (Terry) Williams v. Taylor,
the "nexus" requirement for mitigation evidence is erroneous. He
further states that although the State continuously refers to "brain
damage," he is contesting trial counsel's failure with regard to
"mental illness." And, Dowthitt asserts that the Lundberg-Love and
Sultan reports are not barred from consideration because he has
established "cause" via the denial of funding to obtain experts by
the state habeas courts.
As for Dowthitt's brain damage
claim, the state habeas court found that Dowthitt was competent to
stand trial, that no neuropsychological expert had found that
Dowthitt suffered from brain damage, and that Dowthitt exhibited no
signs ofbrain damage. These findings
are not unreasonable in light of the record, and Dowthitt has not
presented clear and convincing evidence rebutting their presumption
of correctness. Moreover, Dowthitt concedes these findings in his
reply brief by abandoning his initial reliance, in part, on brain
damage. He states that "mental illness . . . is the mitigation
evidence upon which . . . [he] bases his ineffectiveness claims."
As for the evidence indicating
"mental illness" (the Austin State Hospital and the Air Force
records), we are bound by the state habeas court's findings that
these records included "information which could have hurt . . . [Dowthitt's]
information included, among other data, the following: that Dowthitt
attempted to rape his eight-year old niece, that he had allegedly
molested the same girl when she was five, that he had an immature
personality (as opposed to psychotic tendencies), and that he "showed
a temper and insisted on having his own way." In light of these
details, the state habeas court's findings are clearly supported by
the record. See 28 U.S.C. § 2254(d)(2).
Thus, even assuming arguendo that
trial counsel were deficient in failing to discover these medical
Dowthitt was not prejudiced in his defense. See Buxton v. Lynaugh,
879 F.2d 140, 142 (5th Cir. 1989) ("Strickland allows the habeas
court to look at either prong first; if either one is found
dispositive, it is not necessary to address the other."). There is
no "reasonable probability" that the outcome would have been
different because the evidence was double edged in nature. As such,
trial counsel's actions in not discovering and presenting the
records to the jury to bring out indications of mental illness do
not create a "probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
The state habeas court did not
make additional findings dealing with Dowthitt's asserted mental
illness because Dowthitt did not present any other evidence to that
court. The Lundberg-Love and Sultan affidavits were introduced for
the first time to the district court on federal habeas review. Thus,
we must initially answer the threshold question of whether we are
precluded from considering these affidavits. Although both the State
and Dowthitt argue this issue as one of "factual development" under
§ 2254(d) and (e),
it is more accurately analyzed under the "exhaustion" rubric of §
"We have held that a habeas
petitioner fails to exhaust state remedies when he presents material
additional evidentiary support to the federal court that was not
presented to the state court." Graham v. Johnson, 94 F.3d 958, 968
(5th Cir. 1996) (emphasis added); see also Young v. Lynaugh, 821
F.2d 1133, 1139 (5th Cir. 1987), abrogation on other grounds
recognized by Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989);
Brown v. Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983). Furthermore,
"we are unwilling to . . . accommodate new factual allegations in
support of a previously asserted legal theory, even though these
factual allegations came into existence after the state habeas
relief had been denied." Joyner v. King, 786 F.2d 1317, 1320 (5th
Cir. 1986) (emphasis added).
Thus, we must first determine
whether this claim is before us "in a significantly different and
stronger evidentiary posture than it was before the state courts."
Joyner, 786 F.2d at 1320. We find that Dowthitt does not allege "new
facts" via the affidavits of the two experts because "all crucial
factual allegations were before the state courts at the time they
ruled on the merits" of Dowthitt's habeas petition. See Young, 821
F.2d at 1139; cf. Graham, 94 F.3d at 969 (finding no exhaustion in
the case because petitioner did present significant new facts in his
federal petition). Dowthitt had presented to the state habeas court
his assertions of mental illness of the schizophrenic, paranoid type.
The Lundberg-Love and Sultan affidavits add little to those claims.
While we find that consideration
of these affidavits is not precluded, we do not find them to
demonstrate a substantial showing of the denial of the Sixth
Amendment right to counsel. Even if trial counsel had obtained this
information, Dowthitt fails to demonstrate that such information
would have altered the jury's judgment. Sultan's affidavit is based
on her review of a portion of the paper record, and she did not
personally interview Dowthitt. We also agree with the district
court's assessment that "much of Dr. Sultan's initial declaration is
based on her discussions with habeas counsel rather than on
independent analysis" because her statements put forth information
that she could not have known otherwise.
Lundberg-Love's affidavit also
presents similar problems. She stated that she could have testified
to Dowthitt's mental trauma "that he was experiencing as a result of
witnessing Delton sexually assault Gracie after he had cut her
throat and kill her sister prior to . . . [Dowthitt's] arrival back
at the murder scene."
As the jury had decided not to believe Dowthitt's claims, this
version of the murders would not be credited during sentencing.
Therefore, even assuming arguendo that trial counsel's performance
Dowthitt fails to make a substantial showing of prejudice on this
Strickland claim as he does not demonstrate a sufficient probability
that the alleged errors of trial counsel undermined confidence in
the outcome. See, e.g., Boyd v. Johnson, 167 F.3d 907, 910 (5th
Cir.), cert. denied, 527 U.S. 1055 (1999) ("The potential negative
impact of the retardation evidence, in addition to the cold-blooded
nature of the murder and . . . [defendant's]other violent conduct,
persuades us that the outcome of the sentencing would not have been
different if counsel would have investigated further.").
2. Failure to Competently
Prepare and Use Dr. Fason
Dowthitt next asserts
constitutional error with regard to trial counsel's inadequate
development of Dr. Fred Fason's testimony. Counsel retained Dr.
Fason, a psychiatrist, to examine Dowthitt on several issues
regarding Dowthitt's mental state. Dowthitt argues that trial
counsel did not competently prepare Dr. Fason and did not call Dr.
Fason as a witness during trial.
The state habeas court noted the
integrity of trial counsel and found their affidavits to be credible.
In their affidavits, trial counsel stated that Dr. Fason had a "lengthy
interview" with Dowthitt and "spent many hours reviewing various
tapes and discussing this case" with counsel. Dowthitt, in turn,
points to Dr. Fason's May 13, 1992 notes and states that they "indicate
a very short jailhouse interview." He further asserts that he "remembers"
the interview being "exceedingly short." Dowthitt does not explain
how the notes "indicate" the length of the interview. Dowthitt's
personal beliefs, although they may be genuine, do not present clear
and convincing evidence that would rebut the state court's findings.
Dowthitt also asserts that trial
counsel did not request Dr. Fason to conduct an evaluation for
mitigation purposes. The State responds, however, that a letter in
trial counsel's files reveals that just such an evaluation was
requested. Dowthitt has failed to raise a substantial issue that
trial counsel was not reasonable in pursuing a mitigation defense.
In addition, Dowthitt contests
trial counsel's decision not to call Dr. Fason to testify on
Dowthitt's behalf at trial. He claims that Dr. Fason's report would
have demonstrated that he was not dangerous. This assertion fails to
meet the deficient performance prong of Strickland. Although Dr.
Fason's report contains some information relating to mitigating
factors, statements detrimental to Dowthitt are also included that
clearly indicate his unwillingness to testify in Dowthitt's favor.
Thus, trial counsel's decision not to put a witness on the stand who
himself is not entirely favorable toward Dowthitt, and furthermore,
who would have to respond with more damaging information during the
State's cross-examination, is not objectively unreasonable.
Trial counsel also elicited favorable information during cross-examination
of the State's expert witness, Dr. Walter Quijano.
This further supports the conclusion that the trial counsel's
decision not to put Dr. Fason on the stand was a matter of trial
strategy. See Strickland, 466 U.S. at 699.
Dowthitt also argues that trial
counsel should have found another expert who would be willing to
testify to Dowthitt'slack of future dangerousness based on his
mental condition. As the district court noted, even in the face of
Dowthitt's steadfast denial of any mental problems, trial counsel,
"in an abundance of caution," retained a psychiatrist. Thus, the
state habeas court finding that trial counsel were "relentless" in
their pursuit of Dowthitt's defense is not unreasonable. We also
find that "[t]rial counsel performed appropriately, recognizing the
possible issues regarding . . . [the defendant's] mental capacity,
recognizing the need for expert assistance in exploring these issues,"
and employing a defense expert. White v. Johnson, 153 F.3d 197, 207
(5th Cir. 1998) (emphasis added). Under the circumstances, trial
counsel was not deficient by not canvassing the field to find a more
favorable defense expert.
Dowthitt has failed to make a
substantial showing on this ineffective assistance counsel claim. We
find that reasonable jurists would not debate the propriety of
granting a COA on this issue.
3. Failure to Present
Dowthitt's Mercy-Evoking Background as Mitigation Through Family
Dowthitt claims that trial counsel
committed constitutional error by not presenting mitigation evidence
via family members during the punishment phase of the trial. He
argues that the following family members' affidavits demonstrate
that they would have testified to Dowthitt's abusive upbringing, his
mental difficulties, and his loving relationship with some of his
children: Darlene Glover, Dowthitt's sister; Stacey Dowthitt,
Dowthitt's step-son; and Danna Taft, Dowthitt's wife.
As an initial matter, the State
argues that consideration of these affidavits is barred on federal
habeas appeal because they were not presented to the state courts.
The State bases this argument on § 2254(d) and (e). As we explained
in section II.B.1, this issue is more appropriately analyzed under
the § 2254(b) exhaustion framework. Thus, if the case is in a
significantly stronger evidentiary framework before the federal
habeas court than it was before the state habeas court, the
exhaustion requirement has not been satisfied. See section II.B.1,
supra. Dowthitt replies that the substance of these affidavits was
presented to the state courts through the affidavits of the state
habeas investigator detailing his interviews with these family
members. We agree with Dowthitt that no "new facts" are presented to
us and that the state habeas court had the critical facts before it.
See Young, 821 F.2d at 1139. Thus, the exhaustion requirement of §
2254(b) has been satisfied.
The state habeas court found that
Dowthitt "did not want any of his family testifying on his behalf."
Counsel will not be deemed ineffective for following their client's
wishes, so long as the client made an informed decision. See Autry
v. McKaskle, 727 F.2d 358, 361 (5th Cir. 1984) ("By no measure can .
. . [the defendant] block his lawyer's efforts and later claim the
resulting performance was constitutionally deficient."). Dowthitt
contests the state habeas court's finding by arguing that he did not
understand the import of mitigating evidence (and trial counsel did
not even discuss it with him). We agree with the district court that
Dowthitt's personal belief (in a proffer submitted at the January 7,
2000 hearing) does not present clear and convincing evidence to
rebut the state court's finding.
In addition, trial counsel, in an
affidavit found to be credible by the state habeas court, stated
that they "attempted to talk to anyone" who would cooperate
and that many potential witnesses did not want to become involved.
Thus, trial counsel attempted to delve into Dowthitt's background,
but were hindered by external forces. Unlike trial counsel in (Terry)
Williams v. Taylor, 120 S. Ct. 1495 (2000), counsel's actions here
would be characterized as reasonable trial strategy because they
attempted to investigate Dowthitt's background and were thwarted by
uncooperative potential witnesses.
Trial counsel further stated in
their affidavit that some people who did speak with them had
knowledge of factors detrimental to Dowthitt. We have held that the
"failure to present . . . evidence would not constitute 'deficient'
performance within the meaning of Strickland if . . . [counsel]
could have concluded, for tactical reasons, that attempting to
present such evidence would be unwise." Williams v. Cain, 125 F.3d
269, 278 (5th Cir. 1997); cf. (Terry) Williams, 120 S. Ct. at
1497-98 (finding that counsel's tactical decision to focus on
defendant's voluntary confession, without undertaking any sort of
investigation into defendant's background, was not justifiable trial
Thus, Dowthitt has not made a
substantial showing that the actions of his trial counsel were
objectively unreasonable. As he fails to demonstrate sufficient
evidence to meet the deficient performance prong of the Strickland
test, he has not shown that the issue is debatable among reasonable
jurists. We therefore deny Dowthitt's request for a COA based on
this ineffective assistance of counsel claim.
4. Failure to Investigate for
the Guilt/Innocence Phase and the Punishment Phase
Dowthitt argues that trial counsel
did not adequately conduct their own investigation. In this regard,
he makes the following contentions: trial counsel did not interview
any significant State witnesses, "deferring" instead to the State's
version of the events without performing independent analysis; they
did not discover that Darla Dowthitt's own trial had been repeatedly
reset and did not inform the jury about her pending felony case for
indecency with a child; they failed to adequately impeach Delton by
not presenting his prior misconduct; and they did not follow through
on their own DNA testing.
The state habeas court found that,
based on the credible affidavits of trial counsel, "trial counsel
extensively reviewed the State's file and evidence collected in this
case." Trial counsel also stated in their affidavit that they hired
and psychiatrist experts. The record illustrates that these experts
made findings in line with the State's evidence. We find that trial
counsel did not blindly bow to the State's evidence and attempted to
dispute it. That they were not successful in their attempts does not
render their performance deficient.
The state habeas court also found
that "trial counsel investigated Delton's background." This finding
is reasonable in light of the record. Trial counsel knew about
Delton's prior misconduct and actually attempted to admit evidence
of thisduring trial. The trial court, however, excluded them (after
a hearing on the issue) as violating Texas Rule of Criminal Evidence
609(b). Dowthitt's only response to this is that the Texas rules of
evidence should be found offensive to the Constitution because they
unfairly and arbitrarily prejudiced his defense.
However, the very case that
Dowthitt cites for support recognizes that the fundamental fairness
concept works to discredit evidentiary rules in very limited
circumstances. See Fuller v. State, 829 S.W.2d 191, 207-08 (Tex.
Crim. App. 1992). The Fuller court emphasized that the Constitution
does not easily undo the rules of evidence:
Every rule of evidence works a
hardship on some litigants part of the time, and it is easy to
sympathize with the frustration of any party whose most promising
strategy turns out to be objectionable under the law. But we are not
at liberty to relieve every such disappointment with an ad hoc
suspension of the Rules.
Id. at 207. The Fuller court noted
that "the report Appellant sought to introduce in this case is
precisely the sort of thing which the hearsay rule, in spite of its
many exceptions, is still specifically designed to exclude." Id. at
208. Similarly, in this case, Dowthitt sought to introduce evidence
that went to the heart of the rules of evidence against using prior
misconduct to show conformity with the alleged conduct.
This is not the sort of instance that demands the use of the
Constitution to disregard fundamental evidentiary rules.
We also find that trial counsel's
performance was not deficient with regard to discovering Darla
Dowthitt's felony indictment for indecency with a child. Trial
counsel requested and received a discovery order for the criminal
record of all State witnesses. Dowthitt falls far short of
demonstrating deficient performance in this regard.
Dowthitt has not made a
substantial showing of ineffective assistance of counsel due to
inadequate investigation. As such, he is not entitled to a COA on
5. Inadequate Closing Arguments
at the Guilt/Innocence Phase and the Penalty Phase
Dowthitt argues that trial
counsel's closing arguments were inadequate because they undermined
their own case by misrepresenting facts and making unjustifiable
concessions. He focuses primarily on counsel's comments regarding
the DNA results. Trial counsel stated in closing argument, in
The blood, all right. There's been
testimony there's some blood on the bottle . . . . We get down here
to Picture 75 and 76 and we get a spot on the bottom that we know
was blood because they scraped that spot off and they sent it in and
the DNA people said 95 probably Gracie's blood. But that's on the
bottom and that's a little tiny bit and does that mean that the
bottle sat down in or rolled around or came near or got on a piece
of bloody clothing or in some other matter connected with the blood?
We assume that 95 percent is close enough that it is Gracie's blood.
It doesn't tell us how it got there.
State Trial Transcript, Vol. XXXIV
at 1270-71 (emphasis added). Dowthitt contends it was a plain
misstatement to convey that there was a ninety-five percent
probability the blood was Gracie's because the DNA test merely
revealed that ninety-five percent of the population was excluded,
with Gracie being among the five percent possible contributors of
Dowthitt further points to his expert's testimony on habeas that if
the jury had beeninformed of the significant number of people who
share that genetic profile, the jury would have more accurately
assessed the evidence.
The state habeas court found that
"trial counsel were zealous advocates for . . . [Dowthitt's] defense
during closing argument." Dowthitt falls far short of producing
clear and convincing evidence to rebut the presumption of
correctness we afford this finding under AEDPA. While counsel's
characterization of the test results were not entirely on point, the
closing arguments as whole were thorough and effective. The record
demonstrates that trial counsel drove home the point that the DNA
evidence did not tie Dowthitt to the crime -- that the blood could
have gotten on the bottle in any number of other ways. We find
without reservation that trial counsel's performance was sufficient
in this regard.
Dowhtitt also argues that trial
counsel was deficient during the closing arguments for the penalty
phase. Dowthitt faults trial counsel for statements that Dowthitt
suffered from a "disease" that resulted in his acting in a "frenzy,
like the feeding of a shark or something." Dowthitt also asserts
that trial counsel "'argued' against Mr. Dowthitt being a future
danger by positing that his only victims in prison would be 'effeminate
Dowthitt cannot manufacture
deficient performance by selectively extracting phrases from trial
counsel's closing argument and mischaracterizing them. While we
would not endorse every aspect of trial counsel's statements,
nevertheless, taken in full context, those statements for the most
part were beneficial because they went toward demonstrating that
Dowthitt's actions were not deliberate
and that he did not present a continuing danger.
Furthermore, we note we have held that counsel's acknowledgment of
aspects of the case can be a proper "effort to bolster credibility
with the jury." Kitchens v. Johnson, 190 F.3d 698, 704 (5th Cir.
1999). We will not second guess such strategic decisions under the
teaching of Strickland.
Dowthitt's assertions regarding
trial counsel's closing arguments fail to demonstrate substantial
doubt on his Sixth Amendment right. As such, he is not entitled to a
COA on this ineffective assistance of counsel claim.
In sum, the state habeas court
found "trial counsel were relentless in the defense of their client
in the face of a very bad set of facts." In addition, the court
found that Dowthitt failed "to show that the outcome of his trial
would have been different but for the alleged instances of
ineffective assistance of counsel." Dowthitt has not presented clear
and convincing evidence to rebut the presumption of correctness we
afford to state court findings under AEDPA. Furthermore, our review
also reveals that the state court was not unreasonable in its
finding in light of the record. We therefore find that Dowthitt has
not demonstrated a substantial showing of the denial of his
constitutional right to counsel, and we deny his application for a
COA on this claim.
C. Admission of DNA Evidence
Without a Factual Predicate
Dowthitt argues that he was denied
due process of law under the FourteenthAmendment when DNA evidence
was admitted at trial without a proper factual predicate. Pointing
to the lack of a prior hearing to determine the admissibility of the
DNA evidence, Dowthitt asserts that his constitutional rights were
violated. The state habeas court found that Dowthitt "failed to
object to the trial court's failure to hold a hearing on the
reliability of the DNA evidence and waived any error."
In all cases in which a state
prisoner has defaulted his federal claims in state court pursuant to
an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
Coleman v. Thompson, 501 U.S. 722,
750 (1991). The state procedural rule at issue in this instance is
adequate because it has been "strictly or regularly followed." Amos
v. Scott, 61 F.3d 333, 339 (5th Cir. 1995). "This Circuit has held
that the Texas contemporaneous objection rule is strictly or
regularly applied evenhandedly to the vast majority of similar
claims, and is therefore an adequate procedural bar." Corwin v.
Johnson, 150 F.3d 467, 473 (5th Cir. 1998).
As for the cause-and-prejudice
exception, cause is demonstrated by establishing that some objective
external factor "'impeded counsel's efforts to comply with the
State's procedural rule.'" Meanes v. Johnson, 138 F.3d 1007, 1011
(5th Cir. 1999) (quoting Coleman). Dowthitt maintains that cause
existed for his default. The failure to object he contends, is the
result of trial counsel's ineffectiveness. "[C]ounsel's
ineffectiveness will constitute cause only if it is an independent
constitutional violation." Coleman, 501 U.S. at 755; see also Ellis
v. Lynaugh, 883 F.2d 363, 367 (5th Cir. 1989) (citing Murray v.
Carrier, 477 U.S. 478, 488 (1986)). Dowthitt puts forth two
arguments to establish that counsel's ineffective assistance was of
constitutional dimension: (1) counsel's failure to request the
hearing and (2) counsel's concession that the blood from the bottle
was conclusively Gracie's.
First, Dowthitt does not provide
further detail (beyond his assertion) as to why the failure to
object rose to the level of a Sixth Amendment violation. Because
this issue is inadequately briefed, we do not consider it on appeal.
See Trevino, 168 F.3d at 181 n.3. Furthermore, we have previously
held that a mere allegation "that . . . [trial counsel] provided
ineffective assistance of counsel in failing to so object" is not
sufficient to establish constitutionally prohibited conduct.
Washington v. Estelle, 648 F.2d 276, 278 (5th Cir. 1981) (stating
that it is "not for federal courts to speculate as to possibly [sic]
reasons for failure to object." (internal quotations and citation
omitted)). Dowthitt's second argument for cause also fails because
we found in section II.B.5 that trial counsel's statements regarding
DNA evidence did not rise to the level of constitutional error.
Dowthitt also cannot rely on the
"fundamental miscarriage of justice" exception to the procedural bar
because he did not demonstrate substantial doubt as to his actual
innocence. See section II.A, supra; see also Fearance v. Scott, 56
F.3d 633, 637 (5th Cir.), cert. denied, 515 U.S. 1153 (1995) (rejecting
the defendant's attemptto expand the "narrow scope" of the
fundamental miscarriage of justice exception).
Thus, we find that Dowthitt's
claim regarding the admission of DNA evidence is procedurally barred
from federal habeas review.
We deny Dowthitt's request for a COA on this claim because he does
not demonstrate that reasonable jurists would find it debatable that
the procedural ruling was correct.
D. State Misconduct
Dowthitt argues that state
misconduct violated his right to due process and a fair trial. In
this regard, he makes the following claims: intimidation of
potential defense witness David Tipps, breach in the chain of
custody of the blood sample, misrepresentation of the DNA evidence
to the jury, failure to disclose a felony indictment of a State
witness Darla Dowthitt, and mischaracterization of Dowthitt's
interrogation statement that he "was there the whole time." We will
address each of these arguments in turn.
1. Intimidation of Potential
Dowthitt first asserts that David
Tipps, Delton's jailmate, would have testified that Delton claimed
he killed both girls; however, after a visit from two State
investigators, Tipps refused to testify. Dowthitt submits the
affidavit of Joseph Ward, his state habeas investigator, in support
of the claim that the State agents intimidated Tipps into not
testifying. Ward states in his affidavit that Tipps would not sign
an affidavit out of fear for himself.
We must first decide whether this
claim was "adjudicated on the merits in State court proceedings." 28
U.S.C. § 2254(d). The state trial court held a hearing outside the
presence of the jury on this issue, and Dowthitt contested the trial
court's ruling on direct appeal. See Dowthitt v. State, 931 S.W.2d
244, 267 (Tex. Crim. App. 1996). However, Dowthitt did not raise
this issue in his state habeas proceeding, but did do so in his
brief to the federal district habeas court.
"When faced with a silent or
ambiguous state habeas decision, the federal court should 'look
through' to the last clear state decision on the matter." Jackson v.
Johnson, 194 F.3d 641, 651 (5th Cir. 1999). Although the state
habeas decision is silent on this particular misconduct claim, the
Texas Court of Criminal Appeals, on direct appeal, unambiguously
dealt with the issue. "Having determined that the issue was
adjudicated on the merits in state courts, we owe deference to their
disposition of the claim under § 2554." Barrientes, 221 F.3d at 780.
The Court of Criminal Appeals
determined that Tipps's fears of being a "snitch," rather than a
fear of prosecution, motivated his decision not to testify in
Dowthitt's defense. It based this holding, in part, on Tipps's
continued defiance even in the face of the trial court holding him
in contempt. We conclude that reasonable jurists could not debate
whether the decision of the Court of Criminal Appeals was"contrary
to, or involved an unreasonable application of, clearly established
. . . [Supreme Court] law." 28 U.S.C. § 2254(d)(1). As such,
reasonable jurists could not "debate whether (or, for that matter,
agree that) the petition should have been resolved in a different
manner." Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000). We find
that Dowthitt is not entitled to a COA on this state misconduct
2. Breach in the Chain of
Custody of the Blood Sample
Dowthitt claims that the blood
from which the DNA was extracted originally came from a knife, and
not a beer bottle, as presented at trial. In support, he offers the
photograph of an evidence label that has the typewritten words "scrapings
from lock blade knife" crossed out and replaced with the handwritten
words "from bottle." Dowthitt argues that the State thus presented
false testimony, violating his Fourteenth Amendment rights.
The state habeas court made
several findings in this regard, including: "no blood scrapings
other than those from a beer bottle recovered from [Dowthitt's] shop
were submitted for testing"; "'scrapings from lock blade knife' [on
evidence label] was in error"; "only scrapings from a bottle, and
not a knife, were submitted for DNA testing."
These findings are not
unreasonable "in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(2). Given the high deference we
accord to state court determinations, we find that reasonable
jurists would not debate whether it should be have been resolved in
a different manner, and as such, we deny to issue a COA on this
3. Misrepresentation of DNA
Evidence to the Jury
Dowthitt argues that the State
misrepresented the conclusiveness of the DNA evidence to the jury
during closing arguments. He contests the following statement: "You
know it is Gracie's blood on that beer bottle."
First, we need to consider if this
claim was adjudicated on the merits during state proceedings for §
2254(d) deference purposes. Dowthitt failed to object to this
statement during trial and did not raise it on direct appeal. He did
argue the issue during state habeas proceedings, but the state
habeas court made no findings in this regard. Therefore, we must
examine the following factors to determine whether an adjudication
was on the merits occurred:
(1) what the state courts have
done in similar cases; (2) whether the history of the case suggests
that the state court was aware of any ground for not adjudicating
the case on the merits; and (3) whether the state courts' opinions
suggest reliance upon procedural grounds rather than a determination
on the merits.
Green v. Johnson, 116 F.3d 1115,
1121 (5th Cir. 1997).
As for the first factor, Texas
courts have consistently held that unless the prosecutor's comments
were "clearly calculated to inflame the minds of the jurors and is
of such character as to suggest the impossibility of withdrawing the
impression produced," the failure to object timely waives any error.
Van Zandt v. State, 932 S.W.2d 88, 93 n.1 (Tex. App. -- El Paso
1996, pet. ref'd). We find that the prosecutor's argument in this
case does not fall within the exception to the failure to make a
contemporaneous objection. As Dowthitt did not object at trial, the
first factor points toward an adjudication on the merits.
Similarly, the history of the case
also favors adjudication on the merits. Rather than arguing the
contemporaneous objection rule, the State addressed this claim on
the merits the first time it was raised, in federal habeas
proceedings. As for thethird factor, we have previously held that
under Texas law, "a denial of relief by the Court of Criminal
Appeals serves as a denial of relief on the merits." Miller v.
Johnson, 200 F.3d 274, 281 (5th Cir. 2000). Thus, the state court's
denial of habeas relief does not indicate a procedural adjudication.
We find that an "adjudication on
the merits" under § 2254(d) occurred with regard to this state
misconduct claim. Therefore, we conduct a deferential review, as
mandated by AEDPA. We next proceed to analyze whether Dowthitt made
a substantial showing of the denial of his due process and fair
In habeas corpus proceedings, we
review allegedly improper prosecutorial statements under a strict
standard. "The statements must render the trial fundamentally unfair."
Barrientes, 221 F.3d at 753. "[I]t is not enough that the
prosecutors' remarks were undesirable or even universally condemned.
The relevant question is whether the prosecutors' comments so
infected the trial with unfairness as to make the resulting
conviction a denial of due process." Darden v. Wainwright, 477 U.S.
168, 181 (1986) (internal quotations and citations omitted).
We have held that "[i]n the
context of closing argument, . . . [the prosecutor is not]
prohibited from reciting to the jury those inferences and
conclusions she wishes the jury to draw from the evidence so long as
those inferences are grounded upon evidence." United States v. Munoz,
150 F.3d 401, 414-15 (5th Cir. 1998), cert. denied, 525 U.S. 1112
(1999) (internal quotations omitted). In this case, the prosecutor's
statement is a reasonable one, requesting the jury to draw a desired
conclusion based upon the evidence.
As such, we find that the state
court denial of Dowthitt's claims reasonable under the standards set
forth by § 2254(d). Dowthitt does not demonstrate a substantial
showing of the denial of his due process rights and, therefore, is
not entitled to a COA in this regard.
4. Failure to Disclose Felony
Indictment of State Witness
Dowthitt argues that the State
failed to disclose that Darla Dowthitt, Dowthitt's daughter, was
under felony indictment (indecency with a child) when she testified
for the prosecution at the guilt/innocence phase of the trial.
Pointing to the fact that Darla's own trial date was reset several
times, Dowthitt claims that an oral agreement had been struck
between the State and Darla. Thus, the nondisclosure violated the
Supreme Court's mandate in Brady v. Maryland, 373 U.S. 83 (1963).
The State responds that no deal was struck for Darla's testimony,
and as such, Dowthitt has no viable Brady claim.
The suppression of evidence
material to guilt or punishment violates a defendant's fundamental
due process rights. See id. at 87. The Court has "since held that
the duty to disclose such evidence is applicable even though there
has been no request by the accused, and that the duty encompasses
impeachment evidence as well as exculpatory evidence." Strickler v.
Greene, 527 U.S. 263, 280 (1999) (citations omitted). Such evidence
is material "if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different." Kyles v. Whitley, 514 U.S. 419, 433
(1995) (internal quotations and citations omitted).
"To prevail on a Brady claim, the
defendant must [thus] demonstrate that (1) the prosecution
suppressed evidence; (2) the evidence was favorable to him; and (3)
the evidence was 'material either to guilt or punishment.'" Vega v.
Johnson, 149 F.3d 354, 363 (5th Cir. 1998), cert. denied., 525 U.S.
1119 (1999). In this case, there is no dispute that the indictment
existed and the prosecution did not reveal it to the defense. This
evidence arguably would have been favorable to Dowthitt's case.
While the first two prongs of the
test have been satisfied here, Dowthitt fails on the third prong --
materiality. "The existence of an indictment, as opposed to a
conviction, is not generally admissible to impeach." Id. (citing as
example Michelson v. United States, 335 U.S. 469, 482 (1948)). "Under
Texas law, the existence of the indictment becomes admissible only
if the witness, on direct examination, misrepresents himself as
having no trouble with the law . . . . The only other exception, for
witnesses whose testimony might be affected by the indictment . . .
[is a] relationship between [the] prosecution and [the witness's]
case." Id. (internal quotations and citation omitted).
First, Darla made no such
misrepresentations, and thus the first exception would not have
applied. Dowthitt also cannot rely on the second exception. The
state habeas court found that the "prosecutors did not offer Darla a
deal for her testimony and did not reset her case to avoid a felony
conviction for impeachment purposes." We presume this finding to be
correct under § 2254(e)(1). Dowthitt has not clearly and
convincingly refuted the evidence in the record supporting the state
court's determination that no suppression of evidence occurred
because no deal even existed.
We find that Dowthitt fails to
demonstrate the requisite "reasonable probability" that the outcome
would have been different. Thus, he does not make a substantial
showing of the denial of a constitutional right and is not entitled
to a COA on this claim.
5. Mischaracterization of
Dowthitt's Interrogation Statement
Detective Hidalgo testified during
the guilt/innocence phase that Dowthitt stated during the
interrogation, "I was there the whole time."
Dowthitt asserts that this statement was misrepresented as a
admission of being present at the scene. He claims that the video of
the interrogation demonstrates that Dowthitt was actually indicating
disbelief by repeating the statement.
As we have done in Part II.D.2 and
II.D.3, supra, we must first determine whether an adjudication on
the merits occurred in state courts. With no statement from the
habeas court directly on point, we are directed to look through to
the last clear state decision on the issue. See Jackson v. Johnson,
194 F.3d 641, 651 (5th Cir. 1999). On direct appeal, the Texas Court
of Criminal Appeals found thatDowthitt's "admission to being present
during the murders occurred around 1:00 a.m." Dowthitt v. State, 931
S.W.2d 244, 253 (Tex. Crim. App. 1996). Thus, we find that this
issue was adjudicated on the merits in state proceedings, and we
examine the result with the deference demanded by AEDPA. See 28
U.S.C. § 2254(d).
Beyond his assertions that he did
not make an admission, Dowthitt does not demonstrate that the state
court's adjudication was unreasonable in light of the record.
Thus, reasonable jurists would not "debate whether . . . the
petition should have been resolved in a different manner." Slack v.
McDaniel, 120 S. Ct. 1595, 1603-04 (2000). Accordingly, we deny
Dowthitt a COA on this claim.
E. Instruction on Lesser-Included
Dowthitt argues that the trial
court erred in failing to instruct the jury on lesser-included
offenses of murder, felony murder or aggravated sexual assault, thus
violating his rights under the Fifth, Sixth, Eighth, and Fourteenth
asserts that evidence existed that would support convictions on the
lesser crimes, as opposed to capital murder: the beer bottle with
Gracie's blood indicated sexual assault, but not murder; the knife
alleged to be the murder weapon was not connected to the sexual
assault; and the jury knew that Delton confessed to killing both
girls in his first confession. The State responds that one cannot
base an argument for a lesser-included offense on the jury
disbelieving portions of the State's case. In reply, Dowthitt
maintains, given that no relevant physical evidence actually
connected him to the murder, the jury had before it multiple
scenarios, which lead to different crimes.
We do not agree because Dowthitt
fails make a substantial showing that his case met the requirements
that would necessitate instructions on lesser-included offenses.
Contrary to Dowthitt's assertions, "[i]t is not enough that the jury
may disbelieve crucial evidence pertaining to the greater offense.
Rather, there must be some evidence directly germane to a lesser-included
offense for the factfinder to consider before an instruction on a
lesser-included offense is warranted." Jones v. Johnson, 171 F.3d
270, 274 (5th Cir. 1999; see also Banda v. State, 890 S.W.2d 42, 60
(Tex. Crim. App. 1994) ("The credibility of the evidence and whether
it conflicts with other evidence or is controverted may not be
considered in determining whether an instruction on a lesser-included
offense should be given.").
As such, Dowthitt has not
presented clear and convincing evidence to rebut the state habeas
court's finding that "there was no evidence showing that [Dowthitt]
was guilty [only] of the lesser offenses of rape and murder."
Dowthitt thus fails to demonstrate that reasonablejurists would
debate the propriety of not granting an instruction for lesser-included
offenses. With no substantial showing on this claim, Dowthitt does
not meet the requirement for a COA.
F. District Court's Evidentiary
Dowthitt asserts that the district
court erred in providing only a limited evidentiary hearing on his
actual innocence claim and in not holding a hearing on his other
claims. He argues that the lack of factual development below was not
due to his actions or lack thereof. Dowthitt faults particularly the
state habeas court judge's actions. He states that the judge who
presided over his state district court habeas proceedings, had
recused himself from trial because one of the trial counsel was his
own attorney in a divorce proceeding. The judge, however, did not
recuse himself from the habeas proceedings, refused to conduct an
evidentiary hearing on the habeas claims, and accepted verbatim the
prosecution's proposed findings.
Section 2254(e)(2) guides our
determination of whether these requested evidentiary hearings were
appropriate in this case. "If an applicant had failed to develop the
factual basis of a claim in State court proceedings," the federal
court may hold an evidentiary hearing if:
(i) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(ii) a factual predicate that
could not have been previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim
would be sufficient to establish by clear and convincing evidence
that but for the constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
"Under the opening clause of §
2254(e)(2), a failure to develop the factual basis of a claim is not
established unless there is a lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner's counsel."
(Michael) Williams v. Taylor, 120 S. Ct. 1479, 1488 (2000).
Furthermore, the (Michael) Williams Court associated the "failure to
develop" standard with the cause inquiry for procedural default. See
id. at 1494.
Dowthitt argues that he exercised
due diligence because he requested evidentiary hearings in state
habeas proceedings, and those requests were denied. Thus, he asserts
that his failure to develop his habeas claims are excused under §
2254(e)(2). We do not agree. Mere requests for evidentiary hearings
will not suffice; the petitioner must be diligent in pursuing the
factual development of his claim. As the state habeas court found,
Dowthitt did not present affidavits from family members and did not
show that they "could not be obtained absent an order for discovery
or a hearing." In response, Dowthitt now argues that his "proffers"
of what would be presented at a hearing constituted due diligence.
We do not find his argument persuasive. Given that the family
members were willing to testify at a hearing, Dowthitt could have
easily obtained their affidavits. A reasonable person in Dowthitt's
place would have at least done as much. Dowthitt's arguments that
lack of funding prevented the development of his claims are also
without merit. Obtaining affidavits from family members is not cost
prohibitive. Thus, Dowthitt has not rebutted the state habeas
finding in this regard.
We find that Dowthitt has not made
a substantial showing of meeting the requirements set forth in §
2254(e)(2) that would entitle him to a federal habeas evidentiary
hearing. As such, he is not entitled to a COA on this claim.
For the foregoing reasons, we DENY
Dowthitt's request for a COA on all of his claims and VACATE the
stay of execution.