Rape - Robbery
Number of victims: 1
Date of murder:
Date of birth: January 16,
Victim profile: Linda "Suzie"
Malek (female, 30)
Method of murder:
Location: Matagorda County, Texas, USA
by lethal injection in Texas on August 15,
The United States Court
For the Fifth Circuit
Eight year old Ashley testified at trial that she was awakened in the
night at her home by her mother screaming, “Oh my God. Help me.” She saw
two men who had broken into the home, with bandanas over their face, one
with a gun, telling she and her mother to get on the floor.
As Ashley, her six year old brother,
and her mother, Linda Suzie Malek, lay on the floor crying, they
demanded to know the location of any jewelry. Ashley described how her
mother was then raped, then shot twice in the head. The men threatened
Ashley then stole their car.
After 30 minutes or so, Ashley called
her grandparents and told them that two men had "broken into the house
and shot Mommy." Much of the property that was stolen from the home was
later recovered from the apartment of Monica Silva, Parr’s girlfriend.
Silva recounted how Parr had confessed
the burglary and murder to her. Michael Jiminez, Parr’s half-brother and
accomplice, also confessed and was later convicted and sentenced to life
Parr v. Quarterman, 472 F.3d 245 (5th Cir. 2006) (Habeas).
"I just want to tell my family I love y'all, man. Keep your head up,
Texas Department of
Inmate: Parr, Kenneth
Date of Birth: 01/16/1980
Date Received: 06/07/1999
Education: 11 years
Date of Offense: 01/21/1998
County of Offense: Matagorda
Native County: Matagorda County, Texas
Hair Color: Black
Eye Color: Brown
Height: 05' 06"
Weight: 164 lb
Co-defendants: Michael Wayne Jiminez
Prior Prison Record: None
Date of Birth
(at the Offense)
On 01/21/98 in Bay City, Parr and one co-defendant robbed,
sexually assaulted, and murdered a 30-year old white female.
Parr and the co-defendant,
while masked, burst into the residence of the victim through the
Parr and the co-defendant,
armed with handguns, entered the victim's bedroom and sexually
assaulted the victim.
Parr and the co-defendant
then ransacked the home, robbing the victim of money and
fatally shot the victim one time in the head.
The victim's 2
small children were in the residence at the time of the offense
and observed Parr and the co-defendant flee the residence with
car keys belonging to the victim.
Parr stopped and
asked one of the children how to operate the car. When they were
unable to start the car, they fled on foot.
Gender of Victim
Texas Attorney General
Thursday, August 9, 2007
Media Advisory: Kenneth Parr scheduled for execution
AUSTIN – Texas Attorney General Greg Abbott offers
the following information on Kenneth Parr, who is scheduled to be
executed after 6 p.m. Wednesday, August 15, 2007. Parr was sentenced to
death for capital murder for the rape and robbery of Linda “Suzie” Malek.
A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
On the evening of January 20, 1998, Charlotte Brown
talked on the phone to her 28-year-old daughter, Linda “Suzie” Malek and
made plans to visit with her and her two children, 8-year-old Ashley and
six-year-old Zachary the following day at Charlotte’s home. The phone
conversation was last time Charlotte heard her daughter’s voice.
At about 2 a.m. the next day, Charlotte and her
husband, Mike, received a call from Ashley who stated that two men had
broken into their house. On the way over to her daughter’s house,
Charlotte used her cell phone to call Ashley. Charlotte asked her, “Is
Mommy all right?” “No,” Ashley told her, “they shot her.” Ashley also
said her mother was not talking.
The first thing Charlotte and Mike noticed as they
approached Suzie’s home was Suzie’s car blocking the driveway. Mike
testified he knew then, “that wasn’t normal.” Mike also said that the
living room was a mess. Papers were scattered in front of the sofa and
the entertainment center, and the television was missing.
The children’s Sega Saturn game was also missing from
its usual place in the entertainment center. The VCR was gone, too. In
addition, much of Suzie’s jewelry was missing, along with her purse and
the keys to her car.
Charlotte and Mike found Suzie lying face-down on the
floor in her bedroom. Ashley recounted the crime for her grandparents.
She said she had her eyes closed and was holding her mother’s hand. “She
was squeezing it so tight it hurt. . . . Mommy was begging them not to
shoot her. . . . And they shot her twice.”
Ashley took the stand at Kenenth Parr’s trial to tell
the jury in her own words what she remembered of that horrific night.
She, her mother, and Zachary had gone to bed that night after watching
David Letterman. Later, Ashley was awakened by her mother’s screaming,
“Oh my God. Help me.” Ashley said they were all terrified.
Two men, one short and one tall, wearing mask-like
bandanas were standing in the doorway to the bedroom. According to
Ashley, one of them had a gun. Ashley said they were told to get on the
floor. “They said to keep your faces to the floor because they didn’t
want us to see.”
Ashley said that as the three of them lay on the
floor crying, the two men called her mother dirty names. They asked her
if she had a gun. When she said no, they told her that “if they found
one, she was dead.” The two men also wanted to know if Suzie had a
jewelry box; she had two. Suzie told them where her jewelry was. Ashley
then described the rape her mother was forced to endure.
Finally, the men shot Suzie twice in the head. Ashley
recalled one of the men asking her where the keys to her mother’s car
were. She told them, and they left. One then came back and asked her how
to start the car; it had a standard transmission. Ashley explained that
the clutch would have to be pushed in.
The assailant left, threatening to come back. After
thirty minutes, and still afraid the men would return, Ashley called her
grandmother and told Mike what had happened. When her grandmother asked
if they had tried to wake their mother up, Ashley told her no “[b]ecause
I knew that she was gone.”
Much of the property that was stolen from Suzie’s
home was recovered from the apartment of Monica Silva, Parr’s girlfriend.
The apartment complex she lived in was across the street from Suzie’s
home. Some of the evidence, including Suzie’s purse, was recovered from
a dumpster outside Silva’s apartment.
Finally, Parr confessed to the burglary of Suzie’s
home. In the early morning hours after the murder, Parr was at Silva’s
apartment. He told her he “had really messed up this time.” He said that
“he had gone into a place and burglarized this place. This time he had
gone in with a gun.” Michael Jiminez, Parr’s brother and accomplice in
the burglary, rape, and murder confessed too.
He said, “Me and Kenny did that. . . . We’re the ones
who killed that lady.” Jiminez also said that the robbery had been
planned. “They were going to kick down the door and go in there. They
were sitting outside talking about what they were going to do before
they went and did it.” Jiminez said he and Parr shot Suzie twice in the
head. Finally, Jiminez said, “We were going to kill the kids, but the
gun messed up.”
April 15, 1998 — A Matagorda County grand jury
indicted Parr for capital murder.
April 12, 1999 — A jury found Parr guilty of capital
murder and following a separate punishment hearing, the court assessed a
sentence of death.
March 7, 2001 — Parr’s conviction and death sentence
were affirmed by the Texas Court of Criminal Appeals. Parr did not seek
appeal to the U.S. Supreme Court.
December 5, 2000 — Parr filed a state application for
writ of habeas corpus.
November 13, 2002 — The Texas Court of Criminal
Appeals denied habeas relief.
November 13, 2003 — Parr filed a federal petition for
writ of habeas corpus.
July 27, 2004 — The federal district court denied
habeas relief on all claims.
December 7, 2006 — The 5th Circuit Court of Appeals
affirmed the district court’s denial of habeas relief.
March 7, 2007 — Parr sought certiorari review in the
U.S. Supreme Court.
June 18, 2007 — The Supreme Court denied certiorari
December 20, 2006— The trial court set execution date
for August 15, 2007.
PRIOR CRIMINAL HISTORY
Parr’s extensive criminal history includes
convictions for burglary of a habitation and assault. Parr was on parole
at the time of the capital murder. He also has a history of domestic
Texas inmate executed for
rape-slaying during home robbery
By Michael Graczyk
Associated Press - Aug. 16, 2007
HUNTSVILLE, Texas — Condemned inmate Kenneth Parr
failed to follow through on threats to harm Texas corrections officials
and quietly went to his death for the rape and fatal shooting of a woman
during a break-in at her Southeast Texas home nearly 10 years ago.
Parr, 27, had only a brief final statement Wednesday
evening as he received a lethal dose of drugs, responding "Yeah" when
asked by the warden if he had anything to say. "I just want to tell my
family I love y'all, man," he said. "Keep your head up, y'all."
Nine minutes later, he was pronounced dead. Several
distraught relatives, including his mother, were overcome with grief as
they watched him die and sobbed uncontrollably. On another separate side
of the chamber, relatives of his victim, including her mother, watched
quietly through a window. Parr never looked at them.
His threats of violence also never materialized. "From
all accounts, he was not a problem, not aggressive or assaultive with
the staff," Texas Department of Criminal Justice spokeswoman Michelle
Lyons said. "He made his way willingly to the execution chamber. We're
Parr was only a few days past his 18th birthday when
authorities said he and a younger brother kicked in the door of 30-year-old
Linda Malek's trailer home, stole a television and VCR and video game,
among other things, raped the woman and then shot her to death. Her
children — 8 and 6 years old at the time — were in bed with her during
The execution was the 20th this year in Texas, the
nation's busiest death penalty state, and the 399th overall since Texas
resumed carrying out capital punishment in 1982. The 400th is set for
The last appeals to block the execution were rejected
by the U.S. Supreme Court about two hours before he died.
Parr already was on probation after juvenile burglary
and assault convictions when he was arrested for the Malek slaying. The
woman and her children lived across the street from the apartment where
Parr and his brother were staying with a friend.
After convicted of her murder and sent to death row,
prison records show he continued to pile up disciplinary infractions. In
the weeks preceding his execution, officials took the rare step of
putting him off-limits for media interviews because he had threatened to
harm prison officers.
Steven Reis, the Matagorda County district attorney
who prosecuted Parr, said that was no surprise. "His history of violence
is clearly part of the reason the jurors chose to answer the capital
murder questions as they did," he said. "They were certain that he posed
a danger to anyone with whom he would come into contact."
The Jan. 21, 1998, slaying was the only homicide that
year in Matagorda County, about 100 miles southwest of Houston. The
timing — just days after Parr's 18th birthday — is significant because
the U.S. Supreme Court has barred execution for those convicted of
crimes committed when under 18. Parr's lawyers raised the age issue in
earlier appeals but lost.
Parr's younger half-brother, Michael Jiminez, also
was convicted in the case and is serving a life sentence. He was 17 at
the time. At his trial, evidence shows he wrote a rap song about killing
Malek and how he planned to kill again. "That was pretty devastating,"
Stan McGee, one of his trial lawyers, recalled.
Some of the items taken from Malek's home were found
in the apartment where Parr and his brother were staying. Their
fingerprints were found at the murder scene. DNA tied Parr to the rape.
The murder weapon was hidden in an air conditioning vent at the
After the intruders left, Malek's 8-year-old daughter
called her grandparents to report the attack. She later would testify at
Parr's capital murder trial.
According to another witness' testimony, Jiminez and
Parr, who did not testify, also planned to kill the children but the
rusty gun wouldn't work. "I thank God for having intervened by causing a
rifle to jam before those two murderers could kill two helpless children,"
The next Texas inmate scheduled to die is Johnny Ray
Conner, facing injection next week for the shooting death of Houston
grocery store owner Kathyanna Nguyen during an attempted holdup in 1998.
Texas executes man for 1998
Aug 15, 2007
HUNTSVILLE, Texas (Reuters) - Texas on Wednesday put
to death by lethal injection a convicted murderer and rapist who had
threatened to harm prison officials in the weeks leading up to his
Kenneth Parr, 27, was the 20th man executed in Texas
this year and the 399th since the state resumed the practice in 1982
after the U.S. Supreme Court lifted a moratorium.
Parr, who had just turned 18 at the time of the crime,
first threatened to harm female prison staff members and then broadened
his threats to include others working at the facility, said Michelle
Lyons, a spokeswoman for Texas Department of Criminal Justice. But Parr
went to the death chamber without incident, she said.
According to prosecutors, in 1998 Parr and another
man robbed, raped and shot to death 30-year-old Linda Malek in Bay City,
90 miles southwest of Houston. Parr and the other man, who were masked
and armed with handguns, burst into Malek's home and sexually assaulted
her before shooting her once in the head. Her two small children were at
home at the time of the attack.
Because of the threats Parr had made to prison staff,
Texas took the rare step of banning him from conducting death-row media
interviews. Parr made no request for a last meal.
In his last statement, he sent his love to his family.
His mother and sister were witnesses at the execution. "Can y'all hear
me? Tell my family that I love y'all," Parr said.
Parr's execution was the first of five scheduled this
month in Texas, the nation's leading death penalty state.
"When a stupid man is doing something wrong and
he is ashamed for it, he always declares that it is his duty." With
the onslaught of killings in Texas this seems to be the only answer
we can find to match with the state´s actions. Due to the horrendous
acts being carried out by this state, we as Supporters/Abolitionist
and Activist have had to step up our Fight against this unjust
Consciousness is ariving slowly but surely and on
this path we must continue. Our truths (facts) have become our light.
And in light, even though it passes through pollution, is NOT polluted.
More and more in these days it´s getting easier and easier for the Death
Penalty to be handed out. No matter if the lack of evidence, motive or
witnesses has it made a difference in the twisted Due Process they claim
its citizens have.
Most people of the world are not even Enlightened to
the Universal Declaration of Human Rights passed in 1948 by the United
Nations our Country is part of. This Declaration proclaims each person´s
right to 1. Protection from "Deprivation" of life, and 2. it
categorically states that no one shall be subjected to cruel or
The Death Penalty - the Pre-meditated and cold -
blooded killing of prisoners in state custody violates both of these
rights. But, why has our society continued to applaud and uphold this
acts ? People of the Public, YOU cannot be afraid of the facts. We must
face what we have allowed to be made in our country. We as activist have
discovered a very unjust case and in this case we´ve found blatant
violations of any Semblence on Justice. We are making a plea on the
behalf of Kenneth Parr, because 1. We believe he is an innocent man, 2.
We believe he did not have a fair trial and 3. he has more evidence to
be heard. True, the law says No man is promised a "Perfect" trial only a
fair one. But, is having incompetent lawyers who purposely work against
their clients fair ? NO ! And this is only in part what Kenneth Parr has
Kenneth Parr is a poor, young black man. At 20 years
old he´s one of the youngest men on death row. Kenneth has no family or
friend support and do to this vile conditions we feel he needs
As a youngster he was seperated from his parents and
went home to home. His mother was unstable and in and out of prison and
at a young age he found out his father had died. Kenneth rebelled ! Yes,
he rebelled from abusive households, deprived surroundings and on his
own slept on the streets at time even as he pursued to go to school on
We Undoubtedly know that Knowledge of his past by Law
officials bolstered his arrest. Kenneth would like to get his case known
to the public. He would like to offer his facts to any of those who
would want to help. His purpose is not to conceal, but to reveal, but we
need you, "The Public", to aid and assist us and stand by US.
Facts say approximately 74 men haven been exonerated
and freed from death row over the past 25 years. Although, this sounds
good, over 20 men have been executed and then found to be innocent later.
This figure is causing so many to question Capital Punishment - as it
should be. There´s even more concern mistaken convictions will occur as
record numbers of inmates fill death rows, pressure builds for speedy
executions and fewer attorneys defend prisoners facing executions. We
must prevent this in Kenneth Parr´s case. His arrest has been prompted
by misguided information and unheard facts. People of the Public must
seriously and earnestly as, "Is that true ?" For truth does not change;
if truth were to change, truth would not be truth.
We need public, awareness ladies and gentlemen. How
can you get informed to Kennth Parr´s case ? Simply, write to him.
Kenneth is trying to reach out to people not only insights of his case,
but for fellow companionship and to explore his continued thoughts. The
unit he is on (Terrell) has all the inmates und inhumane conditions and
many groups are fighting against the conditions.
Access to things can be granted to these inmates, but
much hatred is being instilled upon them. As you read this dissertation
think hard about what is fair and cruel. Give Kenneth a change at Life
and the Life he has been deceitfully cheated of. An old sage says, "It
is easier to "Perceive" error than to find truth, for the former lies on
the surface and is easily seen, while the latter lies in the depth,
where few are willing to search for it."
Maybe we´ve found OUR answer to why people turn their
backs. But we will stay Diligently on Kenneth´s side and ALL the others
on death row. We leave this plea in your hands, we pray for your support.
In the Plight for Justice you can contact Kenneth at:
12002 FM 350 South
Livingston, Texas 77351 USA
In continuation we leave a small article written by
Kenneth Parr himself:
"A DAY IN A THOUGHT"
"The rich get richer and the poor get poorer." Sounds
like a clichč movie scene or a line from a book doesn´t it ! Well today
it´s not. These were one of the last statements my own court appointed
attorney said to me as I was given the Death Sentence. I don´t think I
felt the same since. I´ve only ever read one accomulation of words that
automatically made me relive the day, the day of how bitter, sour and
sick my stomach turned at that was Revelations 10: 8-10. This would be
the beginning of my Reality Check, but would not be my last ! Now at 20
years old (one of the youngest as you know) I sit among a valley of
Death, but it is now Death Row that has become my teacher and listener.
Death Row - it´s a very hollow word to me. It´s a
word that I´ve only come to relate to as violent, but in Reality we all
know its # 1 relation is Revenge. Just the word itself weighs heavy on
the Human mind and I will not deny that it is TORMENT to my mind. They
say, "Prison is what you make it to be," now we couldn´t just turn this
into a Caribbean cruise or a picnic now could we ? NO ! My world is
filled with descriptions that have seldomly been capturd in words. So,
my journey is to gain a new Consciousness.
"The mind is of dealiest foes, but the most usefull
of servants. When it turns wild and gets out of control, it heads for
certain destruction. When properly awakened and controlled, there is no
limit to what it can do."
It seems like everday Texas gladly kills someone. In
a "so-called" Christian Country. It´s hard to fathom how men do this in
the name of God. Then they wonder why it´s so hard for the up and coming
youths to embrace and accept the "religion" they teach.
As I contemplate my surroundings I see men whose been
here Longer than I´ve been alive. Such thoughts begin to take a toll in
my life. - Why and/or How ? Well, at the same time I can sit up and have
a conversation with a man one night, and the next night he has been "pushed"
off this EARTH, thus toll is: - What´s Life and Death ? - Are my
thoughts my enemy ? - Can I build strength from my thoughts ? - How can
I continue to reach for goals looking at the things I see ?
In a way of speaking, thought makes giants out of
dwarfs and often turns giants into dwarfs. History is filled with
accounts of how thought has made weak men strong and strong men weak,
and I see evidence of its workings around me constantly.
I cannot come to you as a perfect man of a perfect
past and I will no longer use the excuse of I´m not perfect. In every
situation and culture we must stop using excuses for our failures and
I am in the process of suffering grave Misjustices.
From a wrongful and mistaken conviction, to blatant conspiracies to keep
me from fighting my case by the courts, to a case of admitted guilt by
another man, but because the state of Texas would prefer to kill a man
than show they were wrong, my pleas will be sought to be silenced by any
means they can provide. I want my voice to be heard and I will fight
diligently for this. In my own philosophy I say, "Sometimes the longest
way around is the shortest way to the Light. And the darkest part of the
night is right before the day break. But, the sun shines just a little
brighter after the storm is all over."
My storm has just begun. As I look around at this
madness I try to gain Peace and Understanding. I must speak out and
attain help, but I can not do this on my own and can´t do it without our
compassionate members of our society. Contact me if you will, allow me
to share all my facts with you. In the struggle for liberation I will
say, DO NOT LET ME BE A VOICE UNHEARD !
Kenneth Parr, 27, was executed by lethal
injection on 15 August 2007 in Huntsville, Texas for the rape and
murder of a woman during a home invasion robbery.
On 21 January 1998 around midnight, two men burst
into Linda "Suzie" Malek's Bay City trailer home through the front door.
Armed with handguns and hiding their faces with bandannas, the men
entered Malek's bedroom. Malek's screams awoke her children, 8-year-old
Ashley and 6-year-old Zachary.
According to Ashley's subsequent testimony, Malek and
the children were ordered to lie face down on the ground. The men asked
her whether she had a gun, and she said no. They then asked where her
jewelry box was, and she told them. They then raped her and shot her
twice in the head. They then ransacked the home, looking for valuables,
and asked Ashley where her mother's car keys were. She told them, and
They were unable to operate the car's manual
transmission, however, and one of them returned after a few minutes to
ask Ashley how to start the car. She told them to hold in the clutch,
and they went back outside. Still unable to start the car, they fled on
foot, carrying the victim's purse, jewelry, and some electronic items
including a VCR and a video game console.
Fearing that the men were still around and would come
back, Ashley waited about thirty minutes before calling for help. She
called her grandparents, Mike and Charlotte Brown, at about 2:00 a.m.
She informed them that two men wearing bandannas - one short and one
tall - had broken into their house and shot her mother.
She told them that her mother was not alright and was
not talking. When the Browns arrived at the house, they found Malek's
car askew in the driveway, observed that the house had been ransacked,
and found their daughter's body lying face-down on the floor.
Police discovered Malek's purse in a dumpster at an
apartment complex across the street. Their investigation led to Monica
Silva, a resident of the apartments. Much of the property stolen from
Malek's home was found in hidden in an air conditioning vent in Silva's
apartment, as was the murder weapon - a rusty .22-caliber rifle. Silva
said that her boyfriend, Kenneth Parr, then 18, and his brother, Michael
Jiminez, 17, had left those things there.
At Parr's trial, Silva testified that on the morning
of the murder, she returned to her apartment to find Parr and Jiminez
there. Jiminez was holding a jewelry box. Parr told her that they had
used a gun to commit a burglary. She then took Parr to his mother's
house. Parr informed her that he had hidden some items in her apartment.
She found Malek's purse in a bag of trash.
Silva also testified that Parr and Jiminez admitted
to planning the robbery and committing the murder. She testified that
Jiminez said, "We were going to kill the kids, but the gun messed up."
Parr's mother also testified that he told her he shot someone.
A resident of Silva's apartment complex testified
that she heard two gunshots on the night of the murder. Twenty minutes
later, she heard two men arguing outside her window. She said the men
were carrying a television and appeared to be Latino or African-American.
Another resident testified that she saw and heard two men who she
recognized as Kenneth Parr and Michael Jiminez talking.
The state also presented DNA evidence left on the
victim's body from the rape. Parr, who was on parole at the time of the
murder, did not testify. The Texas Attorney General's Office issued a
press release stating that Parr confessed to the murder, but this
apparently referred to incriminating statements attributed to him in
other witnesses' testimonies.
Because of the publicity surrounding the murder in
Brazoria County, the trial was moved to neighboring Matagorda County. A
jury convicted Parr of capital murder in April 1999 and sentenced him to
death. The Texas Court of Criminal Appeals affirmed the conviction and
sentence in March 2001. His subsequent appeals in state and federal
court were denied. Michael Wayne Jiminez was convicted of murder and
sentenced to life in prison. According to several anti-death-penalty web
sites, Parr denied having any involvement in the murder.
While on death row, Parr accumulated a lengthy
disciplinary record, including an incident where he attacked a female
corrections officer and threw her down a flight of stairs. According to
Texas Department of Criminal Justice spokeswoman Michelle Lyons, Parr
also made repeated threats to rape female prison employees before his
Because of these threats, prison officials took the
rare step of denying Parr visits from the news media the week before his
execution. "He made threats against our staff, and it was determined
that it was simply too dangerous to allow him out of his cell," Lyons
said. "He's been adamant that he would like to harm staff members before
Despite the threats, Parr's transport to Huntsville
and the preparations for his execution were uneventful. Suzie Malek's
parents and aunt attended the execution, as did Parr's mother, Mary
Cologne; his brother, Joe Williams; and other relatives.
In a brief last statement, Parr expressed love to his
relatives. The lethal injection was then started. Cologne banged on the
glass while Williams fell to the floor, sobbing. Parr was pronounced
dead at 6:20 p.m.
On January 21, 1998, Linda Susan Malek died as a
result of gunshot wounds to the head.
Around two o’clock that morning, Suzie’s mother and
her stepfather received a call from Suzie’s daughter, Ashley, informing
them that two men had broken into their home and shot Suzie. The Browns
drove to Suzie’s home and discovered that several items were missing
including a television, a VCR, a video game console, jewelry, and
Suzie’s car keys. Suzie’s daughter and son, Zachary, were both present
when their mother was killed.
According to Ashley, the two masked men burst into
the home through the front door. They ordered Suzie and her children to
lie face down on the floor. Suzie was crying and begged them not to
shoot her. The evidence indicated that Suzie was sexually assaulted.
They then ransacked the home before fleeing the residence with Suzie's
car keys. Parr returned and asked one of the children how to operate the
car. When they were unable to start the car, they fled on foot.
Evidence presented at trial revealed that on the
morning of the murder, Kenneth Parr’s girlfriend returned to her
apartment and found Parr and his brother, Michael Jimenez, there;
Jimenez was holding a jewelry box. Parr told his girlfriend that he had
gone somewhere with a gun and committed burglary. Parr then packed up
most of his belongings and his girlfriend took him to his mother’s house.
Parr later informed his girlfriend that he had hidden
some items in the air-conditioning vent at her apartment. When she
returned home, she found a VCR, a video game console, a gun, and a
jewelry box. While she was taking out her trash, the bag fell open and a
purse that contained Suzie Malek’s driver’s license fell out.
A resident of the apartment complex testified that
she heard two gunshots on the night of the murder. Twenty minutes later,
she heard two men arguing outside her window and when she looked outside
her window she saw two young men who appeared to be Latino or African-American.
Both men were carrying a television. Another resident of the apartment
complex also testified that she saw and heard two young men talking and
recognized the men as Kenneth Parr and Michael Jimenez.
Parr was on parole from the Texas Youth Commission ("TYC")
at the time of the murder. At his trial, evidence showed that he wrote a
rap song about killing Suzie Malek and how he was planning to murder
again. A witness testified Jiminez told her he and Parr shot Suzie Malek
and planned to kill the children but the rusty gun jammed. The brothers'
fingerprints were found at the murder scene and DNA tied Parr to the
In the weeks preceding his execution, Texas
Department of Criminal Justice officials took the rare step of putting
him off-limits for media interviews because of security concerns. "He's
been adamant that he would like to harm staff members before he's
executed," department spokeswoman Michelle Lyons said. "He flipped out
when he found out we weren't going to do media stuff."
Steven Reis, the Matagorda County district attorney
who prosecuted Parr, said the prisoner's history since being locked up
was no surprise and shows jurors were correct to give him a death
sentence. "He is the clearest example of how even death row inmates are
dangerous," Reis said. "Many people suggest that once a defendant is
incarcerated for life, they pose no danger to society. This misleading
statement presumes that the people who work within the prisons are not
members of society, which is preposterous. Those people are at risk from
the likes of Parr."
Parr v. Quarterman,
472 F.3d 245 (5th Cir. 2006) (Habeas)
Background: Following his capital murder conviction
and sentence of death, and denial of his application for state habeas
relief, state prisoner petitioned for federal habeas relief. The United
States District Court for the Southern District of Texas, Samuel B. Kent,
J., denied the request for habeas relief, but granted a certificate of
appealability (COA) on 17 issues. Prisoner appealed and requested a COA
on one issue not raised before the district court.
Holdings: The Court of Appeals, Carl E. Stewart,
Circuit Judge, held that:
(1) collateral estoppel did not bar prisoner's prosecution;
(2) state habeas court's conclusion that prosecutor's handwritten note
was immaterial was not an unreasonable application of Brady;
(3) state habeas court's conclusion that prosecutor's failure to
disclose alleged police coercion of witness did not violate Brady was
(4) prosecutor's failure to disclose relationship between prosecution
and parole officer did not violate Brady;
(5) trial counsel's presentation of mitigating evidence at punishment
phase did not render his assistance ineffective;
(6) state habeas court's failure to consider evidence that jury
improperly considered the issue of parole did not warrant habeas relief;
(7) district court correctly denied relief on claim concerning trial
court's failure to instruct jury that prisoner would have to serve 40
years before being eligible for parole;
(8) district court did not err in denying relief on claim that parole
officer's testimony misled jurors regarding the time prisoner would
serve before becoming eligible for parole;
(9) witness's statement referring to prisoner's interview was not a
comment on prisoner's post-arrest silence in violation of his due
(10) prisoner's due process rights were not violated by introduction of
a booking photo of prisoner's brother/co-defendant; and
(11) prisoner would not be granted a COA on the issue of whether his
death sentence, for a crime committed when he was 18 months and four
days old, violated his Eighth Amendment rights against cruel and unusual
punishment. Denial of habeas relief affirmed; request for COA denied.
CARL E. STEWART, Circuit Judge:
Kenneth Parr appeals from the district court's denial
of habeas relief and he also requests a certificate of appealability (“COA”)
from this court. Parr was convicted and sentenced to death for the 1998
murder of Linda Malek. Parr petitioned for federal habeas relief
challenging his conviction and sentence. The district court denied
Parr's request for habeas relief, but granted a COA on seventeen issues.
Parr requests a COA on one issue not raised before the district court.
For the following reasons, we affirm the district court's denial of
habeas relief and deny Parr's request for a COA.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 21, 1998, Linda Malek died as a result of
gunshot wounds to the head. Around two o'clock that morning, Malek's
mother, Charlotte Brown, and her stepfather, Mike Brown, received a call
from Malek's daughter, Ashley, informing them that two men had broken
into their home and shot Malek.
The Browns drove to Malek's home and discovered that
several items were missing including, inter alia, a television, a VCR, a
video game console, jewelry, and Malek's car keys. Malek's daughter and
son, Zachary, were both present when their mother was killed. According
to Ashley, the two men ordered Malek and her children to lie face down
on the floor. Malek was crying and begged them not to shoot her. The
evidence indicated that Malek was sexually assaulted.
Evidence presented at trial revealed that the morning
of the murder Parr's girlfriend, Monica Silva, returned to her apartment
and found Parr and his brother, Michael Jimenez, there; Jimenez was
holding a jewelry box. Parr told Silva that he had gone somewhere with a
gun and committed burglary. Parr then packed up most of his belongings
and Silva took him to his mother's house.
Parr later informed Silva that he had hidden some
items in the air-conditioning vent at her apartment. When Silva returned
home, she found a VCR, a video game console, a gun, and a jewelry box.
While Silva was taking out her trash, the bag fell open and a purse that
contained Malek's driver's license fell out.
A resident of Silva's apartment complex testified
that she heard two gunshots on the night of the murder. Twenty minutes
later, she heard two men arguing outside her window and when she looked
outside her window she saw two young men who appeared to be Latino or
African-American. Both men were carrying a television. Another resident
of the apartment complex also testified that she saw and heard two young
men talking and recognized the men as Kenneth Parr and Michael Jimenez.
In May 1999, Parr was convicted of one count of
capital murder for the murder of Linda Malek and was sentenced to death.
The Texas Court of Criminal Appeals affirmed the conviction and sentence.
Parr v. State, No. 73,497 (Tex.Crim.App. March 7, 2001) (unpublished
During the pendency of his direct appeal, Parr filed
an application for habeas relief in state court; the Texas Court of
Criminal Appeals denied his application. Ex parte Parr, No. 48,257-01 (Tex.Crim.App.
November 13, 2002) (unpublished order). Parr filed a petition for habeas
relief in the federal district court on January 27, 2004.
Parr asserted twenty-eight separate grounds for
review, which the district court then combined into seventeen claims.
The court granted summary judgment to the State on each of the seventeen
grounds, but granted Parr a COA as to each ground as well.
* * *
Parr argues that his conviction was not based on
proof beyond a reasonable doubt and that he is actually innocent. The
district court concluded that both of these claims are procedurally
barred. A fundamental prerequisite to federal habeas relief is the
exhaustion of all claims in state court prior to requesting federal
collateral relief. Smith v. Dretke, 422 F.3d 269, 275 (5th Cir.2005) (citing
Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 71 L.Ed.2d 379
(1982)). “The exhaustion requirement is satisfied when the substance of
the federal habeas claim has been fairly presented to the highest state
court.” Id. (citing Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct.
509, 30 L.Ed.2d 438 (1971)).
Additionally, the Supreme Court has held that “a
claim of ‘actual innocence’ is not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must pass to have
his otherwise barred constitutional claim considered on the merits.”
Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203
(1993). Accordingly, Parr “must first raise a substantial doubt about
his guilt, which would then cause us to examine any barred
constitutional claims.” Dowthitt v. Johnson, 230 F.3d 733, 741 (5th
Parr's arguments in support of his innocence are that
there were no eyewitnesses placing him at the scene, there was no
evidence showing when DNA evidence was placed on Malek's body, and the
bruises on Malek's arms and face occurred twelve to eighteen hours
before her death.FN1 All of the facts to which Parr points were
available for the jury to consider. Additionally, the jury could convict
Parr of capital murder either as a principal, or as an accomplice, based
on the commission of murder in the course of either burglary, or
aggravated sexual assault.
Viewing the facts in a light most favorable to the
prosecution, we conclude a reasonable juror could have reached the
conclusion that Parr committed rape and/or burglary, and murder. See
Neville v. Dretke, 423 F.3d 474, 481 (5th Cir.2005). Therefore, Parr has
not raised a substantial doubt about his guilt. Parr concedes that he
did not present these claims to the state court on direct appeal or in
state habeas proceedings; accordingly, the district court correctly
concluded that these claims are procedurally barred.
FN1. The medical examiner actually testified he could
not be more specific than twelve to eighteen hours, but that it could
have been less than that; indeed, he stated that twelve to eighteen
hours was actually the maximum time.
Parr also argues that the admission of hearsay
statements made by Michael Jimenez to Maria Cervantes violated the
Confrontation Clause. Parr did not object to the admission of these
statements on Confrontation Clause grounds during the trial. On direct
appeal, Parr argued that admission of Jimenez's statement violated the
Confrontation Clause, but the state court determined that Parr failed to
preserve any constitutional error. “ ‘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.’ ” Dowthitt, 230 F.3d at 752 (quoting Corwin v.
Johnson, 150 F.3d 467, 473 (5th Cir.1998)).
We are precluded from granting habeas relief where
the last state court to consider the claim expressly and unambiguously
based its denial of relief on an independent and adequate state-law
procedural ground. Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir.2003).
Parr also failed to present his Confrontation Clause claim to the state
habeas court. Thus, the district court correctly held that these claims
are procedurally barred.FN2
FN2. Even if this claim were not procedurally barred,
both of the statements were nontestimonial and admissible under state
law pursuant to exceptions to the hearsay rule. Crawford v. Washington,
541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“Where
nontestimonial hearsay is at issue, it is wholly consistent with the
Framers' design to afford the States flexibility in their development of
hearsay law....”). Jimenez's statement was admissible as a statement
against interest under Texas Rule of Evidence 803(24).
Parr asserts that the trial court erred (1) in
denying his Batson challenge to the State's peremptory challenge of
venire member Monique Gadson; (2) in admitting a letter allegedly
written by Parr and sent to Monica Silva; (3) in admitting pictures of a
pair of tennis shoes found at Parr's mother's house; (4) in denying
Parr's motion to suppress evidence seized from the apartment that he
shared with Silva; (5) in denying Parr's request for a jury instruction
on accomplice witness testimony during the guilt/innocence phase of the
trial; and (6) in admitting hearsay statements made by Malek's children
to their grandmother in violation of the Confrontation Clause.
Parr failed to address these arguments in his brief
to this court, but instead refers us to the arguments set forth in his
petition before the district court. By failing to argue these issues in
the body of his brief, Parr has abandoned them. Fed. R.App. P. 28(a)(9);
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Nevertheless, we
have considered each of these claims and conclude that the state court's
rejection of these claims was not unreasonable and the district court
correctly denied relief.
C. We turn now to the eight remaining claims on which
the district court granted a COA.
Parr argues that his conviction was obtained in
violation of the Fifth Amendment under the doctrine of collateral
estoppel. Parr was on parole from the Texas Youth Commission (“TYC”) at
the time of the murder. After the murder, the state attempted to revoke
Parr's parole based on his participation in the theft of Malek's
television; however, at the revocation hearing, the examiner concluded
there was insufficient evidence to prove that Parr was involved.
Parr argues that the doctrine of collateral estoppel
prevented the state from using the burglary as a predicate felony for
the capital murder conviction. Parr contends that collateral estoppel is
a constitutional bar to prosecution independent of the double jeopardy
clause. We disagree. We have held that the double jeopardy clause does
not extend to parole revocation proceedings. United States v. Whitney,
649 F.2d 296, 298 (5th Cir.June 1981).
Further, we have previously rejected “attempts to
erect a due process basis, independent of the double jeopardy clause,
for the application of collateral estoppel.” Showery v. Samaniego, 814
F.2d 200, 203 (5th Cir.1987). Accordingly “[i]f [Parr's] collateral
estoppel claim is simply an effort to state a Double Jeopardy Clause
claim, it fails.... If it is an effort to state an independent violation
of the Fourteenth Amendment's Due Process Clause, it also fails.”
Stringer v. Williams, 161 F.3d 259, 262-63 (5th Cir.1998). The district
court correctly denied relief on this ground.
* * *
Parr also contends that the police coerced his mother
into making a second statement that was more damaging to the defense.
According to Parr, in her second statement, his mother, Mary Saldierna,
minimized evidence that Parr was intoxicated and stated that Parr told
her that he shot a woman. At trial, Saldierna attributed the differences
between her statements to her bad memory; however, at the state habeas
proceedings, Saldierna averred that the police threatened her and
offered her immunity if she changed her statement.
The state habeas court concluded that Saldierna was
not coerced and that her affidavit testimony to the contrary was neither
credible nor reliable. Parr has made no attempt to rebut the presumption
of correctness. See Summers v. Dretke, 431 F.3d 861, 871 (5th Cir.2005).
We understand Parr's argument to be that the
prosecution was aware of this coercion and failed to inform him or his
counsel; however, Parr had an opportunity to cross-examine Saldierna on
the two statements at trial and she denied any accusation that the
police had pressured her. The state habeas court's conclusion that Parr
did not establish a Brady violation was not unreasonable. Consequently,
the district court correctly denied relief on this claim.
Finally, Parr argues that the prosecution provided
his parole officer with evidence and exerted influence over the
scheduling of his parole revocation proceedings and failed to disclose
this relationship. During state habeas proceedings, both Parr's parole
officer and a TYC representative testified that the prosecution did
provide them with evidence, but the prosecution never controlled the
timing of the revocation proceedings.
The state habeas court concluded that the prosecution
did not significantly participate in the parole revocation proceedings.
Parr has not attempted to rebut the presumption of correctness. 28 U.S.C.
Moreover, Parr does not explain how this information
would have impacted his case; as discussed above, collateral estoppel
does not apply to parole proceedings. “ ‘[E]vidence is material only if
there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.’
” Rector v. Johnson, 120 F.3d 551, 562 (5th Cir.1997) (alteration in
original) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.
3375, 87 L.Ed.2d 481 (1985)). Accordingly, he has failed to establish a
Brady violation and the district court correctly denied relief on this
* * *
Finally, Parr argues that his trial counsel's
presentation of mitigating evidence was deficient. Parr specifically
points to trial counsel's failure to obtain records from Child
Protective Services (“CPS”), despite knowing that Parr had been removed
from his mother's custody. These records indicate that Parr was removed
from his mother's custody for approximately two years because he and his
siblings were frequently left at home unsupervised.
The records also indicate that CPS received numerous
complaints regarding lack of supervision and physical abuse by his
mother's boyfriends. A psychologist's evaluation described ten-year- old
Parr as a sad child who was acting out because he did not have
consistent rules and who longed to be reunited with his mother and
Parr also submitted affidavits from several witnesses
in support of his claim that trial counsel failed to present adequate
mitigating evidence. The affidavits indicate that Parr had a difficult
childhood during which he and his family moved around frequently, his
mother was seldom at home, and he and his brothers often stole things.
The state habeas court concluded that the affidavits
submitted by Parr in support of this claim-those of Saldierna, Carol
Parr, Alanta Williams, Jessie Parr, and Merian Whalon-were neither
credible nor reliable.
Following oral argument in this case, we granted
Parr's motion to supplement the record with documents his counsel
discovered while preparing for oral argument. Parr submitted
psychological evaluations from 1994 and 1996 stating that Parr was
emotionally disturbed and severely depressed. Specifically, he produced
the following: (1) a psychoeducational evaluation from Matagorda County
Educational Services dated March 22, 1996, indicating that Parr was
eligible for special education services as learning disabled; (2) notes
from the Apple Springs/Centerville Groverton ISD Wilderness School from
October 13, 1994, showing that Parr satisfied the criteria for:
“Emotionally Disturbed”; and (3) records from the Hope Wilderness
Schools Houston/Trinity County Resource Education Coop dated October 11,
1994, classifying Parr's emotional disturbance as “Depressive Disorder
GOS A (311.00) Severe.”
It is debatable whether Parr's counsel was deficient
for failing to locate and introduce the records from Child Protective
Services as well as the psychological evaluations. Nevertheless, Parr
has not shown a reasonable probability that but for trial counsel's
performance, the outcome would have been different. Ransom v. Johnson,
126 F.3d 716, 723-24 (5th Cir.1997); cf. Wiggins v. Smith, 539 U.S. 510,
534-35, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding that counsel's
failure to investigate and present evidence that the petitioner
“suffered physical torment, sexual molestation, and repeated rape during
his subsequent years in foster care” was unreasonable and prejudiced the
petitioner). Parr has not “show[n] that his proposed mitigating evidence
of ... a troubled family life raises more than a mere possibility of a
different outcome, and not the required reasonable probability.” Lamb v.
Johnson, 179 F.3d 352, 360 (5th Cir.1999) (internal quotation marks
During the punishment phase of trial, Dr. Floyd
Jennings, a clinical psychologist, testified that Parr did not have
stable parenting, that he was exposed to criminal activity and substance
abuse by family members, that he was sexually abused, and that he had no
opportunity to learn responsibility. Parr's counsel also called one of
Parr's former teachers who testified that Parr did not exhibit
behavioral problems in her class.
The defense also called Parr's mother, Saldierna, who
testified about her relationship with Parr's father. She stated that
Parr's father lived with Saldierna sporadically, and that the family
moved around a lot when Parr was young. She also testified that Parr has
two brothers, in addition to Jimenez, that are also incarcerated.
She further testified that her husband hit her and
that sometimes her children had to protect her. She stated that Parr was
in foster care while she was incarcerated for two years and that Parr
had done well while in foster care. She also testified that Parr's
father passed away while she was in prison and that Parr became detached
after his father's death.
Additionally, though perhaps not as effectively as it
might have been, the jury did hear evidence regarding Parr's unstable
childhood from both Dr. Jennings and Saldierna. Further, the State's
case on punishment was strong.
In addition to the facts of the crime, the State
presented evidence of Parr's prior convictions for burglary and assault,
Maria Cervantes testified that Jimenez told her that he and Parr shot
Malek in the back of the head twice and planned to kill the children but
the gun “messed up,” and Parr's parole officer testified that Parr was
on parole from the Texas Youth Commission when this crime was committed.
The district court correctly concluded that Parr could not show
prejudice and thus, was not entitled to relief on this ground.
* * *
For the foregoing reasons, we AFFIRM the district
court's denial of habeas relief and DENY Parr's request for a COA.