March 26, 1999
The first statement I would like to
make it’s my sister. I want her to know that every thing
that is said, every move that is made, every motion, I hold
it true to my heart. I hold it in my soul.
I want you to know that I am not
guilty and I will say this to the family. I did not kill
your daughter. Take it the way you want. Sorry for the pain.
Sister, I love you and will be there with you, to help you. I want to talk to you about
being there by her. You know what I am saying. I want to
thank you, thank you for the words. The dying words, you
know. They mean a lot. Make sure he knows what I want him to
I want to quote a song that I wrote
called "God Living with Us 24 Hours." It goes:
Tell the kids I love them and I’ll
be there. That’s all I have to say.
On October 17, 1981,
Katy Davis was beaten and raped by Charles Rector and several
The men followed
Katy to her home in Austin, Texas but when she saw three strangers
outside her apartment, she turned and walked the other way. She
returned later, only to be attacked by two men, who forced her to
open the door.
They ransacked her
apartment before taking her to the Town Lake area where she was gang-raped,
shot in the head and dumped in Town Lake where they repeatedly
forced her head underwater until she drowned.
When arrested a
couple of hours later, Rector was wearing some of her clothing, had
her jewelry in his pockets, was driving her car and his knife was
later found in her apartment, yet he still claimed innocence.
Rector had a
criminal record dating back to age 12 and was on parole for a
previous murder at the time of Katy's brutal killing.
Three people were charged in the
kidnapping and murder of University of Texas student Carolyn Kay
“Katy” Davis. Only one was convicted.
Howard Ray Simon escaped from jail
and was fatally shot while committing a robbery. Anthony Miller was
acquitted of the charges and Charles Henry Rector was executed on
March 26, 1999.
Rector’s appellate attorney, Roy Greenwood, still
questions how Rector came to take the blame for the crime. “I’ve
represented 56 guys (convicted of capital crimes) and only lost two
of them,” Greenwood said. “Rector was the first.”
According to police, on the evening of Oct. 17,
1981, Davis walked in on the men who were robbing the Austin
apartment she shared with her boyfriend.
Several neighbors reported hearing a scream and a
door slam. Two neighbors also reported seeing three black men
outside her apartment shortly before her abduction.
While conducting their investigation at the
apartment that night, police spotted two suspicious men. The men ran
and police pursued them. One escaped capture. The other was Rector.
When Rector was arrested, he was wearing Davis’
blue jeans and in possession of her jewelry as well as other items
missing from the apartment. Rector told police he bought the items
from two men at a convenience store earlier that evening.
Davis’ body was recovered from Town Lake the
following day. Although she had been shot in the head, the cause of
death was ruled as drowning. There was also evidence that she had
been sexually assaulted.
Howard Ray Simon was considered a suspect after,
on the evening of Davis’ disappearance, he failed to return to the
halfway house at which he and Rector were staying. He was arrested
in Dallas four days later.
Simon confessed his role in the crime but
implicated Rector as the killer. He also implicated Anthony Miller.
Both Rector and Simon were released from prison
shortly before Davis’ murder as part of an early release program.
Greenwood claims that this fact, coupled with
Simon’s escape, embarrassed the state. In turn, the state put
tremendous pressure on the system to get a conviction. He further
contends that this pressure resulted in the court overlooking
discrepancies in the case. “It was the most political case I can
remember,” Greenwood said.
Evidence against Rector was considered
circumstantial. According to Greenwood, Rector was involved in the
robbery but fled when the victim returned home. He returned later
that evening to look for his accomplices.
Phil Nelson, who prosecuted this case, refers to
this version of events as, “Something the defense came up with.”
Nelson supports the police’s theory that Rector was the killer and
returned to the scene to retrieve a knife he left behind.
Although Greenwood’s version explains why Rector
was in possession of Davis’ belongings, Nelson claims it is
inaccurate. He pointed out that Rector told police that he bought
the items from two parties at a convenience store. When asked by
police, he could not tell them which store.
Contrary to Greenwood’s claim, in an interview
with the Austin-American Statesman given days before his death,
Rector still maintained that he bought the items from two men at a
Rector, who had previously served 7 years for a
separate murder conviction, did not testify in his own defense. He
made several outbursts during his trial.
Despite the circumstantial nature of the evidence,
Nelson maintains they had a solid case. He claimed that, when all
the evidence was viewed together, “It was just too coincidental.”
The jury agreed and convicted Rector in only 90
Despite nearly 17 years of appeals, Rector was
finally executed. He maintained his innocence throughout the
Charles Rector, 44 - 99-3-25,
claiming his innocence to the end, was executed Thursday night for
the abduction, rape, shooting and drowning of an Austin woman more
than 17 years ago.
pronounced dead at 6:22 p.m., 8 minutes after the lethal drugs began
flowing into his body.
want you to know I'm not guilty," Rector said in a final statement
while strapped to the death chamber gurney. He turned his head and
looked at 5 members of Carolyn Kay Davis' family.
"And I'll say this to the family - I did not kill
your daughter. Take it the way you want. I'm sorry for the pain," he
Rector expressed love
to members of his family, who also watched through a window. One of
his witnesses fainted and had to be assisted out of the viewing area
after Rector had slipped into unconsciousness.
He concluded his statement by reciting the words to
a song he wrote, called "God Living With Us 24 Hours."
Among Rector's witnesses were former Dallas Cowboy
Thomas "Hollywood" Henderson, now an Austin businessman who is
active in community programs.
Rector, 44, was convicted of killing the 22-year-old
Ms. Davis, who disappeared from her Austin apartment on Oct. 17,
Rector was on parole
for another slaying 7 years earlier when he was arersted near Ms.
Davis' apartment a few hours after she disappeared. He was wearing
her designer jeans, carrying her jewelry in his pocket and had items
from her apartment in his car.
The University of Texas coed's body was found the
next morning near an island in Austin's Town Lake. Although she had
been shot once in the head, a medical examiner ruled drowning as the
cause of death.
Supreme Court last week refused to consider additional appeals in
the case, and the Texas Board of Pardons and Paroles earlier this
week rejected a clemency petition, clearing the way for the 8th
execution in Texas this year.
"I ain't scared," Rector said in a recent death row
interview. "They can take my life, but they can't make an innocent
"Dr. Psycho" by other inmates because of his ability to tune out
distractions and ignore others as he wrote music in his prison cell,
said he turned down an offer to plead guilty before his trial in
exchange for a life prison term.
"I'm not sorry to have not taken the life sentence,"
he said. "I'd rather die than say I'm guilty. It's not my crime.
It's not my nature to kill for blue jeans. C'mon, it would take an
animal to kill for a pair of blue jeans."
Rector spent more than 16 years on death row, which
made him among the longest-serving condemned prisoners in Texas.
"It's frustrating for us, primarily because it's
agonizing for (victims') families to have these things linger," said
Rosemary Lehmberg, the Travis County assistant district attorney who
a long trail," added Phil Nelson, the other prosecutor in the case.
Rector was stopped for traffic violations the night
Ms. Davis disappeared as he sped from the area of the abduction.
Authorities theorized he was attempting to return to the scene to
retrieve a knife he left behind.
"The information we had was 3 men followed her home
and to her apartment, kidnapped her, took her to a remote area,
sexually assaulted and murdered her and threw her body into the
water," Ms. Lehmberg said.
other men were arrested with Rector. One was acquitted. A 2nd,
Howard Ray Simon, 21, escaped from the Travis County Jail and was
fatally shot during a robbery in Louisiana.
In a statement to police, Simon had said Rector
spotted Ms. Davis driving a new car and followed her home because he
believed she had money. When she got out to open the door of her
apartment, they ambushed her.
Rector said he had purchased the jewelry and other
items, including 2 rifles, from a couple of other men outside a
convenience store. He said he bought the jeans from a clothing
Ms. Davis' roommate
identified the jeans as the victim's, and a gun found in Rector's
car was linked to the victim's head wound. A jury deliberated just
90 minutes before finding Rector guilty.
(sources: Associated Press and Rick Halperin)
120 F.3d 551
Charles RECTOR, Petitioner-Appellant,
Gary L. JOHNSON, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellee.
United States Court of Appeals,
Aug. 18, 1997.
Appeal from the United States
District Court for the Western District of Texas.
Before JOLLY, JONES and STEWART,
STEWART, Circuit Judge:
In 1982, Charles Rector was
convicted for the murder of Carolyn Kay Davis. For that, Rector
was sentenced to die. Rector's conviction and sentence were
affirmed by the Texas Court of Criminal Appeals, and the United
States Supreme Court denied certiorari. Rector then sought and
was denied state habeas relief. In a fifty-four page order, a
federal magistrate judge denied Rector federal habeas relief;
the district court adopted the magistrate's report and
recommendation over Rector's objections. The district court also
refused to grant Rector a Certificate of Probable Cause (CPC).
Rector now seeks a Certificate of Appealability (COA) or CPC
from us. Construing Rector's appeal as a request for a CPC, we
decline to issue a CPC and affirm Rector's conviction and
sentence of death.
Mark Arnold and Carolyn Kay
Davis shared apartment number 204 of the La Paz apartments
located in Austin, Texas. On the evening of October 17, 1981,
Arnold and Davis went grocery shopping; they took separate cars
because Davis had to stop off at a bank on the way home from the
That night, Davis had on size
6 Calvin Klein blue jeans, a long-sleeved shirt, a gold chain
with a cross, and a high school ring. At about 8:45 p.m., Arnold
(who was following Davis) saw Davis turn down a street headed to
their La Paz apartment. Arnold would never see Davis alive again.
Arnold returned to the
apartment at approximately 9:15 p.m., only to find the door
unlocked, the lights on, and a bag of groceries overturned on
the couch. Arnold searched for Davis. In the parking lot, he
found Davis's car locked, with the interior lights on and a sack
of groceries still inside.
Arnold then returned to the
apartment, went into the bedroom, and found the window and
curtains open and the screen smashed through. Arnold found a
Schrade knife that did not belong to him or Davis on the floor
underneath the window. Two of Arnold's rifles were also missing,
and the closet and bedroom had been ransacked. Arnold testified
that his gym bag, which contained a strain gauge used in
engineering research, was missing. At that point, Arnold called
police and continued looking for Davis.
Davis's abduction did not
occur silently. Two witnesses who lived next door to Davis
testified that on the evening of October 17, they were in the
living room of their apartment when at approximately 9 p.m.,
they heard a woman's short, startled scream. They then heard the
shuffle of feet and a door slam. The witnesses went outside
their apartment and saw nothing unusual. Ten minutes after
returning to their apartment, Arnold came to their apartment in
search of Davis.
The neighbor in the other
adjoining apartment also testified that at about 9 p.m. on
October 17, he was sitting in his apartment when he heard voices
coming down the hallway. One person asked, "Where is it?" and
another person responded, "It's 204." The witness heard the
voices pass his door and window. The witness then looked out the
window and saw three black men standing in front of Davis's
One of three men was
wearing overalls, but the witness could not see their faces. The
witness watched the three men for approximately thirty seconds
and then returned to his chair in his apartment. The witness
testified that shortly after returning to his chair, he heard a
slam, a brief scream, and a sound like someone diving in a pool.
The witness then looked out the window again, but saw nothing.
The witness came out of his apartment about thirty minutes later,
when he heard a policeman's walkie-talkie.
The Investigation Leading
up to Rector's Arrest
A fingerprint technician from
the Austin Police Department arrived at Davis's apartment at
approximately 9:35 p.m. to process the fingerprints that may
have been in the apartment. Investigating police also came to
the apartment. At about 11 p.m., the investigating police left
The fingerprint technician,
however, was still in the process of packing up his gear when he
heard (the door to the apartment was open) footsteps coming up
the landing toward Davis's apartment. He looked out the door,
saw two black men walking quickly, and radioed for officers to
look for the two men. Davis's stepfather, who was also in the
apartment at that time, gave chase.
Another resident of the
apartment complex testified that at about 11:15 p.m., she saw
Rector jogging through the apartment complex. Rector asked, "Did
you see two other black dudes around here?" The witness
testified that she answered Rector's question in the negative.
Officer William Matthews of
the Austin Police Department testified that he responded to a
call at 11:30 p.m. on October 17. Officer Matthews saw the
fingerprint technician and Davis's stepfather standing on the
corner pointing east. Officer Matthews proceeded in that
direction and came upon a green 1969 Buick Skylark stopped
diagonally in the street with the trunk open. The car reversed,
quickly accelerated forward, ran a stop sign, and then ran a
flashing red light. Officer Matthews stopped the car. As he
approached the car, Matthews saw in the trunk two rifles, a
vinyl bag, and clothing. Rector was the driver and sole occupant
of the vehicle.
When Rector exited the car,
Officer Matthews saw that he (Rector) was wearing a tight pair
of designer blue jeans and no shirt. Rector told Officer
Matthews that he had bought the items found in the trunk of his
car from a black male in a white Ford pickup. Officer Matthews
thereafter arrested Rector and brought him to the city jail.
After arriving at the jail,
Officer Matthews searched Rector and found a silver colored
watch, one plain gold chain, a gold chain with a green stone,
one gold chain with a gold star and a diamond in the center, one
gold ring with a cross, and one woman's 1978 Anderson High
School graduation ring with the initials "CKD" inside. Officer
Matthews then exchanged Rector's jeans for jail clothes; Rector
was not wearing any underwear.
The blue jeans taken from
Rector were size 6, with a Calvin Klein brand name on them. An
expert witness testified that the crotch area of the jeans
tested positive for the presence of seminal stains. Arnold
testified that the jeans taken from Rector were identical to
those Davis was wearing when he last saw her.
Arnold also identified a
number of items found either on Rector's person or in his (Rector's)
car that linked him to the burglary: the watch found in the blue
jeans belonged to Arnold (it was in the dresser drawer of his
apartment); the necklaces taken from Rector's car were similar
to those Davis was wearing; the rings found in Rector's car
belonged to Davis; the two rifles and strain gauge recovered
from Rector's car were the items missing from the apartment; a
blue-striped blouse found among the clothing in Rector's car was
the same blouse Davis was wearing when Arnold last saw her alive;
and a number of other items found in Rector's car, including a
jar of pennies and miscellaneous clothing.
The jury was also told that
Rector owned the 1969 Buick and that a number of items found
inside the car (separate from the items found in the trunk)
linked him to the burglary and abduction and murder of Davis. An
Austin used car dealer testified that he sold Rector a 1969
green Buick Skylark on October 15, 1981 (approximately two days
before the crime).
The witness identified a
document taken from a billfold found in the car as the receipt
he gave Rector at the time of the sale. On the right front seat
of the car, the police found bib overalls, and in a pocket was a
copy of a traffic citation issued to Rector on October 15, 1981.
An Austin police officer
confirmed that he issued a traffic citation to Rector on that
date. In addition, a leather sheath with a snap-over flap
bearing the name "Schrade" was with the overalls; the Schrade
sheath fit the knife found in Davis's apartment. The police also
found a Rohm .22 caliber, six-shot revolver on the right front
floorboard of the car; the cylinder held two live rounds, two
spent shells, and two empty chambers.
Recovery of Davis's Body
On the morning of October 18,
1981, the nude body of Davis was discovered in the Colorado
River just off of Redbud Island in Austin. Officials removed the
body from the river at approximately 3 p.m. that day. The
Medical Examiner's autopsy revealed that Davis had suffered a
gunshot wound to the head (behind the right ear), and he
recovered a .22 caliber bullet from Davis's brain.
The Medical Examiner testified
that the barrel of the gun which fired the shot was at least six
inches away from Davis's head. In addition, the Medical Examiner
concluded that Davis did not die from the gunshot wound because
such a wound causes death within thirty minutes to an hour and
because there were indications that Davis drowned.
Based on the presence of water
in her lungs, a dilated heart, bleeding in the middle ears, and
an abundance of frothy pink fluid exuding from Davis's nostrils
and mouth, the Medical Examiner stated that drowning intervened
as the cause of Davis's death. He put the time of death at "most
probably ... around 11 p.m."
A firearms expert also
attempted to link up the .22 caliber bullet recovered from
Davis's brain and the .22 caliber gun found in Rector's car. The
expert testified that the bullet found in Davis's head was fired
from a weapon that had eight lands and grooves inclined to the
right. According to the expert, the gun recovered from Rector's
car matched that description. However, the expert was unable to
positively link the bullet taken from Davis's brain to Rector's
gun because the bullet was mutilated.
Rector was charged with the
capital crime of intentional murder in the course of committing
and attempting to commit the offenses of burglary, kidnaping,
and robbery. Rector was convicted in 1982 and sentenced to death.
The Texas Court of Criminal Appeals affirmed Rector's conviction
and sentence. See Rector v. State, 738 S.W.2d 235 (Tex.Crim.App.1986).
The United States Supreme Court thereafter declined to issue a
writ of certiorari. See Rector v. Texas, 484 U.S. 872, 108 S.Ct.
202, 98 L.Ed.2d 153 (1987) (order denying certiorari review).
Rector then sought state
habeas relief. After an evidentiary hearing, the state trial
court made findings of fact and conclusions of law denying
Rector relief. The Court of Criminal Appeals affirmed the denial
of relief on the ground that the trial court's findings and
conclusions of law were fully supported in the record.
On May 19, 1988, Rector filed
a petition for habeas corpus in the United States District Court
for the Western District of Texas. While the case was pending,
Rector filed a second state habeas application in the state
trial court. Without conducting an evidentiary hearing, the
trial court denied relief. Rector once again applied for habeas
relief in the Court of Criminal Appeals. That court, recognizing
the pendency of the federal habeas petition, subsequently
dismissed Rector's habeas application under Texas's abstention
doctrine. On April 3, 1990, the federal district court dismissed
Rector's petition without prejudice for failure to exhaust state
Rector was back in state court
a third time, filing a habeas petition with the trial court on
December 8, 1992. The trial court, however, did not act on the
petition, which was submitted to the Court of Criminal Appeals
by operation of article 11.07 of the Texas Code of Criminal
Procedure. On February 29, 1993, the Court of Criminal Appeals
denied habeas relief, concluding that Rector's claims were
On November 12, 1993, Rector
sought to "reinstate and/or reactivate" his federal habeas
petition. Rector, however, moved to withdraw his petition on
June 10, 1994, and that motion was granted. On June 22, 1994,
Rector re-filed in federal court his petition for habeas corpus.
In a 54-page report filed on March 29, 1996, a magistrate judge
denied Rector relief; the district court, over Rector's
objections, adopted the magistrate judge's findings of fact and
conclusions of law and entered final judgment on May 14, 1996.
The district court also denied Rector's request for a CPC.
Rector filed a timely notice of appeal on June 10, 1996.
Rector makes three arguments
in this appeal. First, Rector argues that the Government
violated its Brady obligations by suppressing evidence of an
alleged alibi witness. Second, he claims that the district court
committed reversible error when it concluded that Rector did not
have the right to have all exhibits from the State habeas
hearing forwarded for inclusion in the federal habeas case for
possible in camera inspection under Rule 6(a) of the Federal
Habeas Rules of Procedure. And third, Rector contends that he
was denied effective assistance of counsel because his attorney
did not properly investigate the time-of-death evidence offered
by the State, which if investigated, would, in Rector's view,
establish his innocence. None of these claims has merit.
I. THE APPLICABILITY OF THE AEDPA
Before we discuss the
applicable standard of review and Rector's claims, we first
address the (now) thorny problem of whether the newly enacted
Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L.
104-132, 110 Stat. 1214 (1996) applies to Rector's appeal. Prior
to June 23, 1997, the answer to this question was settled in
this Circuit: the AEDPA did in fact apply to cases pending on
the day the President signed the bill into law (i.e., April 24,
1996). See Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), cert.
denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997).
As such, because Rector's federal habeas petition was pending as
of April 24, 1996, the AEDPA would have applied to this appeal.
On June 23, 1997--while this
appeal was pending in our court--the Supreme Court handed down
Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481
(1997), in which the Court held that (in noncapital cases at
least), the AEDPA does not apply to cases pending on the Act's
effective date. It is unclear whether or not the reasoning in
Lindh effectively overrules Drinkard (a capital case) and
compels us to apply pre-AEDPA standards to Rector's appeal.
We need not decide this
question, however, because its resolution is not necessary to
the disposition of Rector's appeal, for whether his claims are
analyzed under AEDPA or pre-AEDPA standards, Rector is not
entitled to federal habeas relief. See, e.g., Livingston v.
Johnson, 107 F.3d 297, 302 (5th Cir.1997). Accordingly, we apply
our pre-AEDPA case law to this appeal and construe Rector's
notice of appeal as a request for a CPC.
II. STANDARD OF REVIEW
The requirements for issuing a
CPC are well established.
Rector cannot appeal the district court's denial of federal
habeas relief unless he obtains a CPC from the district court or
this court. 28 U.S.C. § 2253, amended by AEDPA § 102. Because
the district court denied Rector's request for a CPC, Rector's
right to appeal turns on whether we find that he has made a "substantial
showing of the denial of a federal right." Barefoot v. Estelle,
463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).
In particular, Rector must "demonstrate
that the issues are debatable among jurists of reason; that a
court could resolve the issues (in a different manner); or that
the questions are adequate to deserve encouragement to proceed
further." Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (internal
citations and quotation marks omitted).
Rector need not, however,
demonstrate that he would ultimately prevail on the merits. See
Drew v. Collins, 5 F.3d 93, 95 (5th Cir.), cert. denied, 510
U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994). And " '[a]lthough
in a capital case the court may properly consider the nature of
the penalty in deciding whether to grant CPC, this alone does
not suffice to justify issuing a certificate.' " Turner v.
Johnson, 106 F.3d 1178, 1186 (5th Cir.1997) (quoting Jacobs v.
Scott, 31 F.3d 1319, 1323 (5th Cir.), cert. denied, 513 U.S.
1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995)).
III. THE ALLEGED BRADY VIOLATION
Underlying Rector's Brady
claim is his view that he is innocent of Davis's murder. As such,
Rector paints a different picture of the events on the night of
October 17, 1981--a view which boils down to the suggestion that
the State arrested, prosecuted, convicted, and sentenced to die
the wrong man. Urging, as Rector does, his factual innocence of
a crime which carries the (ultimate) sentence of death causes us
to proceed with great caution. Rector argues that he didn't kill
Davis because at the time Davis allegedly died (i.e., 11 p.m.),
Rector was supposedly seen at a local convenience store located
approximately eighteen minutes from the murder scene. Of course,
a jury of his peers disagreed, so we must now (almost sixteen
years after his conviction) determine whether the State withheld
from the defense information that could have exonerated Rector.
Rector claims that the State
violated its obligations under Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by suppressing material,
exculpatory information. In particular, Rector argues that a
statement given to police by Carolyn Stillwell, a convenience
store clerk, proves that Rector could not have murdered Davis
because, from his vantage point, Stillwell places him in a
different part of Austin at the time the murder allegedly took
We first lay out the Brady
requirements, and then present the alleged exculpatory evidence,
the rejection by state and federal courts of Rector's Brady
claim, and conclude with Rector's (rehashed) Brady claim in this
appeal. We ultimately hold, consistent with every other court
that has reviewed Rector's alleged Brady violation, that there
was no Brady violation under the facts of this case.
A. The Brady Requirements
Although the State is
obligated to disclose evidence to the defense, the State need
not disgorge every piece of evidence in its possession. Rather,
under Brady, the State has an affirmative duty to disclose to
the defense evidence that is favorable to the accused and
material to guilt. See United States v. Bagley, 473 U.S. 667,
674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985). Such evidence
includes impeachment evidence. Id. at 676, 105 S.Ct. at 3380;
see also Wilson v. Whitley, 28 F.3d 433, 435 (5th Cir.1994),
cert. denied, 513 U.S. 1091, 115 S.Ct. 754, 130 L.Ed.2d 653
(1995). The State's good or bad faith in withholding favorable
evidence is irrelevant. See United States v. Agurs, 427 U.S. 97,
110, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1976).
We have held that to state a
Brady claim, a defendant must demonstrate that (1) the
prosecution suppressed evidence, (2) the evidence was favorable,
(3) the evidence was material to either guilt or punishment, and
(4) discovery of the allegedly favorable evidence was not the
result of a lack of due diligence. See United States v. Mmahat,
106 F.3d 89, 94 (5th Cir.1997); Blackmon v. Scott, 22 F.3d 560,
564 (5th Cir.), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130
L.Ed.2d 604 (1994). The State has no obligation to point the
defense toward potentially exculpatory evidence when that
evidence is either in the possession of the defendant or can be
discovered by exercising due diligence. See United States v.
Mmahat, 106 F.3d at 94; Brown v. Cain, 104 F.3d 744, 750 (5th
Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 1489, 137 L.Ed.2d
699 (1997). Nor is the State obligated under Brady to disclose
evidence that is available from other sources. See Blackmon v.
Scott, 22 F.3d at 560.
B. The Alleged Brady
Material--The Stillwell Statement
The record reflects that at
some point during the week following Davis's murder, Officer
Allen Anderson was informed that on the evening of the murder (October
17, 1981), the suspects (Rector, Anthony Miller, and Howard Ray
Simon) were "looking for a convenience store to rob." Anderson
visited all of the convenience stores in the University of Texas
area (twenty or so stores) to determine whether anyone had seen
the suspects. After speaking with Stillwell, a clerk at a
convenience store at Airport Boulevard and 51st Street, Anderson
wrote the following report on October 24, 1981:
At the U-Tote-M store at E.
51st and Airport, Carolyn Stillwell (Candy) ... who was positive
that Charles Rector and Anthony Miller were in her store
Saturday night 10/17/81. She stated that she was sure and
especially of Miller because he looked a lot [sic ] like a black/male
who hasselled [sic ] her previously and she looked at him real
good to make sure it was not that same person. She stated that
Rector and Miller came in and stood around the back of the
store. They got four quarters for a dollar bill and played the
video game ... for awhile. She stated a couple of other black/males
and a white dude came in at the same time but that they left in
a pickup truck with two Latins in the back of the truck. Ms.
Stillwell stated that Rector and Miller stayed appx. 30-45
minutes and then left and that she did not see what they left
in. She stated that they were in before closing (12 midnight),
and left just before closing. She stated they came in about
Stillwell did not testify at
Rector's trial. However, the State called her as a rebuttal
witness in the trial of Rector's co-defendant, Anthony Miller.
We find it helpful, indeed illuminating, to recount Stillwell's
testimony at Miller's trial because it sheds valuable light on
the alleged exculpatory nature of the information possessed by
At Miller's trial, Stillwell
identified Miller and Rector as two of the three men she saw in
the U-Tote-M store after 11 p.m. on the night of Davis's murder.
As to the time at which she noticed Rector and Miller, Stillwell
testified that "[i]t was around closing. Around--It was after
11:00. Around 11:30, 12 o'clock, because we had started the
cleanup procedure for closing at midnight." Stillwell also
testified that after the three men entered the store, one went
back outside and stood by the front door.
According to Stillwell, Rector
and Miller were in the store for approximately 15-20 minutes.
After they left, "[t]he gentleman that had been standing outside
got in a dark colored pickup with some other people in back of
it and left. And the two that were in the store had got in the
car they pulled up in and left. And I [Stillwell] did not see
which direction they went. The people in the pickup went towards
Lamar, up Airport, which would be northwest."
On cross examination, Miller's
counsel (counsel for Rector in this case) impeached Stillwell
regarding inconsistencies between her testimony and Officer
Anderson's account of her statement. Stillwell did not recall
telling Officer Anderson that Rector and Miller had stayed in
the store for thirty to forty-five minutes.
In addition, Stillwell stated
that the two men had not played the video game that night,
although she subsequently testified that she could not remember
whether or not they had in fact played the game. Stillwell
claimed that Rector and Miller came into the store at 11:30 p.m.
(around closing) and left about twenty to thirty minutes before
C. Rector's Claims
Rector claims that he has
satisfied the Brady requirements because the Stillwell statement
proves that he could not have murdered Davis at the time and
place claimed by the State. On habeas review,
this same claim was rejected by Texas state courts as well as
the federal district court.
1. State Habeas Review of Rector's Brady
In its March 1988 rejection of
Rector's Brady claim, the state habeas court (the trial judge
who presided over Rector's criminal prosecution) concluded that
Stillwell's statement was neither relevant nor material to any
issue or defense raised in Rector's trial. The state court
relied on the written confession of Rector's co-defendant,
Howard Ray Simon (who subsequently escaped from prison and was
shot and killed during a robbery attempt in Louisiana), which
implicated Rector as the trigger man;
Rector's failure to explain adequately to the police his
possession of jewelry belonging to Davis as well as possession
of a .22 caliber pistol with two spent rounds; Rector's failure
to file a more specific Brady request; and the lack of
corroboration between Rector's statement of events to police and
Stillwell's statement to Officer Anderson.
2. Federal Habeas Review (The
Magistrate's Report) of
Rector's Brady Claim
The Magistrate also rejected
Rector's Brady claim, concluding that the Stillwell statement
was not suppressed, did not contain evidence favorable to
Rector, was not material, and could have been obtained with the
exercise of due diligence (i.e., Rector's failure to discover
the Stillwell testimony was the result of a lack of due
diligence on his part).
Although we conclude that
Rector has not met any one of the four Brady requirements, we
nonetheless analyze each of the Brady prongs because Rector has
been sentenced to die for a crime he alleges he did not commit.
1. The Prosecution did not
Suppress the Stillwell Statement
We have held that "[e]vidence
is not 'suppressed' if the defendant either knew, or should have
known of the essential facts permitting him to take advantage of
any exculpatory evidence." West v. Johnson, 92 F.3d 1385, 1399
(5th Cir.1996). "The prosecutor," we have concluded, "is under
no duty to make a complete and detailed accounting to defense
counsel of all investigatory work done." Blackmon, 22 F.3d at
The Magistrate judge concluded
that Rector, better than anyone else, knew his whereabouts on
the night of Davis's murder, and therefore his failure to
discover the information possessed by Stillwell was the result
of a lack of diligence on his part. We agree.
Rector continuously reminds us
that this is a circumstantial evidence case that is fact
sensitive. That the case against Rector is built on
circumstantial evidence does not diminish the correctness of the
Magistrate judge's findings. Moreover, given Rector's consistent
claim of factual innocence, we find it highly unlikely that from
the very beginning of this prosecution, Rector would not have
provided defense counsel a minute-by-minute account of his
whereabouts on the night of the murder.
Rector had an investigator
ready to follow up any leads Rector may have provided in the way
of an alibi. And we have canvassed the record and have found no
indication that at any point after Davis's murder and Rector's
trial that Stillwell was contacted by defense counsel and/or
that Stillwell was unavailable for questioning. Under these
circumstances, we conclude that the State did not suppress
allegedly exculpatory evidence because that evidence was (readily)
available to defense counsel.
Rector's contention that he
could not have told his attorneys where he was the night of the
murder because he really had no idea of his whereabouts is
simply implausible. The record showed that Rector had lived in
Austin at least seven months and that Rector's own statements to
police officers (e.g., that he could give someone a ride "up the
street") demonstrates to us that Rector was fully capable of
understanding and describing his whereabouts on the night of
October 17, 1981.
2. The Stillwell Statement
is not Exculpatory
The Texas Court of Criminal
Appeals, the state habeas court, and the Magistrate judge all
concluded that the Stillwell statement was not exculpatory. We
have reviewed Rector's arguments as well as the record and see
no reason to reach a different conclusion here.
Rector contends that the
Stillwell statement is exculpatory because it in conjunction
with medical examiner Bayardo's testimony that Davis died "most
probably ... around 11 p.m." suggests that Rector could not have
possibly raped and murdered Davis. In particular, Rector asserts
that if Stillwell saw Rector (and Miller) at approximately 11
p.m., he could not have killed Davis because there was testimony
from Rector's medical expert that death from drowning occurs in
five to ten minutes. We cannot agree with Rector's version of
The fundamental flaw in
Rector's argument is that he assumes that Dr. Bayardo said that
Davis in fact died at 11 p.m. Of course, a cursory reading of
the testimony reveals that Rector's construction is just plain
incorrect. Dr. Bayardo's estimated time of death was in the form
of a probability determination, and not a conclusive statement
as to Davis's actual time of death. Indeed, Dr. Bayardo
repeatedly stated that there is no precise scientific method for
pinpointing the exact time of death; such determinations,
according to Dr. Bayardo, are only rough estimates. As such, Dr.
Bayardo testified that in light of this relatively inexact
method of calculating death times, Davis could have died as
early as 9 p.m. and as late as the early morning hours of
October 18, 1981.
Based on the evidence
presented, the jury must have necessarily concluded that Davis
died between 9 p.m. (the approximate time of her abduction) and
11:15 or 11:35 p.m. As such, Stillwell's statement that she
supposedly saw Rector at 11 p.m. or later does not refute the
State's theory that Rector murdered Davis. And that is precisely
what the state habeas court found:
The victim was kidnapped from
her home shortly after 9:00 p.m., and the defendant was arrested
shortly after 11:30 p.m. on the same night, which provided ample
opportunity for the defendant to have taken [Davis] to Red Bud
Isle, to have raped her and shot her and thrown her in water and
left her to drown. Where the defendant was between 11:00 p.m.
and his arrest at 11:35 or 11:40 p.m. would be quite immaterial.
The state court's factual
finding that Rector had ample time to commit the murder is
entitled to a presumption of correctness. See 28 U.S.C. §
2254(d) (now § 2254(e)(1)). We have reviewed the record and
conclude that Rector has not rebutted this presumption.
3. The Stillwell Statement
is not Material in the
The Supreme Court has said
that "[a] defendant need not demonstrate that after discounting
the inculpatory evidence in light of the undisclosed evidence,
there would not have been enough left to convict." Kyles v.
Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 1566, 131 L.Ed.2d
490 (1995). "[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." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.
3375, 3383, 87 L.Ed.2d 481 (1985).
Furthermore, "[t]he mere
possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the
trial, does not establish 'materiality' in the constitutional
sense." Agurs, 427 U.S. at 109-10, 96 S.Ct. at 2400. Rather,
Rector must show that Stillwell's statement could reasonably be
taken to put the whole case in a different light so as to
undermine confidence in the verdict. Kyles, 514 U.S. at 434-35,
115 S.Ct. at 1566.
We conclude that Stillwell's
statement was not material in the constitutional sense and does
not undermine our confidence in the jury's verdict of guilt. The
following facts support our conclusion: Rector possessed a
number of items that were stolen from Davis's apartment; Rector
had in his possession clothes and jewelry Davis was wearing when
she was abducted; Rector was wearing Davis's size 6 Calvin Klein
jeans; Rector possessed a gun that was consistent with the
murder weapon; Rector's knife was in Davis's apartment; Rector
appeared at Davis's apartment complex shortly after her
abduction and murder; and Stillwell's version of events, as we
have noted above, contradicts (or at least is inconsistent with)
Rector's statement to police about the color of the pickup truck,
the location of the convenience store, and the alleged
interaction between Rector and the pickup truck occupants.
4. Rector's Failure to
Obtain Stillwell's Statement is the Result of a Lack of Due
Diligence on his Part
For the reasons we stated
above in Part III.D.1, we conclude that Rector's failure to
exercise due diligence was the sole cause of his failure to
obtain the Stillwell evidence before his trial.
IV. DISCOVERY UNDER RULE 6
OF THE FEDERAL HABEAS RULES OF PROCEDURE
Rector next argues that the
district court reversibly erred in declining to include in the
federal habeas record an exhibit that was before the state
habeas courts. According to Rector, Court Exhibit No. 1
consisted of the State's prosecution file in this matter; it was
admitted into evidence and for in camera inspection during the
state habeas corpus hearing on February 5, 1988. The exhibit was
subsequently sealed and forwarded to the Texas Court of Criminal
Appeals. Exhibit No. 1, however, never made its way into the
federal habeas file presented to the magistrate judge.
Accordingly, Rector moved the
magistrate to inspect in camera Exhibit No. 1 on the ground that
the State's files may contain further evidence of suppression of
exculpatory information. The motion was denied, so Exhibit No. 1
is not part of the record in this appeal. Rector claims that
because this is a death penalty case, excluding from review
information which may potentially exculpate Rector would be
manifestly unjust. We reject Rector's contentions.
A habeas petitioner may "invoke
the processes of discovery available under the Federal Rules of
Civil Procedure if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants leave
to do so, but not otherwise." Habeas Rule 6(a). Rule 6 does not,
however, sanction fishing expeditions based on a petitioner's
conclusory allegations. See Perillo v. Johnson, 79 F.3d 441, 444
Rather, "[a] federal habeas
court must allow discovery and an evidentiary hearing only where
a factual dispute, if resolved in the petitioner's favor, would
entitle him to relief and the state has not afforded the
petitioner a full and fair evidentiary hearing." Ward v. Whitley,
21 F.3d 1355, 1367 (5th Cir.1994) (emphasis added), cert. denied,
513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995).
Rector has made no showing
that there is a factual dispute that, if resolved in his favor,
would entitle him to federal habeas relief. Rector argues that
further discovery into the contents of the prosecution's file
may produce additional information that would be relevant to his
Brady claims. Because Rector has failed to make at least a prima
facie showing of what specifically he intends to find and prove,
we conclude that Rector's discovery request is nothing more than
a desire to engage in a fishing expedition. Nor have we found
any authority for the proposition that the mere assertion of a
Brady claim necessarily amounts to good cause.
As to Rector's claim that the
state habeas records are incomplete without the sealed exhibit,
Habeas Rule 5 does not require the Director to file portions of
the state court record that are not relevant to Rector's habeas
claims. See Dillard v. Blackburn, 780 F.2d 509, 513 (5th
Cir.1986). A federal habeas court has the discretion to
determine whether additional state court records are necessary
to decide Rector's claims. Id. Here again, Rector has simply
failed to explain precisely how the sealed exhibit is necessary
to resolve his claims.
V. THE INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM
We finally turn to Rector
ineffective assistance of counsel claim. Rector argues that he
received ineffective assistance of counsel because (1) during
the guilt phase of the trial, trial counsel failed to adequately
investigate and rebut Dr. Bayardo's testimony about Davis's time
of death, and (2) during the punishment phase of the trial,
counsel failed to present mitigating evidence. None of Rector's
claims has merit. The Magistrate judge denied Rector's
ineffective assistance claim.
In Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme
Court laid down the by-now familiar two-part test for resolving
ineffective assistance of counsel claims. Under that test,
Rector must show that (1) counsel's performance was deficient,
and (2) that that deficiency prejudiced the defense such that
the result of the trial would have been different. Id. at 687,
104 S.Ct. at 2064; Lackey v. Johnson, 116 F.3d 149, 152 (5th
Failure to meet either of the
two Strickland prongs would be fatal to Rector's claim.
Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. Rector bears the
burden of proving both prongs by a preponderance of the evidence.
See Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir.1992), cert.
denied, 508 U.S. 978, 113 S.Ct. 2977, 125 L.Ed.2d 675 (1993). We
review de novo the district court's denial of Rector's
Strickland claim. See Carter v. Johnson, 110 F.3d 1098, 1110
To establish deficient
performance, Rector must show that "counsel made errors so
serious that counsel was not functioning as the 'counsel'
guaranteed ... by the Sixth Amendment." Strickland, 466 U.S. at
687, 104 S.Ct. at 2064. "[J]udicial scrutiny of counsel's
performance must be highly deferential," and we must strive to
eliminate the potential "distorting effect of hindsight." Id. at
689, 104 S.Ct. at 2065.
Accordingly, we must "indulge
a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Id. To prove
prejudice, Rector must demonstrate that the result of the
proceedings would have been different or that counsel's
performance rendered the result of the proceeding fundamentally
unfair or unreliable. Vuong v. Scott, 62 F.3d 673, 685 (5th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 557, 133 L.Ed.2d
Rector has neither shown
deficient performance nor prejudice. As to Rector's claim that
his counsel failed to rebut the time-of-death evidence, the
record reveals that Rector's counsel elicited from Dr. Bayardo
on cross examination testimony that Davis could have died well
after 11 p.m. At the state habeas hearing, nothing said by
Rector's own medical expert undermines (or even calls into
question) Dr. Bayardo's testimony that his time-of-death
estimate was just that, a rough estimate. And given all of the
evidence we have recounted above which implicated Rector in the
murder of Davis, we cannot conclude that any alleged deficient
performance would have made a difference in the outcome of this
As to Rector's claim that
counsel was ineffective for failing to put on mitigating
evidence at the punishment phase of the trial, we note at the
outset that such failure is not per se ineffective assistance.
See King v. Puckett, 1 F.3d 280, 284 (5th Cir.1993). If such an
omission is based on well informed, strategic decisions, it is "well
within the range of practical choices not to be second-guessed."
Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.1992), cert.
denied, 509 U.S. 921, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993).
Rector admits that trial
counsel investigated his background and obtained information
that Rector allegedly suffered from child abuse, family
instability, a poor educational background, low IQ, gunshot
injuries, and that his mother was severely and chronically
mentally ill. And counsel for Rector admitted in prior
proceedings that they chose not to present such evidence because
the jury might very well consider that evidence aggravating,
rather than mitigating.
Under these facts, Rector has
failed to show deficient performance, for as we held in Mann v.
Scott, 41 F.3d 968, 984 (5th Cir.1994), cert. denied, 514 U.S.
1117, 115 S.Ct. 1977, 131 L.Ed.2d 865 (1995), a tactical
decision not to pursue and present potential mitigating evidence
on the grounds that it is double-edged in nature is objectively
reasonable, and therefore does not amount to deficient
As to prejudice, Rector has
presented no specific evidence of any of the potentially
mitigating circumstances. Without a specific, affirmative
showing of what the missing evidence would have been, we cannot
determine whether Rector was prejudiced by the absence of such
evidence at trial. See Anderson v. Collins, 18 F.3d 1208, 1221
Finding that Rector has failed
to make a substantial showing of a denial of a federal right, we
decline to issue a CPC and affirm Rector's conviction and
sentence of death for the murder of Carolyn Kay Davis.
CPC DENIED; CONVICTION AND