# Opposition Brief — Graham v. Johnson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1097

## Text

SS eee EL a a a eS eT Ne RN RS ON

SUPIEMB VOUT ew

FILED
oT .
C SEP 2 1695
No. 98-10002 OFEIGE OF THE CLERK
In Che

Supreme Court of Che United States

GARY GRAHAM,
Petitioner,
V.

GARY JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent.

On Petition For Wnt of Certiorari
To The United States Court of Appeals For the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JOHN CORNYN : GENA BLOUNT BUNN

ATTORNEY GENERAL OF TEXAS ASSISTANT ATTORNEY GENERAL
CHIEF, CAPITAL LITIGATION DIVISION

ANDY TAYLOR
FIRST ASSISTANT ATTORNEY GENERAL *TOMMY L. SKAGGS
ASSISTANT ATTORNEY GENERAL

SHANE PHELPS
DEPUTY ATTORNEY GENERAL P.O. BOX 12548, CAPITOL STATION
FOR CRIMINAL JUSTICE AUSTIN, TEXAS 78711

(512) 936-1600

ATTORNEYS FOR RESPONDENT

* COUNSEL OF RECORD

QUESTIONS PRESENTED

Whether the lower court erred in dismissing a petitioner’s fourth
federal habeas petition as a successive petition under 28 U.S.C. §
2244(b), as amended by the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“the AEDPA”), when the petitioner’s first
federal habeas petition had been previously litigated to finality on the
merits, applying the successive petition standards of the AEDPA does
not offend retroactivity principles, and the fourth petition was not filed
in a timely manner.

Whether the lower court erred in refusing to grant a petitioner's
motion to recall a prior mandate when the petitioner’s motion was
merely an attempt to circumvent application of the successive petition
bar of 28 U.S.C. § 2244(b), as amended by the AEDPA, and the
petitioner failed to act with due diligence.

TABLE OF CONTENTS

QUESTIONS PRESENTED (i neesecsesecsesseeereeeeerece ee reerseeaneesensenensenictee
TABLE OF AUTHORITIES —__eeseccecteeceseeeteeeeteeeseenecessenserseeratereneees oe
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CONSTITUTIONAL PROVISIONS INVOLVED __........ RAR att oa OS Mote
STATEMENT OF THE CASE i vccceeccecsssccssveccessecennressesenesscneaesenseserens |
A. Course of Proceedings and Disposition Below ..........

B. ON GE FE sesccsenicsscvnesensonteciznsvionnstisricetenrcarerioennitistettts
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REASONS FOR DENYING THE WRIT ooieesececcsessesccsserecesnensnssrencssonseoeess

I. THE QUESTIONS PRESENTED FOR REVIEW ARE
UNWORTHY OF THIS COURT'S ATTENTION. _..............

0. ©THE LOWER COURT CORRECTLY HELD THAT
GRAHAM’S FOURTH FEDERAL PETITION WAS

BARRED BY THE AEDPA. ...0.00.:cccccccsccscsscecovoseersserresssers
A. Graham’s fourth habeas petition is not
a continuation of his first habeas petition. .......... ...

B. Applying the successive petition bar of
the AEDPA to Graham’s fourth habeas
petition does not offend retroactivity principles.

G If Graham’s fourth petition is not barred
as a successive petition, it is time barred.

111. THE LOWER COURT PROPERLY REFUSED TO
RECALL ITS PRIOR MANDATE. .....--c-cccccosseccoveeceessees

A. Graham’s motion to recall the prior mandate
was subject to the AEDPA.

to

19

19

21

23

26

26

TABLE OF CONTENTS, continued

Page
B. The denial of Graham’s motion to recall the
prior mandate did not deprive Graham of
a ocanenenaidnadasaiin 27
IIIT = 10 Yerkes 2 cca saicadeatdesaaipantantiqeanico doe deadeusei ean) 28

TABLE OF AUTHORITIES
Cases
Brown v. Angelone, 150 F.3d 370 (4th Cir. 1998) eects
Brown v. O'Dea, __ F.3d ___, 1999 WL 587209 (6th Cir. 1999) :
Calderon v. Thompson, __ U.S. ___, 118 S. Ct. 1489 (1998)...
Dictado v. Ducharme, __ F.3d ___, WL 646953 (9th Cir. 1999)
Felker v. Turpin, 518 U.S. 651 (1996) .eeseeeeeeeteeeetes pore
Ford v. Wainwright, 477 U.S.399 (1986) eres
Gaskins v. Duval, _ F.3d ___, 1999 WL 447129 (Ist Cir. 1999) .
Haney v. Addison, 175 F.3d.1217 (10th Cir, 1999) eres
Kiser v. Johnson, 163 F.3d326 (Sth Cir. 1999) noc
Landgraf v. USI Film Products, 511 U.S. 244 (1994) ences

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), rev 'd on other grounds,
Lindh v. Murphy, 521 U.S.320 (1997) oeeceecceeccceteeeeees

Lindh v. Murphy, 521 U.S. 320 (1997) sssssssssssssseseesstestctetrosteen

Lucas v. Johnson, 132 F.3d 1068 (Sth Cir.), cert. dismissed,
US. __(1GIB)eersesecsesensseseseessecnenescsersneseceesensnenenenen

Lovasz v. Vaughn, 134 F.3d 146 (3rd Cir. 1998) 0.0... ccc

Mancuso 'v. Herbert, 166 F.3d 97 (2nd Cir.), cert. denied,
__ US. __, 119 S. Ct. 2376 (1999) nee eect reece

Marshall v. Lonberger, 489 U.S.422 (1983) cette
McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454 (1991)
Nichols v. Bowersox, 172 F.3d 1068, 1073 (8th Cir. 1999) ee.
Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct. 1618 (1998)

Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209 (11th Cir. 1998)

-1V-

“TABLE OF AUTHORITIES, continued

Constitutions, Statutes and Rules

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TEX. CODE CRIM. PROC. ANN. art. 11.071
TEX. CODE CRIM. PROC. ANN. art. 37.071

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Miscellaneous

ANTI-TERRORISM AND EFFECTIVE DEATH
PENALTY ACT OF 1996 (“AEDPA”)

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No. 98-10002

3Jn Che
Supreme Court of Che United States

GARY GRAHAM,
Petitioner,
Vv.

GARY JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent.

On Petition For Wnt of Certiorari
To The United States Court of Appeals For the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

NOW COMES Gary Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent herein, by and through the Attorney General of Texas and
files this Brief in Opposition.'

OPINION BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit affirming the

judgment of the district court dismissing Graham's petition for federal writ of habeas corpus

is published at Graham v. Johnson, 168 F.3d 762 (Sth Cir. 1999).

1

For clarity, the respondent will be referred to as “the Director” and the
petitioner as “Graham.”

JURISDICTION
Graham seeks to invoke the jurisdiction of the Court under the provisions of 28 U.S.C.
§1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
Graham alleges the denial of rights guaranteed under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
STATEMENT OF CASE
A. Course of Proceedings and Disposition Below
In June 1981, Graham was indicted in Harris County, Texas, in cause no. 335378, for
the capital offense of murdering Bobby Lambert in the course of committing and attempting
to commit robbery and for the felony offenses of murder (two counts) and aggravated
robbery. Tr 5.2 On October 26, 1981, the State abandoned the non-capital charges and
Graham entered a plea of not guilty to capital murder. Tr 110-11. The jury found Graham
guilty of capital murder on October 28, 1981. Tr 63, 114. A separate punishment hearing
ensued, and, on October 30, 1981, the jury answered affirmatively the three special issues
submitted pursuant to the former Article 37.071 of the Texas Code of Criminal Procedure.

Tr 70-72, 116.’ In accordance with state law, the trial court (the 182nd District Court of

; “Tr” refers to the documents filed in the underlying cause, or transcript, by

volume and page number. “SR” refers to the transcription of the trial proceedings, or
statement of facts, by volume and page number.

, The trial court submitted the following special issues to the jury:

(1) Do you find from the evidence beyond a reasonable doubt
that the conduct of the Defendant that caused the death of the
deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result?

(2) Do you find from the evidence beyond a reasonable doubt

2

Harris County, Texas) assessed punishment at death. Tr 73-75.

Graham’s conviction and sentence of death were automatically appealed to the Texas
Court of Criminal Appeals, which affirmed in an unpublished opinion issued June 13, 1984.
See Graham v. State, 671 S.W.2d529(Tex.Cnm.App. 1984). Graham did not seek cernoran
review to this Court.

On July 13, 1987, Graham filed his first application for state wnt of habeas corpus.
After an evidentiary hearing, the tnal court recommended that the application be denied. In
an unpublished opinion issued on February 19, 1988, the Court of Criminal Appeals denied
Graham's first application for state wnt of habeas corpus. Ex parte Graham, No. 17,568-01.
Graham did not seek certiorari review to this Court.

Graham then filed his first federal habeas petition in the United States District Court
for the Southern District of Texas on February 23, 1988. Graham v. Lynaugh, Civil Action
No. H-88-563. The district court denied relief on February 24, 1988, in an unpublished
opinion. The United States Court of Appeals for the Fifth Circuit affirmed the judgment of
the district court on August 31, 1988. Graham v. Lynaugh, 854 F.2d 715 (Sth Cir. 1988).
However, on June 3, 1989, this Court remanded the case for further consideration. Graham
v. Lynaugh, 492 U.S. 915 (1989). On remand, the Fifth Circuit vacated Graham’s death
sentence on March 7, 1990. Graham v. Lynaugh, 896 F.2d 893 (Sth Cir. 1990). On January

that there is a probability the Defendant would commit cnminal
acts of violence that would constitute a continuing threat to
society?

(3) Do you find from the evidence beyond a reasonable doubt
whether the conduct of the Defendant in killing the deceased
was unreasonable in response to the provocation, if any, by the
deceased?

Tr 70-72.

3, 1992, the Fifth Circuit, however, reversed itself and denied habeas relief. Graham v.
Collins, 950 F.2d 1009 (Sth Cir. 1992). This Court granted certioran review, and. on
January 25, 1993, affirmed the denial of habeas relief. Graham v. Collins, 506 U.S. 461
(1993). On March 1, 1993, the Court denied rehearing. Graham v. Collins, 507 U.S. 968
(1993).

On April 20, 1993, Graham filed a second application for state wnt of habeas corpus.
That application was denied by the Court of Cnminal Appeals on Apnil 27, 1993. Ex parte
Graham, 853 S.W.2d 564 (Tex.Crim.App. 1993) (No. 17,568-02). This Court denied
certiorari review on May 24, 1993. Graham v. Texas, 508 U.S. 945 (1993). On June 2,
1993, the Court of Criminal Appeals overruled a motion for reconsideration filed by Graham.
Ex parte Graham, 853 S.W.2d 565 (Tex.Crim.App. 1993) (No. 17,568-03).

In the interim, on Apnil 28, 1993, Graham had filed a second federal habeas petition
in the United States District Court for the Southern District of Texas, which he voluntarily
dismissed the day it was filed. On July 22, 1993, Graham filed his third federal habeas
petition in the United States District Court for the Southern District of Texas. Graham v.
Collins, Civil Action No. H-93-2217. The district court denied relief on August 13, 1993.
Graham v. Collins, 829 F.Supp. 204 (S.D.Tex. 1993). On August 28, 1996, the Fifth Circuit,
declining to accept the State’s waiver of the exhaustion requirement, remanded the third
federal habeas petition to the district court with directions to dismiss the petition without
prejudice for failure to exhaust state court remedies. Graham v. Johnson, 94 F.3d 958 (Sth
Cir. 1996). Graham’s motion for rehearing was denied on September 26, 1996. On remand,
the district court entered an order on October 11, 1996, dismissing Graham’s third federal

habeas petition without prejudice for failure to exhaust state court remedies.

Graham sat idle for more than one and a half years, then filed his third application for

state writ of habeas corpus on April 27, 1998. In an unpublished opinion issued on
November 18, 1998, the Court of Criminal Appeals dismissed that application pursuant to
Texas’ statutory prohibition against successive applications. Ex parte Graham, No. 17,568-
05. Graham did not seek certiorari review to this Court.

On December 18, 1998, Graham filed his fourth federal habeas petition in the United
States District Court for the Southern District of Texas. Graham v. Johnson, Civil Action
No. H-98-4241. On January 7, 1999, the district court found that it lacked junsdiction to
consider the petition and dismissed the petition. Graham v. Johnson, 45 F.Supp.2d 555
(S.D.Tex. 1999). On February 25, 1999, the Fifth Circuit affirmed the district court’s
dismissal, denied Graham authorization to file a successive petition, and denied a motion to
recall the mandate regarding Graham’s third federal petition. Graham v. Johnson, 168 F.3d
762 (5th Cir. 1999). On March 23, 1999, a motion for rehearing was denied. Graham’s
petition for writ of certiorari followed. An execution date has not been set to date.

B. Statement of Facts

Guilt-Innocence Phase _

During Graham’s 1981 trial, Wilma Amos testified that she arrived at a Safeway
grocery store, located at 8945 North Freeway, in Houston, Harris County, Texas, at
approximately 9:21 p.m. on May 13, 1981. 14SR 159-160. While inside the grocery store,
Amos spoke with a man whom she later identified as the victim, Bobby Lambert. 14 SR
160-162. Amos talked to Lambert about the price of gloves as Lambert was selecting a pair
of gloves. 14 SR 160-163. Amos also saw a man, wearing dark pants and a white jacket,
who was walking slowly and looking at Lambert. 14 SR 163-164, 178. As Amos stood in

the check-out line, she saw that man leave the store. 14 SR 163-164. Amos left the line to

get another item, and when she returned, Lambert had left the store carrying a grocery bag.

14 SR165-166.

After leaving the grocery store, Amos went to her van in the parking lot and heard
someone blow acar horn. 14 SR 168-69. Amos noticed two people, Lambert and the other
man she had seen earlier, “tusseling.” 14 SR 169-171. Amos stood in front of her van and
watched the other man shoot Lambert and then run toward the back of the store. 14 SR 172-
173. Amos could not remember the shooter’s physical features to identify him, and testified
that after the shooting she returned home and drank “half a fifth [of vodka]” to “get [her]
nerves together.” 14 SR 172-173, 175. Amos was also taking Valium during May 1981.
14 SR 174. .

Daniel Grady testified that he arrived at the Safeway store between 9:30 p.m. and
10:00 p.m. and remained in his 1972 Oldsmobile, parked in front of the door, while his wife
went inside the store. 14 SR 193-95. Grady testified that he could see faces, people, and
objects in the parking lot. 14 SR 197. Grady saw a man later identified as Lambert exit the
store carrying a bag of groceries. 14 SR 197, 212-13. As Lambert walked in front of Grady's
car, a man, wearing dark pants and a white jacket, bumped into Lambert. 14 SR 197-200.
As the man reached around to Lambert’s back pocket for his wallet, Lambert dropped his
groceries and tried to get away from the man. 14 SR 201-02. The attacker then drew a
pistol, his arms fully extended, and shot Lambert. 14 SR 204-07. Lambert had nothing in
his hands after he dropped his groceries. 14 SR 207-08. Grady dropped to the floorboard
of his car when he heard the shot and crawled toward the other car door to let himself out.
14 SR 209. When Grady got out of the car, he saw the shooter running across the parking
lot. 14 SR 209-12. Lambert propped himself up on the hood of Grady’s car, then began
walking toward the store. 14 SR 210-12. Just before Lambert collapsed in the doorway,

Grady came to his assistance and Lambert subsequently died in Grady’s arms. 14 SR 212-

14. Although Grady saw the shooter’s face, he did not think he could identify him. 14 SR
209.

Bernadine Skillern testified that she arrived at the Safeway at about 9:30 p.m. with
her three children. 14 SR 233-34. After she dropped her oldest daughter off at the store's
entrance, she circled the lot then parked under a double lamp. 14 SR 235. She stayed in her
car with her other two children who were attempting to sleep in the back seat. 14 SR 235-36.
Skillern watched Lambert walk alone out of the grocery store carrying a grocery sack. 15
SR 236-37. The parking lot was well-lit; she could see and recognize people. 15 SR 240.

Skillen watched a man, dressed in dark pants and a white jacket, approach Lambert
from the rear. 15 SR 322-23. Skillern identified Graham as the man who approached
Lambert. 15 SR 331, 352-53. Skillern testified that Graham approached Lambert from
behind at an angle and touched Lambert’s pants pocket. 15 SR 323-26. Lambert then turned
to face Graham. 15 SR 326-27. Graham grabbed Lambert by the neck and held a gun to
Lambert’s head. 15 $R 327-29. Skillern honked her car horn and Graham tured and looked
directly at her. 15 SR 330-31. Then, standing with his arms fully extended, Graham shot
Lambert. 15 SR 332-33. Lambert fell against Grady’s car, then slid off onto the ground.
15 SR 332. Skillern then started her car, turned on her lights. and followed Graham as he
walked quickly to the cross street. 15 SR 336-38. Then, Graham hesitated, looked back at
Skillen, and began to run. 15 SR 337-38. Skillern quit following Graham because her
children were screaming. 15 SR 341.

Meschell Gilliam testified that she was working as a checker at the Safeway store on
the night of the offense and that Lambert bought twenty dollars worth of grocenes with a
hundred dollar bill. 14 SR 57-59. When J. W. Ellis, Houston Police Department Detective,

looked in Lambert’s pockets at the scene of the offense, he found sixty one-hundred dollar

bills and miscellaneous coins. 14 SR 78-79.

The medical examiner conducted an autopsy of Lambert on May 14, 1981, and
recovered a bullet consistent with a .22 caliber gun. 15 SR 397-98, 403. Lambert died from
a gunshot wound to the chest. 15 SR 403, 405. The absence of soot around the wound
indicated that the shooter had held the gun at least eighteen inches from the entry of the
wound. 15 SR 404.

Punishment Phase

Linda Jennings testified that on May 14, 1981, she and her friend Karen drove to a
car wash about 9:15 p.m. to wash a Cadillac that she had borrowed from George O’Bear to
use for her high school prom. 17 SR 95-97. After the girls pulled into one of the brightly
lit car wash stalls, Graham pulled his car in behind their car. 17 SR 98-99. Graham spoke
to Karen as Jennings washed the car. 17SR 100. As Jennings finished washing her car,
Graham got in her borrowed car on the driver’s side; Karen was already sitting in the
passenger seat by that time. 17 SR 102-04. Graham offered to give Jennings a check for
$9,000 for the car, but Jennings asked Graham to get out of the car. 17 SR 104-06. Instead
of getting out of the car, Graham started the car. 17 SR 106. When Jennings again asked
Graham to get out of the car, Graham pulied a gun from his briefcase, put it in Karen’s face,
and told her to “get out, bitch.” 17 SR 106-07. After Karen ran from the car, Graham
pointed the gun at Jennings’ chest and told her to move. 17 SR 108. Graham then drove
away in Jennings’ borrowed Cadillac with Jennings’ purse still in the car. 17 SR 110.

On May 14, 1981, at approximately 10:00 p.m., Greg Jones was sitting in his van in
the parking lot of a Stop-and-Go waiting for a friend to buy cigarettes. 17 SR 296-97.
Graham came out of the store, approached Jones’ friend, and began talking to him. 17 SR

299. As Jones’ friend entered the store, Graham approached Jones’ van, asking him if he

wanted to buy some marijuana 17 SR 300. After Jones told Graham he had no money.
Graham asked Jones if he wanted to smoke some marijuana with him. 17 SR 300. After
Jones’ friend returned from the store, Graham and another male got in the van with Jones and
his friend to smoke some marijuana. 17 SR 300-02. Jones moved the van further from the
store, and all four smoked one marijuana cigarette. 17 SR 303. Afterwards, Graham pulled
out a gun, stuck the gun to Jones’ head, smiled, and said “I’m just a hustler.” 17 SR 304.
With the .38 cocked, Graham said that he wanted it all and took Jones’ wallet and watch.
17 SR 305. Graham then hit Jones in the mouth with the gun about five times. 17 SR 307-
08. The gun fired and wounded Jones in the neck. 17 SR. 308. Jones and his friend jumped
from the van and ran to the store. 17 SR 309. Graham and the other male drove away in
Jones’ van. 17 SR. 309.

On May 15, 1981, at approximately 4:40 p.m., Graham approached Yale Salsgiver,
who was in his green Ford van, and asked for directions to North Shepherd then for a ride
to a Jack-in-the-Box on North Shepherd to see a friend. 18 SR 463-66. Salsgiver agreed to
give Graham a ride and Graham entered the van with a small bag. 18 SR 466. After they
arrived at a Jack-in-the-Box on North Shepherd, Graham told Salsgiver that it was the wrong
one. 18 SR 467. Salsgiver continued driving at Graham's direction until he stopped at a
parking lot. 18 SR 467-68. Graham then pulled a sawed-off shotgun, in two pieces, from
his bag. 18 SR 469-70. Salsgiver grabbed the barrel of the shotgun, got out of the van, and
tried to pull Graham from the van. 18 SR 470-71. Graham, who now sat in the driver's seat,
started to drive away in Salsgiver’s van as Salsgiver tried to hit Graham with the barrel of
the shotgun. 18 SR 471. Graham grabbed the barrel of the shotgun from Salsgiver, backed
up the van, and hit Salsgiver with the van knocking him to the ground. 18 SR 471-72.

Graham then drove away in Salsgiver’s van. 18 SR 472.

On May 15, 1981, at approximately 6:30 p.m., Graham stepped out of a green van.

yelled at Emory Dedman, and then walked over to Dedman’s car as Dedman began to drive
out of his parking space at his place of employment. 17 SR 74-76. Dedman stopped his car
and lowered his window. 17 SR 77. Graham asked Dedman for directions to North
Shepherd. 17SR 78. As Dedman again began to drive away, Graham again yelled: Dedman
stopped and Graham asked for a jump for his car battery. 17 SR 78-79. After Dedman drove
his car, a silver Cadillac Seville, license plate number VEW-446, over to the van, he asked
Graham for a screwdriver to open the battery caps. 17 SR 79-80. After Graham walked to
the back of the van and returned, he said “mother fucker, come over here.” 17 SR 80.
Graham then pulled a paper away revealing a shotgun which he pointed at Dedman’s
stomach from a distance of about three or four feet. 17 SR 80-81. Graham forced Dedman
into his van and took his wallet, cash, watch, office keys, and car keys while threatening to
“blow [Dedman] away.” 17 SR 82-87. Graham threw Dedman’s office keys to the back of
the van and told him to stay on the floor of the van for ten minutes, or he would come back
and blow his head off. 17 SR 87-88. Graham then drove away in Dedman’s Cadillac. 17
SR 88.

On May 15, 1981, Richard Carter had parked in the well-lighted parking garage of the
Aquarium Club at about 8:30 or 8.55 p.m when Graham drove up in a silver Cadillac,
license plate number VEW-446. 17 Sk 254-67. Graham backed the Cadillac into a space
so close to Carter’s car that Carter could not get out of the car. 17 SR 267. After Carter told
Graham that he could not get out of his car, Graham moved the Cadillac so that Carter could
get out of his car. 17 SR 268-69. After Carter got out of the car, he and Graham talked for
about ten or fifteen minutes. 17 SR 269-70. As Carter began walking away, Graham called

Carter back to Graham’s car and asked Carter if he knew directions to an address on South

10

Post Oak. 17 SR 271. Carter gave Graham directions while Graham sat in his car smoking
marijuana. 17 SR 271-72. Graham asked Carter if he wanted to smoke. 17 SR272. When
Carter refused, Graham offered to sell Carter a pound of marijuana out of his trunk for fifty
dollars. 17 SR 272.

Carter walked to the trunk of the car and Graham “popped” the trunk so that it would
open. 17 SR 273. Graham then got out of the car carrying a sawed-off shotgun with the
hammer pulled back, telling Carter to “get [his] white ass down behind the car.” 17SR273-
74. Graham told Carter that he was going to “shoot [his] fucking head off.” 17 SR 274.
Graham then forced Carter to give him his wallet and car keys, poking Carter in the head
with the shotgun when he hesitated. 17 SR 276-78. Graham then opened Carter’s car trunk,
removed Carter’s toolbox, and placed it in the trunk of the Cadillac. 17 SR 281-83. When
Graham saw Carter looking at the license plate of the Cadillac, Gre" told Carter to get his
eyes off the license plate or he was going “to shoot [his] fucking brains out.” 17 SR 283.
Graham then told Carter that he had been a “good little white boy” and asked him if he
wanted to keep his car. 17 SR 283. Graham threw Carter's car keys to the parking level
below and walked over to the Cadillac. 17 SR 284-85. Before he left, Graham returned and
removed Carter’s cowboy hat from Carter’s head and put it on his own head. 17 SR 285-86.
After Graham drove away in the Cadillac, Carter turned around and saw that Graham had
stopped halfway down the ramp and placed Carter's hat on a parked car. 17 SR 286. When
Graham saw Carter watching him, Graham said that since Carter was not “a good little white
boy,” he could not have his hat back. 17 SR 286. Graham then took the hat and drove away.
17 SR 286.

Carter entered the club where he sformed police of the incident. 17 SR 287. Carter

stayed in the club until midnight or 1:00 a.m. when he left with a girl and walked her to her

11

car in the parking garage. 17 SR 287-88. As Carter and the girl stood by the car kissing,
Carter saw somebody emerge from the front of the car and someone from the back of the car.
17 SR 288-89. Carter then realized that Graham was approaching them from the back of the
car. 17 SR 289-90. Carter told the girl that Graham had robbed him earlier. 17 SR 290.
The girl ran away screaming, and Carter turned around. 17 SR 291. When Carter tumed
around he saw that Graham was wearing Carter’s cowboy hat and carrying a shotgun in his
pants. 17 SR 291. When Graham saw Carter, Graham’s eyes widened and his mouth
dropped open. 17 SR 291. Graham started to back up, pulling his shotgun from his pants,
and calling Carter a “rotten motherfucker.” 17 SR 291-92. Graham jammed the shotgun in
Carter’s stomach, and Carter told him that he had already taken it all. 17 SR 292. Graham
and the other male ran away as people and police arrived from the club. 17 SR 292.

On May 18, 1981, at approximately 2:30 p.m., Mohsen Nematolli was drinking beer
in the parking lot of the Marriott Hotel with his friends, Linda and Rocky, after getting off
work at the hotel. 18 SR 445-47. Graham approached them and asked Nematolli if he
wanted to buy Graham's belt buckle for fifty dollars. 18 SR 448-49. Nematolli refused, then
got in the car with his frends. 18 SR 450. As he was changing his shirt in the back seat of
the car, Nematolli heard Graham say “you son of a bitch, motherfucker, give me your shit.”
18 SR 450-51. When Nematolli told Graham, who was almost inside the car, to get out of

the car, Graham hit Nematolli in the head with a gun, cocked the gun, and placed it in

Nematolli’s mouth. 18 SR 451-53. Graham asked Nematolli for his watch, ring, and wallet,
then told him to get out of the car. 18 SR 454. Nematolli got out of the car, and saw another
man in the passenger seat of a nearby car pointing a shotgun at Rocky’s car. 18 SR 455.
Graham searched Nematolli for more money, while holding the gun in his ribs, and then told

him to get back in the car. 18 SR 456. Graham then ordered Linda out of the car, touched

12

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Ia rrr a a i aoa eum ur 0-29 c gaan sor marrammmommes organs

her breasts, and took her wedding ring and money. 18 SR 457-59. Graham then told Linda
to get back in the car, and told Rocky to start the car, turn his face away, and back up the car.
18 SR 459-60. Graham and his companion exited the parking lot in the opposite direction.
18 SR 461.

On May 18, 1981, Ermest Doakes was attending a high school graduation party with
a friend Charles Gili. 17 SR 247-48. At about 11:00 p.m., he and Gill went to the Embassy
Apartments on North MacGregor to drop off some items. 17 SR 248. While Doakes waited
in the car for Gill, Graham and another male parked next to Doakes’ car. 17 SR 249-51.
Graham walked to the passenger side of the car, opened the door so that the inside light
illuminated the car, pointed a pistol at Doakes’ ribs, and told him to move over. 17 SR 25 ,
Graham then got in the car with Doakes, while Graham's companion got in the car on the
other side, sandwiching Doakes between the two of them. 17 SR 252-54. As Graham's
companion started the car and began driving away, Graham, continuing to point a gun at
Doakes, took Doakes’ wallet. 17 SR 253-55. When Doakes asked them to just take the car
and let him out, the other male told Doakes to shut up or they would “kill his ass anyway.”
17SR 255. After driving a couple of blocks, they stopped the car and told Doakes to get out.
17 SR 257. Doakes got out of the car, then Graham moved over to the driver's seat and
drove away in the 1979 Mercury Marquis. 17 SR 257.

On May 19, 1981, at approximately 6:15 p.m., Richard Sanford was walking toward
his car in a parking garage when Graham approached him and asked him directions to either
North or South Shepherd. 17 SR 225-29. Sanford gave Graham directions, but as Sanford
was getting in his car, Graham pointed a gun at Sanford’s stomach and told him to “get in
the car, motherfucker.” 17 SR 229-31. Graham got in the driver's side of the car with
| Sanford and threatened to shoot him if he caused trouble. 17 SR 232. Graham demanded

-

13

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Sanford’s wallet and asked Sanford how much money he had in the wallet. 17 SR 232-53.

When Sanford answered forty-nine dollars, Graham threatened to kill Sanford if he had lied.
17 SR 234. Graham took Sanford’s nng and watch, then told Sanford that he had killed six
people already and that he would kill Sanford if he did something stupid. 17 SR 235-37.
Graham rifled through Sanford’s briefcase in the back seat and looked in Sanford’s car trunk.
17 SR 237. Graham got back in the car and started it, cocking the gun and pointing it at
Sanford’s stomach. 17 SR 239. Graham then drove to a stairwell, ordered Sanford into the
stairwell, and followed him into the stairwell where he searched Sanford’s pockets and coat.
17 SR 239-41. Graham pointed the gun at Sanford’s stomach and ordered him back in the
car. 17 SR 241-42. He told Sanford to lie face down in the back seat and wait there for five
minutes, or his “partner” would shoot him. 17 SR 242-43.

On May 29, 1981, at approximately 2:30 or 3:00 a.m., Lisa Blackbur, a fifty-seven
year old cab diniver, was pumping gas at a gas station when Graham approached her and
asked if she needed help. 18 SR 381-83. After Blackburn finished pumping gas, Graham
told her his car had broken down and asked if she would drive him to the Tidwell Exit. 18
SR 383-84. Graham sat in the front seat of the cab and did not move even after Blackburn
asked him to sit in the back seat. 18 SR 348-85. Blackburn drove Graham to Tidwell, where
he then directed her to an apartment building parking lot. 18 SR 385-86. When the cab
stopped, Graham opened the door, put his hand over his sock, pulled out a gun, and pointed
it at Blackburn. 18 SR 386. Graham informed Blackburn that he would take her money,
then ordered her to back her car into a carport. 18 SR 387-89. Graham rummaged through
the glove compartment of the car then ordered Blackbur to “get out.” 18 SR 389. After
directing Blackburn to the trunk of the car, Graham rummaged through the trunk

compartment where he found Blackburn's .38 caliber gun which he then trained on

14

Blackburn after putting his own gun in his belt. 18 SR 389-91.

Graham, who seemed displeased that Blackburn was carrying only fifteen dollars, told
Blackburn that he needed six hundred dollars. 18 SR 392. Graham then told Blackburn that
he thought he was “going to make it” with her. 18 SR 392. When she replied that she was
“too old for that,” Graham struck her in the face and said “don’t lie.” 18 SR 392. Graham
and Blackburn got back in the car, and Graham, while holding a gun on Blackbur, drove to
a vacant apartment. 18 SR 393. Graham entered the apartment by sticking his hand in a
broken window by the door and opening the door. 18 SR 394-95.

Inside the apartment, Graham tured on the lights, and told Blackburn to take off her
clothes and get against the wall. 18 SR 396-97. After Blackburn removed her clothes,
Graham touched her vaginal area “like an examination” and told her to sit down. 18 SR398-
99. He threatened to “fuck her...in the ears and the eyes and everyplace else.” 18 SR 399-
400. Blackburn testified that Graham then did all of the things that he said he was going to
do. 18 SR 400. While Graham lay on top of Blackbur, he held the gun directly over her
head. 18 SR 401-02. Graham forced Blackburn's legs as far over her head as they would
go and had sexual intercourse with her. 18 SR 401-02. When Blackbur screamed, Graham
forced her to turn over and unsuccessfully attempted anal intercourse with her. 18 SR 402.
Blackburn, who feared that Graham would kill her in the vacant apartment where no one
would find her body, then informed Graham that she lived in a warm and comfortable
apartment where she might find more money for him. 18 SR 403. Graham agreed to go to
Blackburn’s apartment but told her that if anyone were at her apartment, he would kill them
both. 18 SR 404.

After Graham and Blackburn arrived at her apartment, Graham searched through

Blackburn’s closets and belongings for money. 18 SR 408. He told her not to move because

15

a

he did not have anything to lose and, though he did not plan on getting caught. knew he

would burn if he did. 18 SR 408. Graham stole jewelry and anything he found of value.
placing it on the landing at the top of the stairs. 18 SR 408-09. After about an hour and a
half, Blackburn noticed a change in Graham's balance and movements. 18 SR 410-12.
Graham told her that they were going to finish what they started and ordered her to undress.
18 SR 412-13. Blackburn asked Graham to undress first; Graham did and got in bed with
the gun. 18SR413. Graham told Blackburn to “suck” him and again ordered her to undress.
18 SR 413. However, as Blackburn began to undress, she realized that Graham was falling
asleep, so she waited for awhile then took the gun, his lates, ent the money he had taken
from her. 18 SR 413-15. She thought about killing Graham. 18 SR 415. After Blackburn
decided not to kill Graham, she left her apartment and locked Graham inside. 18 SR 415.
She asked the apartment management to telephone the police. 18 SR 416. Blackburn waited
outside her door for the police who subsequently arrested the naked Graham after awakening
him in Blackburn’s bed. 18 SR 416-17, 428-29. At the time of his arrest, Graham's billfold
contained an Exxon credit card with the name Richard B. Sanford on it. 18 SR 431-32.‘

Cathy Thornton, an employee at the Texas Youth Council, testified that she knew
Graham and was familiar with Graham's reputation in the community in which he lives and
among those people with whom he resides. 18 SR 442-43. Graham's reputation was bad.
18 SR 443.

Graham then presented the testimony of his stepfather who testified that Graham lived

. All of the witnesses, with the exception of Blackburn who was present at his
arrest, positively identified Graham from lineups after his arrest.

; On January 6, 1982, after the instant trial, Graham entered pleas of guilty to
ten counts of aggravated robbery and was sentenced to twenty-year concurrent prison terms
for offenses committed on May 14, 15, 16, 18, 19, and 20, 1981.

16

with his father, that he visited his mother once or twice a week, that Graham was nice to him.
and that Graham would do what he was asked to do, such as mowing the yard, cleaning, and
helping his mother. 18 SR 475-77. Graham was fifteen when he first met his stepfather.
18 SR 477. Graham was not violent, never fought with his stepfather, and was respectful of
his mother, who was on medication for a nervous condition, and cared for her. 18 SR 478.
Graham had three brothers, and two children ages four and two whom he tried to provide
with money or clothing. 18 SR 478-79.

Graham's grandmother testified that he stayed with her at times. 18 SR 481. Graham
was about three years old when he first stayed with her because his mother had a nervous
condition and mental illness and goes to the hospital “now ever since then.” 18 SR 481-82.
She kept Graham occasionally until he was nine, ten, or eleven. 18 SR 482. Graham would
stay with his mother when she was released from the hospital. but she had been in the
hospital about twenty times. 18 SR 483. Graham's father took Graham to live with him
when Graham was about eleven or twelve, and he had lived with his father ever since. 18
SR 484. Graham would attend church when he lived with his grandmother because he loved
the Lord. 18 SR 485. Graham attended school, never gave her any problems, and was never
violent. 18 SR 485-86. She also had never known Graham to have weapons around him.
18 SR 486.

REASONS FOR DENYING THE WRIT

I. THE QUESTIONS PRESENTED FOR REVIEW ARE
UNWORTHY OF THIS COURT'S ATTENTION.

Rule 10 of the Rules of the Supreme Court provides that review on wnit of certioran
is not a matter of right, but of judicial discretion, and will only be granted for compelling

reasons. Graham fails to advance a compelling reason for this Court to review his case, and

17

none exists.

In March 1993, Graham’s first federal habeas petition, which had been filed in 1988
(“the 1988 petitidfi’), was litigated to finality on the merits. Claims rejected during the
litigation of that petition included claims of ineffective assistance of trial counsel for failure
to investigate alibi witnesses. Grassam’s next two federal habeas petitions were dismissed
without a merits review; one being voluntarily dismissed by Graham shortly after it was
filed, and the other, which had been filed in July 1993 (“the 1993 petition”), being dismissed
for failure to exhaust state remedies in 1996.° Thereafter, Graham took no further action in
state or federal court for more than one and a half years, eventually filing a fourth federal
habeas petition in 1998 (“the 1998 petition”). The 1998 petition chiefly contained claims
of ineffective assistance of tnal counsel. The lower court found that the 1998 petition was
barred by 28 U.S.C. § 2244(b), as amended by the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“the AEDPA”).

Recent decisions of this Court compel one conclusion to Graham's perpetual filing
of federal habeas corpus petitions — it must come to an end. To be sure, Graham conceded
in the lower court that the 1998 petition was successive in relation to the 1988 petition. But,
even if Graham somehow escapes the successive petition bar, his failure to act for more than
one and a half years after his 1993 petition was dismissed, which all occurred after the
enactment of the AEDPA, renders his 1998 petition indefensibly time barred under 28 U.S.C.
§ 2244(d), as amended by the AEDPA. For these reasons, this Court should decline to

exercise its certioran jurisdiction to review Graham's claims. °

. The 1993 petition was essentially an attempt to relitigate previously rejected

claims of ineffective assistance of counsel with additional evidentiary material.

18

ll. THE LOWER COURT CORRECTLY HELD THAT
GRAHAM’S FOURTH FEDERAL PETITION WAS
BARRED BY THE AEDPA.

A. Graham’s fourth habeas petition is not a
continuation of his first habeas petition.

Graham first contends that the lower court’s application of the AEDPA’s successive
petition bar, 28 U.S.C. § 2244(b), conflicts with this Court's opinion in Stewart v. Martinez-
Villareal, 523 U.S. 637, 118 S.Ct. 1618 (1998). In Mariinez-Villareal, the petitioner's first
three federal petitions were dismissed for failure to exhaust state court remedies. The
petitioner's fourth federal petition was litigated to finality on all but a claim of whether the
petitioner was competent to be executed (“the Ford’ claim”). The Ford claim was dismissed
from the litigation as “premature” because an execution date had not been set. Subsequently,
an execution date was set, and petitioner filed a new federal petition (“the fifth petition”)
raising the Ford claim.

The Court held that the fifth petition should not be treated as a “second or successive
application” under 28 U.S.C. § 2244(b) because the petitioner did not “receive an
adjudication of his claim” in his initial proceeding which was litigated to finality on the
merits. Martinez-Villareal, 523 U.S. at _, 118 S.Ct. at 1620. The Court stated that “[t]o
hold otherwise would mean that a dismissal of a first habeas petition for technical procedural
reasons would bar the prisoner from ever obtaining federal habeas review.” /d. The Court
noted, however:

This case does not present the situation where a prisoner raises a Ford claim
for the first time in a petition filed after the federal courts have already
rejected the prisoner’s initial habeas application. Therefore, we have no
occasion to decide whether such a filing would be a “second or successive

. Ford v. Wainwright, 477 U.S. 399 (1986).

19

habeas corpus application” within the meaning of AEDPA.

Martinez-Villareal, 523 U.S. at__ nn. __, 118 S.Ct. at 1622n. _.

Here, Graham utterly fails to appreciate the different procedural posture of his case
than that present in Martinez-Villareal. Most importantly, Graham ignores that his 1988
petition was litigated to finality on the merits, and no claim therein was dismissed as
premature or for failure to exhaust state court remedies or for any other “technical procedural
reason.” Thus, as the lower court correctly found, it is not that Graham's 1998 petition is
a “second or successive application” in relation to the 1993 petition, but that the 1998
petition is a “second or successive application” in relation to the 1988 petition. Graham, 168
F.3d at 773 n.7, 786; see Mancuso v. Herbert, 166 F.3d 97, 101 & n.3 (2nd Cir.) (petitioner's
fifth petition was a “second or successive application” application in relation to petitioner's
third petition, which had been rejected on the ments, not in relation to petitioner’s fourth
petition, which had been dismissed for failure to exhaust state court remedies), cert. denied,
__ US. _, 119 S.Ct. 2376 (1999).

Further, Graham's contention that the Court did not apply the AEDPA to the fifth
petition in Martinez-Villareal because it was merely a continuation of the fourth petition is
simply wrong. In Martinez-Villareal, the Court applied the AEDPA to the fifth petition but
held that the fifth petition was not second or successive in relation to the sole pnor petition
which had been litigated to (partial) finality on the merits, the fourth petition. Obviously,
if the fifth petition was merely a continuation of the fourth petition and, therefore, the
AEDPA did not apply at all, the Court would not have considered, in any manner, whether
the fifth petition was a successive petition under the AEDPA. Again, the lower court here
did not find that Graham's 1998 petition was second or successive in relation to his petition

which had not been litigated to finality on the merits, the 1993 petition, but to his petition

20

which had been litigated to finality on the merits, the 1988 petition.

Finally, Graham conceded in the lower court that all claims, and the related
evidentiary support, he sought to litigate in the 1993 and 1998 petitions could have been
raised in the 1988 petition, and that his 1998 petition was second or successive in relation
to his 1988 petition. See Graham, 168 F.3d at 773-74, 789-90.* In sum, that Graham elected
to perpetually evolve his claims of ineffective assistance of trial counsel after they had been
rejected during the litigation of his 1988 petition does not permit him to come under the
ambit of Martinez-Villareal by any measure, much less to litigate whatever issues he desires
ad infinitum.’

B. Applying the successive petition bar of the
AEDPA to Graham’s fourth habeas petition
does not offend retroactivity principles.

Graham next argues that applying the AEDPA to his successive 1998 petition violates
retroactivity principles of Landgraf v. USI Film Products, 511 U.S. 244 (1994). Under
Landgraf.

, Graham has consistently acknowledged, to the lower court and to this Court,

that he cannot satisfy the AEDPA’s “cause” requirement for a successive petition, 28 U.S.C.
§ 2244(b)(2)(B)(1). However, the lower court misquoted one sentence of Graham's Motion
for Order Authorizing District Court to Consider Successive Habeas Petition on page 14.
See Graham, 168 F.3d at 789. The sentence at issue should read: “..... This report was
obtained through a state open records act request that could as readily have been made in
connection with the first habeas proceeding in / 988 as 11 was in connection with [sic ] second
habeas proceeding in 1993... .” (emphasis in corrected portion of quote). Thus, although
Graham’s present habeas counsel may not have gained access to this report until 1993, see
Petition for Writ of Certiorari at 11, Graham conceded that he could have gained access to
the evidence in 1988.

, It should be noted that, unlike claims readily discoverable and npe for a

determination at the time of an initial petition, the peculiar nature of a Ford claim, arising
solely with a pending execution date, factored into the Court’s decision in Martinez-
Villareal. See Martinez-Villareal, 523 U.S. at __, 118 S.Ct. at 1622.

21

When a case implicates a federal statute enacted after the events in suit. the
court’s first task is to determine whether Congress has expressly prescribed the
statute’s proper reach. If Congress has done so, of course, there is no need to
resort to judicial default rules. When, however, the statute contains no such
express command, the court must determine whether the new statute would
have retroactive effect, i.e., whether it would impair nights a party possessed
when he acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statute would
operate retroactively, our traditional presumption teaches that it does not
govern absent clear congressional intent favoring such a result.

Landgraf, 511 U.S. at 280.

This Court recently held that “the statute [the AEDPA] reveals Congress's intent to
apply the amendments to chapter 153 [which include 28 U.S.C. § 2244] only to such cases
as were filed after the statute’s enactment.” Lindh v. Murphy, 521 U.S. 320, 326 (1997).
There can be doubt here that Graham’s 1998 petition was filed after the AEDPA’s
enactment, and, therefore, the AEDPA applies, including the successive petition bar of 28
U.S.C. § 2244(b). See Felker v. Turpin, 518 U.S. 651 (1996) (applying successive petition
bar of 28 U.S.C. § 2244(b) to petition filed after enactment of the AEDPA where pre-
AEDPA petition had been previously rejected).'°

Further, if this Court’s pnor announcement and application of Congress’s intent
regarding the AEDPA (Lindh and Felker, respectively) is somehow unclear, the lower court
reasonably found that applying the AEDPA in this case was not impermissibly retroactive.
See Graham, 168 F.3d at 783-87. By its very nature, a federal habeas corpus proceeding
concerns secondary, rather than pnmary conduct, and acts prospectively. When coupled
with the procedural nature of the successive petition statute at issue, it is clear that Graham

possessed no constitutionally recognizable interest in the pre-AEDPA standard for successive

10

This Court applied the AEDPA in Felker, notwithstanding the petitioner’s
allegation of innocence. Felker, 518 U.S. at 658.

22

petitions. See Landgraf, 511 U.S. at 275 (“Changes in procedural rules may often be applied
in suits arising before their enactment without raising concerns about retroactivity. .. .
Because rules of procedure regulate secondary rather than pnmary conduct. the fact that a
new procedural rule was instituted after the conduct giving rise to the suit does not make
application of the rule at trial retroactive.”). Indeed, it is singularly absurd that state
prisoners possess some type of inherent nght to besiege the federal courts with successive
habeas petitions under any particular standard. For example. in McC leskey v. Zant, 499 U.S.
467 (1991), consistent with its later decision in Fe/ker, this Court announced new standards
for the pre-AEDPA abuse of the wnt doctnne and applied that to the petition before the
Court. This claim is not worthy of certioran review.

4 If Graham’s fourth petition is not barred as a
successive petition, it is time barred.

Even assuming Graham could escape the AEDPA’s successive bar, 28 U.S.C. § 2244
(b), one thing is certain — he cannot escape the AEDPA’s time limitation bar, 28 U.S.C. §
2244(d). The statute provides:

(d) (1) A I-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;

(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed. if the applicant was prevented
from filing by such State action;

(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the nght has been

newly recognized by the Supreme Court and made retroactively

23

applicable to cases on collateral review: or

(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.

(2) The time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under
this subsection.

28 U.S.C. § 2244. However, in cases where a petitioner's conviction became final before
enactment of the AEDPA, like here, the circuit courts are in general agreement that those
petitioners are entitled to a one-year “grace” period from the statute’s effective date to file
a federal habeas petition or otherwise toll the limitations period. See, e.g., Gaskins v. Duval,
__ F.3d _,__, 1999 WL 447129, *1-2 (Ist Cir. 1999); Rosa v. Senkowski, 148 F.3d 134,
135-36 (2nd Cir. 1998); Lovasz v. Vaughn, 134 F.3d 146, 149 (3rd Cir. 1998); Brown v.
Angelone, 150 F.3d 370, 375-76 (4th Cir. 1998); Kiser v. Johnson, 163 F.3d 326, 327-28
(Sth Cir. 1999); Brown v. O'Dea, ___ F.3d __, _, 1999 WL 587209, *3-4(6th Cir. 1999);
Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev'd on other grounds, Lindh v.
Murphy, 521 U.S. 320, 326 (1997); Nichols v. Bowersox, 172 F.3d 1068, 1073 (8th Cir.
1999); Dictado v. Ducharme, __F.3d__, _, 1999 WL 646953, *1-3 (9th Cir. 1999); Haney
v. Addison, 175 F.3d 1217, 1220-21 (10th Cir. 1999); Wilcox v. Florida Dept. of
Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998).

Applying these principles, Graham had one year from October 1996, at the most

generous,'' to pursue his claims in state or federal court under 28 U.S.C. § 2244(d), as

s For purposes of Graham’s petition, the Director will assume arguendo that the

limitations period was tolled during the pendency of Graham's 1993 petition. It should also
be noted that Graham's counsel of record before the Court was lead counsel during the

24

amended by the AEDPA. Yet, Graham, an allegedly innocent prisoner,’* sat idle for more
than one and a half years after the 1993 petition was finally dismissed by the district court
in October 1996. Graham's failure to act in state or federal court within one year of October
1996 rendered the 1998 petition indefensibly time barred.

Finally, applying the time limitation bar of 28 U.S.C. § 2244(d) to Graham's 1998
petition does not implicate retroactivity concerns in any manner. Asnoted above. all conduct
rendering the 1998 petition time barred arose solely after the statute’s enactment. For these
reasons. even if the Court were to agree with Graham that the successive petition bar of the
AEDPA does not apply to him, this case is not worthy of certiorari review by the Court. See
Martinez-Villareal, 523 U.S. at _, 118 S.Ct. at 1622 (noting that petitioner's fifth pention

was brought in a “timely fashion”).

pendency of Graham's appeal of the 1993 petition in the lower court.

- For the reasons set out at length in the Director's brief to the lower court, the
Director disputes Graham’s assertions of innocence and that the 1998 petition would have
been considered under pre-AEDPA standards. Pointedly, when Graham finally returned to
the state courts in 1998 to present his “new evidence,” the Court of Criminal Appeals
determined that he failed to satisfy the threshold showing of innocence required to file a
successive state habeas application under TEX. CODE CRIM. PROC. art 11.071 § 5(a)(2) (“by
a preponderance of the evidence, but for a violation of the United States Constitution no
rational juror could have found the applicant guilty beyond a reasonable doubt.”). See Ex
parte Graham, No. 17,568-05, November 18, 1998, Order & J udge Baird concurring opinion
(Appendix 6 to Graham’s petition for wnt of certioram). The implied and express factual
findings which flow from the Court of Criminal Appeals’ order are presumptively correct.
See Marshall v. Lonberger, 459 U.S. 422, 433-35, (1983) (implied and express factual
findings and credibility choices made by the state court judges may not be redetermined by
a reviewing federal court). Similarly, the federal district court has rejected Graham's claim
of innocence. See Graham, 829 F.Supp. at 207 (“The Court determines that Graham has not
met the ‘extraordinarily high’ threshold showing of actual innocence.”).

25

Il. THE LOWER COURT PROPERLY REFUSED TO
RECALL ITS PRIOR MANDATE.

A. Graham’s motion to recali the prior mandate
was subject to the AEDPA.

In addition to finding the 1998 petition barred by 28 U.S.C. § 2244(b), as amended
by the AEDPA, the lower court denied Graham’s motion to recall the mandate of the 1993
petition. According to Graham, the lower court should have applied a miscarnage of justice
standard to his motion, rather than the successive petition bar of the AEDPA.

The Court recently identified the two forms of recalling a prior mandate in a § 2254
case: (1) an appellate court sua sponte recalling its prior mandate; and (2) a petitioner
moving the court to recall its por mandate. Calderon v. Thompson, _U.S. __, _, 118
S.Ct. 1489, 1500 (1998). In the case of a sua sponte recall of a prior mandate, the appellate
court must only act to avoid a miscarnage of justice. Thompson, _U.S. at __, 118S.Ct. at
1502. However, the successive petition bar of the AEDPA, 28 U.S.C. § 2244(b), may
nevertheless apply to the reopened cause. Thompson, _ U.S. at __, 118 S.Ct. at 1500.

In contrast, the successive petition bar of the AEDPA, 28 U.S.C. § 2244(b), applies
when a petitioner moves the court to recall its prior mandate:

In a § 2254 case. a prisoner’s motion to recall the mandate on the basis of the
merits of the underlying decision can be regarded as a second or successive
application for purposes of § 2244(b). Otherwise, petitioners could evade the
bar against relitigation of claims presented in a prior application. §
2244(b)(1), or the bar against litigation of claims not presented in a prior
application, § 2244(b)(2). If the court grants such a motion, its action is
subject to AEDPA irrespective of whether the motion is based on old claims
(in which case § 2244(b)(1) would apply) or new ones (in which case §
2244(b)(2) would apply).

Id.

Here, it is beyond cavil that the lower court correctly characterized Graham's motion

26

to recall the mandate as a second or successive petition, and, based on Graham's admission,
correctly concluded that the matter was barred pursuant to the AEDPA. Graham, 168 F.3d
at 788-90. Graham’s claim that the lower court’s decision automatically renders anv motion
to recall a prior mandate filed by a petitioner to be rejected simply because the motion was
made is absurd. Consistent with Thompson, the lower court said no more than that such a
motion would have to satisfy the AEDPA standards. Moreover, as noted supra, even if
Graham can avoid the AEDPA successive petition standards, he entirely fails to circumvent
the AEDPA time limitation standards by his failure to act for more than one and a half years
after his 1993 petition was dismissed. This claim is not worthy of certioran review.

B. The denial of Graham’s motion to recall the
prior mandate did not deprive Graham of due
process.

Graham next contends that the lower court’s refusal to recall its pnior mandate
deprived him of due process because the delays in his case are entirely attributable to the
courts, not him. However, for whatever reasons he now seeks to excuse his actions, it must
be remembered that Graham has consistently acknowledged that all present claims, and the
attendant evidentiary support, were available to Graham more than eleven years ago when
he filed his first federal petition, the 1988 petition. It must also be remembered that, even
after Graham’s first petition was denied on the merits, he filed his 1993 petition in federal
court with knowledge that al! claims and evidence had not previously been presented to the
state courts rendering the petition subject to dismissal for failure to exhaust state remedies.
Finally, and most significantly, it must be remembered that even after the 1993 unexhausted
petition was dismissed in 1996, Graham waited more than one and a half years to raise his
claims, which were available in 1988, to the state or federal courts. In sum, Graham's

attempt to now lay blame on the courts for any delay is utterly disingenuous.

27

Finally, although the claim has been rejected by the state and federal courts, see
footnote 12, Graham has an available avenue to pursue his claim of alleged innocence
through the state clemency process. For example, the petitioner in Lucas v. Johnson, 132
F.3d 1069 (Sth Cir.), cert. dismissed, _U.S. __ (1998), obtained executive clemency on
claims of actual innocence through the same avenue available to Graham.

CONCLUSION

For the foregoing reasons, the Director respectfully requests this Court to deny

Graham's petition for writ of certiorari.

Respectfully submitted,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SHANE PHELPS
Deputy Attorney General
for Criminal Justice

GENA BUNN
Assistant Attorney General
Chief, Capital Litigation Division

pages SER 7
BP xe L. SKAG gf
ssistant Attorney General

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1429

(512) 320-8132 (Fax)

ATTORNEYS FOR RESPONDENT
*Counsel of Record

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0487%3A2. Public record. Not legal advice.