Coulson v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 8, 2001
• Docket: 01-20083
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-20083 _____________________

ROBERT O COULSON

Petitioner - Appellant

v.

GARY L JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division

Respondent - Appellee _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (4:99-CV-2523) _________________________________________________________________ August 7, 2001

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Robert O. Coulson was convicted of

capital murder in Texas state court and sentenced to death.

Petitioner-Appellant appeals the district court’s denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. § 2254. Upon denial of Petitioner-Appellant’s petition, the

district court granted a certificate of appealability on three of

his five claims. Petitioner-Appellant has also filed with this

court an application for a certificate of appealability on one

additional claim. For the following reasons, we AFFIRM the

judgment of the district court denying habeas relief on the first

three claims and DENY Petitioner-Appellant’s application for a

certificate of appealability.

I. FACTUAL HISTORY

At approximately 6:15 p.m. on Friday, November 13, 1992,

firefighters were called to the scene of a residential fire at

9782 Westview in Houston, Texas. When they arrived, the

firefighters discovered the burned bodies of Otis Coulson

(“Otis”), his wife Mary Coulson (“Mary”), their adopted daughters

Sarah Coulson (“Sarah”) and Robin Wentworth (“Robin”), and

Robin’s husband Richard Wentworth (“Richard”). Each body had

been bound with zip cords or duct tape, and a plastic trash

compactor bag had been pulled over each victim’s head and secured

with duct tape. It was later learned that all five victims died

from asphyxia due to suffocation. After the victims had died,

gasoline had been poured over their bodies, and they had been lit

on fire.

The day after the murders, Petitioner-Appellant Robert O.

Coulson, Otis and Mary’s adopted son and the only remaining

2 member of the immediate Coulson family, and his roommate Jared

Althaus were located by Althaus’s brother at Althaus’s

grandfather’s farm, which was situated a few hours outside

Houston. At police request, Coulson and Althaus returned to

Houston and went immediately to the police station for

questioning. Coulson and Althaus informed the police that they

had left Houston for the farm at approximately 4:00 p.m. on the

day of the murders. In support of their story, Coulson and

Althaus produced a gasoline receipt, which was stamped at

approximately 4:27 p.m., to demonstrate that they had not been

near the Coulson home at the time of the murders.

Two days after this first police interview, on Monday,

November 16, Althaus spoke again with police officers and

recanted his earlier statement. During this Monday interview

with police, Althaus informed the police that he had dropped

Coulson off at the Coulson home on Friday afternoon and then

picked him up a few hours later. Althaus claimed that he did not

know about the murders until the next day.

Finally, on Tuesday, November 17, Althaus gave another

account of his actions on the evening of the murders. During

this account, Althaus confessed to having a role in the murders.

Althaus informed the police that he had helped Coulson plan and

carry out the murders. He confessed that, during a three-month

time period prior to the murders, he had assisted Coulson in

collecting the items used to murder Coulson’s family and that, at

3 approximately 4:00 p.m. on the day of the murders, he drove

Coulson to a drop-off point near the Coulson home. Althaus

admitted at trial that he next drove outside Houston to obtain

the gas receipt for their planned alibi and then returned to the

prearranged place at 6:00 p.m. to pick up Coulson once the house

had been set on fire. Althaus stated that he and Coulson then

drove through the back streets of Houston, discarding Coulson’s

clothing and the tools used to murder the Coulson family.

Althaus recounted that he and Coulson then drove to his

grandfather’s farm to create their alibi. After confessing to

his role in the murders, Althaus accompanied the police in an

attempt to retrace the route taken by Coulson and Althaus when

they were discarding the evidence. The police were able to

retrieve several of the discarded items.1

During the time that Althaus was confessing to his role in

the murders to the police, Coulson was attending gatherings of

family and friends, as well as the funeral for the family that

was held on Tuesday, November 17. Then, pursuant to police

instruction, Althaus contacted Coulson on the evening of the

1 Althaus testified that they disposed of, inter alia, a crowbar; a gas can; a stun gun; a backpack; a .9 millimeter gun that had been broken into its individual pieces; and Coulson’s tennis shoes, jeans, sweatshirt, baseball cap, and sunglasses. The record reveals that, with Althaus’s help, the police were able to recover the crowbar; the gas can; the sweatshirt; the baseball cap; the backpack; a ski mask; and .9 millimeter bullets, a magazine, and a slide mechanism from a .9 millimeter gun.

4 family’s funeral and asked Coulson to meet him at a local hotel.

Coulson met Althaus at the hotel, and the police recorded the

ensuing discussion using an electronic transmitter that had been

placed in the room. During the course of the recorded

conversation, Coulson made several incriminating statements2 and

repeatedly pressured Althaus to adhere to their previously

established alibi. The conversation ended, and Coulson was

arrested immediately upon exiting the hotel room.

Coulson was given his Miranda3 warnings and was placed in a

police van to be transported to the police station. En route to

the police station, Coulson was questioned by the arresting

officers and answered several of their questions. Coulson made

more incriminating statements to the police officers during this

exchange.

2 It should be noted that, during the conversation in the hotel room, Coulson never admitted to killing his family. 3 Miranda v. Arizona, 384 U.S. 436 (1966).

5 Coulson was indicted for the murders of Robin4 and Richard.5

The following is the district court’s thorough and accurate

description of the evidence presented at trial6:

At [Coulson]’s trial, the State presented evidence that [Coulson] had planned for several months the murder of his immediate family members at the family home. In all, the guilt-innocence portion of the trial lasted nearly three weeks. During the course of the trial, the State presented a total of twenty-five witnesses and eighty-three exhibits. [Coulson] offered twenty witnesses and twenty-nine exhibits. During this lengthy trial, the State presented evidence that suggested [Coulson] murdered his entire family in order to inherit each of his parents’ estate as the sole heir. The State, however, did not present direct physical evidence linking [Coulson] to the crime. The State presented extensive testimony relating to a confession by [Coulson]’s roommate and co-conspirator Althaus. Althaus testified that he aided [Coulson] in the planning of the murders, drove him to the Coulson residence the evening of the murder, and picked him up after [Coulson] had set the house on fire. Althaus testified that [Coulson] vividly described to him the murders after Althaus picked him up. Althaus also testified that he had created an alibi with [Coulson]. The State also presented testimony that [Coulson] had made comments to friends that indicated he had killed his family. The State also presented the testimony of the arresting officers who testified that, after his arrest, [Coulson] both made comments suggesting he committed the homicides, and that he never actually denied the crimes. Additionally, the

4 As noted supra in the text, Robin was the adopted child of Otis and Mary Coulson. In fact, Robin was the natural sister of Coulson, who was also adopted by Otis and Mary. 5 Coulson was indicted originally for the murders of Otis, Mary, Sarah, Robin, and Richard. The indictment was subsequently amended to include only the murders of Robin and Richard. 6 To be clear, at all times in this opinion, the term “trial” refers to the guilt/innocence phase, as opposed to the punishment phase, of Coulson’s trial.

6 State adduced evidence that [Coulson] had previously spoken of killing his family, was inordinately interested in the size of his parents’ estate, did not grieve over the loss of his family, and had financial problems. The State adduced other circumstantial evidence linking [Coulson] to the murders: the murders were accomplished by someone intimately familiar with the Coulson[s’] house and family habits; the Coulson family traditionally met together on Friday nights; and his family may have been anticipating his presence that Friday evening to discuss a business opportunity.

To demonstrate the last piece of circumstantial evidence

linking Coulson to the crime, i.e., that the Coulson family

appeared to have been anticipating Coulson’s arrival to discuss a

business opportunity, the State introduced Althaus’s testimony

that Coulson had called his family members and told them all to

be at the Coulson home on Friday, November 13. Moreover, and

especially relevant to one of Coulson’s claims on appeal, the

State introduced an envelope that was found on the desk in Otis’s

office. The back of the envelope was dated August 16, 1992, and

contained notations that detailed terms of a proposed business

loan to Coulson. Through the use of photographs offered by the

State, the State represented that the envelope was found at the

center of Otis’s desktop on the night of the murders. The State

argued at trial that the envelope, which according to the

photographs was prominently displayed on Otis’s desk, supported

its theory that the Coulson family was expecting Coulson that

night.

7 For his part, Coulson testified at trial that he never made

any incriminating statements to the police or to his friends. In

addition, Coulson attempted to implicate Althaus as the murderer,

apparently because Althaus allegedly feared that Coulson’s family

believed that Althaus was homosexual and had romantic feelings

for Coulson. In contrast to Althaus’s testimony, Coulson claimed

that, instead of dropping him off near the Coulson home, Althaus

actually dropped Coulson off at the Town and Country Mall in

Houston, where Coulson was to meet his entire family for dinner

at Luby’s Cafeteria. Coulson testified that Althaus left him at

the mall shortly after 4:00 p.m. and that Coulson’s dinner plans

with his family were at approximately 5:15 or 5:30 p.m. Coulson

explained that he went to the mall early because Althaus told him

he was meeting a friend, but that Althaus would not reveal the

name of his friend. Coulson testified that, once he was dropped

off, he walked around the perimeter of the mall to a movie

theater and then went to Luby’s to wait for his family’s arrival.

When his family did not appear by 5:45 p.m., Coulson called the

Coulson home and received no answer. At around 6:15 p.m.,

Althaus returned to pick Coulson up, and the two left for the

farm. Coulson testified that when Althaus picked him up, Althaus

was sweating, “upset,” and “anxious.” In addition, Coulson

stated that Althaus was driving and stopped the car often,

claiming that he had to vomit. When questioned by Coulson

8 regarding his demeanor, Althaus stated that he had had a fight

with his friend.

Based upon the evidence presented at trial, on June 16,

1994, the jury found Coulson guilty of capital murder. Following

the punishment phase of the trial, the jury answered “yes” to the

first two special issues submitted pursuant to Article 37.071(b)

of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 37.071(b) (Vernon Supp. 2001).7 To the third special

issue, the jury responded “no.” See id. art. 37.071(e)(1).8

7 The first two special issues contained in Article 37.071(b) provide:

(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

TEX. CODE CRIM. PROC. ANN. art. 37.071(b). 8 The third special issue provides:

The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a

9 Accordingly, on June 22, 1994, the state trial court sentenced

Coulson to death. See id. art. 37.071(g).9

II. PROCEDURAL HISTORY

In the automatic direct appeal following Coulson’s

conviction, the Texas Court of Criminal Appeals (“CCA”) affirmed

his conviction in an unpublished opinion. See Coulson v. State,

No. 71,948 (Tex. Crim. App. Oct. 16, 1996). Coulson then filed a

state application for habeas relief on September 2, 1997. On

October 9, 1998, the convicting court set an evidentiary hearing,

which was conducted on November 3, 1998. On January 5, 1999, the

convicting court filed its recommended findings of fact and

conclusions of law and ordered that these findings and

conclusions be transmitted along with the record of the

proceedings to the CCA. The CCA denied habeas relief on June 9,

1999, stating in an unpublished order that the trial court’s

recommended findings of fact and conclusions of law were

supported by the record. See Ex Parte Coulson, No. 40,437-01

sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

TEX. CODE CRIM. PROC. ANN. art. 37.071(e)(1). 9 Article 37.071(g) states that “[i]f the jury returns an affirmative finding on each issue submitted under Subsection (b) of this article and a negative finding on an issue submitted under Subsection (e) of this article, the court shall sentence the defendant to death.” TEX. CODE CRIM. PROC. ANN. art. 37.071(g).

10 (Tex. Crim. App. June 9, 1999). At this time, no execution date

has been set for Coulson.

Coulson filed his federal petition for a writ of habeas

corpus on August 9, 1999.10 In his federal petition, Coulson

raised the following five claims: (1) that his conviction

violated the Due Process Clause of the Fourteenth Amendment

because the State knowingly presented false evidence against him

(i.e., photographic evidence and testimony regarding the location

of the envelope) to secure his conviction (“false-evidence

claim”); (2) that his conviction violated the Due Process Clause

of the Fourteenth Amendment because, having presented false

evidence against him in order to secure his conviction, the State

failed to disclose information within its possession to

demonstrate that the evidence was false, in violation of Brady v.

Maryland, 373 U.S. 83 (1963) (“Brady claim”); (3) that his

conviction violated the Sixth Amendment’s guarantee of effective

assistance of counsel because his trial counsel failed to object

to the State’s use of Coulson’s post-arrest, post-Miranda

silence, which was protected under Doyle v. Ohio, 426 U.S. 610

(1976) (“Doyle claim”); (4) that his conviction violated the

Sixth Amendment’s guarantee of effective assistance of counsel

because his trial counsel failed to request a limiting

instruction on the arresting officers’ testimony regarding

10 Coulson’s state habeas counsel was also appointed to represent him during the federal habeas proceedings.

11 Coulson’s statements in the police van after his arrest

(“limiting-instruction claim”); and (5) that his conviction

violated the Sixth Amendment’s guarantee of effective assistance

of counsel because his trial counsel failed to discover the

allegedly false evidence (“failure-to-discover claim”).

Respondent-Appellee Gary L. Johnson filed an answer and moved for

summary judgment. On August 31, 2000, the district court granted

Johnson’s motion. At the same time, the district court granted

on its own motion a certificate of appealability (“COA”) on

Coulson’s false-evidence claim. See 28 U.S.C. § 2253(c)(1)

(Supp. 2001).

Coulson then moved for reconsideration of the judgment and

to alter or amend the judgment. On December 12, 2000, the

district court granted Coulson’s motion for reconsideration of

the judgment, but once again granted Johnson’s motion for summary

judgment. However, the district court did grant in part

Coulson’s motion to alter or amend the judgment and granted

Coulson a COA on his Brady and Doyle claims, but refused to grant

a COA on his limiting-instruction and failure-to-discover claims.

Coulson timely appealed. Coulson has also applied to this

court for a COA on his limiting-instruction claim.

As noted, the district court granted a COA for Coulson to

appeal his false-evidence, Brady, and Doyle claims. Although

Coulson’s counsel briefed only the false-evidence claim, in an

abundance of caution, we elect to address all three claims on

12 which the district court granted a COA. We will first evaluate

Coulson’s false-evidence and Brady claims and then turn to his

Doyle claim and application for a COA on his limiting-instruction

claim, analyzing the latter two claims under the familiar test

set out in Strickland v. Washington, 466 U.S. 668 (1984).

III. STANDARD OF REVIEW

This court reviews the district court’s grant of summary

judgment de novo. See Williams v. Scott, 35 F.3d 159, 161 (5th

Cir. 1994). We consider all of the facts contained in the

summary judgment record and the inferences to be drawn therefrom

in the light most favorable to the nonmoving party. See id.

Because Coulson filed his petition for federal habeas corpus

after April 24, 1997, his appeal is also governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 100 Stat. 1214 (1996). See Penry v.

Johnson, 121 S. Ct. 1910, 1918 (2001); Martin v. Cain, 246 F.3d

471, 475 (5th Cir. 2001). As such, in our review of Coulson’s

claims, we are constrained by the dictates of 28 U.S.C. § 2254(d)

Under § 2254(d) of AEDPA, habeas relief is not available to

a state prisoner

with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

13 established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1) & (2); see also Gardner v. Johnson, 247

F.3d 551, 557 (5th Cir. 2001); Martin, 246 F.3d at 475. Under

this standard of review, then, “pure questions of law and mixed

questions of law and fact are reviewed under § 2254(d)(1), and

questions of fact are reviewed under § 2254(d)(2).” Corwin v.

Johnson, 150 F.3d 467, 471 (5th Cir. 1998); see also Martin, 246

F.3d at 475-76.

For questions of law, “[a] state court decision will be

‘contrary to’ [the Supreme Court’s] clearly established precedent

if the state court either ‘applies a rule that contradicts the

governing law set forth in [the Supreme Court’s] cases,’ or

‘confronts a set of facts that are materially indistinguishable

from a decision of this Court and nevertheless arrives at a

different result from [Supreme Court] precedent.’” Penry, 121 S.

Ct. at 1918 (quoting (Terry) Williams v. Taylor, 529 U.S. 362,

405-06 (2000)); see also Murphy v. Johnson, 205 F.3d 809, 813

(5th Cir.) (“We review pure questions of law under the ‘contrary

to’ standard of sub-section (d)(1)[.]”), cert. denied, 121 S. Ct.

380 (2000).

For mixed questions of law and fact, “[a] state court

decision will be an ‘unreasonable application of’ [the Supreme

Court’s] clearly established precedent if it ‘correctly

14 identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner’s case.’” Penry, 121 S.

Ct. at 1918 (quoting (Terry) Williams, 529 U.S. at 407-08); see

also Murphy, 205 F.3d at 813. In distinguishing an “unreasonable

application” from an “incorrect” one, the Supreme Court has

clarified that “even if the federal habeas court concludes that

the state court decision applied clearly established federal law

incorrectly, relief is appropriate only if that application is

also objectively unreasonable.” Penry, 121 S. Ct. at 1918; see

also (Terry) Williams v. Taylor, 529 U.S. 362, 410-11 (2000).

IV. FALSE-EVIDENCE CLAIM

A. The Envelope

As mentioned supra in Part I, in an attempt to demonstrate

that the Coulson family was expecting Coulson on the night of the

murders and thus placing Coulson at the scene of the crime, the

State introduced photographs of Otis’s desk with an envelope

being prominently displayed in the center of the desktop. On the

back of the envelope were the particulars of a proposed business

loan from Otis to Coulson. The State argued at trial that the

envelope’s presence on the desk demonstrated that Otis was

expecting his son that evening in order to discuss a new business

venture.11

11 Testimony at trial revealed that the proposed loan actually related to a prior business venture in which Coulson was interested. Testimony established that this prior venture had fallen through before the murders.

15 At trial, the State introduced State’s Exhibits 14, 15, and

16, which were photographs of Otis’s desk allegedly taken

immediately after the fire. The exhibits were introduced through

Detective Beth Halling, a crime scene investigator for the

Houston Police Department Homicide Division, who testified under

oath that the photographs accurately depicted the crime scene on

the night of the murders. Exhibits 15 and 16 are close-up

photographs of the desk in the office showing the envelope

prominently displayed on the desktop. Exhibit 14, in contrast,

is a photograph showing the desk without the envelope on it.

When asked about the envelope in Exhibits 15 and 16, Detective

Halling testified that she had no personal knowledge of the

envelope on the desk because, at the time she took the pictures

on the evening of the murders, it was very dark and she did not

personally examine the items on the desk.

At the state habeas evidentiary hearing, however, testimony

revealed that, instead of being isolated and centered on the desk

on the evening of the murders, the envelope actually had been

discovered the next day by Houston police officer Dale Atchetee

in a stack of papers located on the side of the desktop. Officer

Atchetee testified that he found the envelope in the stack of

papers under a turtle paperweight, thought it to be relevant, and

placed it in the center of the desktop to be photographed.

Further, Detective Halling testified at the state

evidentiary hearing that while she did take the photograph in

16 Exhibit 14, she did not take the photographs in Exhibits 15 and

16. She conceded therefore that her testimony at the trial had

been “mistaken.” It was therefore established at the state

evidentiary hearing that Exhibits 15 and 16 were actually taken

by another crime scene detective L.R. Verbitskey the day after

the murders and were submitted with Detective Halling’s

photographs for processing.

Coulson argued to the district court that by advancing

evidence regarding the position of the envelope on the desk, the

State presented false evidence against him, and therefore, his

resulting conviction was based upon a denial of due process

guaranteed to him by the Fourteenth Amendment. Coulson asserted

that the envelope was critical at trial because it was “the only

circumstantial evidence at the scene of the crime suggesting

[Coulson] had been present at the time of the killing” and that

its true location rendered it “actually worthless.”12

12 Coulson argues on appeal that the district court erred in deciding this issue without first affording him discovery and an evidentiary hearing. He argued for the first time to the district court that not only was the envelope not in the center of the desktop when it was first discovered, it was not on the desktop at all. He claims that Officer Atchetee gave implausible testimony at the state evidentiary hearing when he testified that he discovered the envelope in a stack of papers located at the side of the desktop. The district court declined to grant the evidentiary hearing because, inter alia, Coulson “did not bring to the attention of the state habeas courts his contention that the envelope was not found on Otis Coulson’s desk.” The district court concluded that the claim was procedurally barred because “[t]o the extent that this contention could be said to actually be relevant to the false evidence legal claim . . . the argument that the envelope

17 B. The District Court Properly Concluded that Evidence Regarding

the Location of the Envelope Was Not Material

“It is well settled that the State is not permitted to

present false evidence or allow the presentation of false

evidence to go uncorrected.” Moody v. Johnson, 139 F.3d 477, 484

(5th Cir. 1998); see also Giglio v. United States, 405 U.S. 150,

153 (1972) (“As long ago as Mooney v. Holohan, 294 U.S. 103, 112

(1935), this Court made clear that deliberate deception of a

court and jurors by the presentation of known false evidence is

incompatible with ‘rudimentary demands of justice.’ . . . ‘The

same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.’”

(parallel citations and alteration omitted) (quoting Napue v.

Illinois, 360 U.S. 264, 269 (1959))). A conviction that results

from such a denial of due process cannot be permitted to stand.

was somewhere other than under the turtle paperweight on the desk constitutes an unexhausted contention.” Moreover, the district court found that Coulson failed to demonstrate cause and prejudice such to overcome the procedural bar. We conclude that the district court did not abuse its discretion in declining to grant an evidentiary hearing on this issue. See Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998) (stating that the petitioner “must still show that the district court abused its discretion in denying the hearing”); see also Barrientes v. Johnson, 221 F.3d 741, 761 (5th Cir. 2000) (quoting in agreement a prior unpublished opinion in that case for the proposition that “‘a habeas petitioner fails to exhaust state remedies when he presents additional factual allegations and evidentiary support to the federal court that was not presented to the state court’”), cert. dism’d by 121 S. Ct. 902 (2001); Joyner v. King, 786 F.2d 1317, 1320 (5th Cir. 1986).

18 See United States v. Anderson, 574 F.2d 1347, 1355 (5th Cir.

1978).

To demonstrate a due process violation based upon the

State’s knowing use of false or misleading evidence, Coulson must

show that (1) the evidence was false, (2) the evidence was

material, and (3) the State knew that the evidence was false.

See Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997) (citing

Giglio, 405 U.S. at 153-54); Westley v. Johnson, 83 F.3d 714, 726

(5th Cir. 1996).

After a review of the evidence presented at the state habeas

evidentiary hearing, the state habeas court concluded that

Coulson “fail[ed] to show that his right to due process was

violated concerning the location, discovery, recovery, and

admission into evidence of [the envelope].” Then, in the federal

habeas proceedings, regarding the first and third elements of

this alleged false-evidence violation, the district court

assumed, without deciding, that the trial testimony and evidence

relating to the location of the envelope was “false” and

concluded that the State “should have known” the evidence was

false. We agree that the state evidentiary hearing, which

demonstrated that Detective Halling falsely informed the trial

court under oath that Exhibits 15 and 16 accurately depicted the

scene of the crime on the night of the murders, sufficiently

establishes that the evidence regarding the location of the

envelope was “false.” We also agree that this knowledge may be

19 imputed from the police to the prosecution. See United States v.

Antone, 603 F.2d 566, 569 (5th Cir. 1979) (“Had the investigators

been federal, their knowledge would have been imputed to the

prosecution. In considering use of perjured testimony this Court

has declined to draw a distinction between different agencies

under the same government, focusing instead upon the ‘prosecution

team’ which includes both investigative and prosecutorial

personnel.”). We pretermit, however, any consideration of

whether the State knew the evidence was false (an issue as to

which the state habeas court’s findings are somewhat unclear),

because this case can be resolved by looking at whether the

evidence was material.

In Giglio v. United States, the Supreme Court explained that

false evidence is “material” if there is “‘any reasonable

likelihood [that the false evidence could] have affected the

judgment of the jury.’” 405 U.S. at 154 (quoting Napue v.

Illinois, 360 U.S. 264, 269 (1959)); see also Barrientes v.

Johnson, 221 F.3d 741, 756 (5th Cir. 2000), cert. dism’d by 121

S. Ct. 902 (2001); Moody, 139 F.3d at 484; Nobles, 127 F.3d at

415; Westley, 83 F.3d at 726; Kirkpatrick v. Whitley, 992 F.2d

491, 497 (5th Cir. 1993).

20 This court has recognized the difference between the

materiality standard for false-evidence claims, as described in

Giglio, and the one for Brady13 claims:

We observe that different standards of materiality apply to Brady claims and claims that the prosecution has knowingly used perjured testimony or false evidence. The materiality standard for Brady claims, regardless of whether the defense made a specific or general request (or no request at all) for the withheld evidence prior to trial, is as follows: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would be different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Conversely, if the prosecutor has knowingly used perjured testimony or false evidence, the standard is considerably less onerous: the conviction “must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury’s verdict[.]”

Kirkpatrick, 992 F.2d at 497 (emphasis added) (footnotes and some

internal quotations omitted) (quoting James v. Whitley, 926 F.2d

1433, 1439 (5th Cir. 1991), and United States v. Bagley, 473 U.S.

667, 679 n.9 (1985), respectively).

Furthermore, materiality is a mixed question of law and

fact. See Nobles, 127 F.3d at 416. As such, to the extent that

the state habeas court adjudicated the issue of materiality on

the merits, we are precluded from affording habeas relief to

Coulson unless the state court’s decision “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United States.”

13 Brady v. Maryland, 373 U.S. 83 (1963).

21 28 U.S.C. § 2254(d)(1); see also Murphy v. Johnson, 205 F.3d 809,

813 (5th Cir.), cert. denied, 121 S. Ct. 380 (2000).

The district court addressed the materiality issue in

Coulson’s false-evidence claim in two extremely thorough and

well-reasoned memorandum opinions, one addressing Coulson’s

application for a writ of habeas corpus and the second examining

Coulson’s claim on his motion for reconsideration. In its first

memorandum opinion, the district court concluded that there was

“compelling independent” evidence which precluded a finding that

there was any reasonable likelihood that the jury “would have

been influenced by the envelope’s true location” and that the

evidence “suggests strongly that [Coulson] would have been

convicted even absent the allegedly fabricated evidence.”

On appeal, Coulson contends that the district court “took a

wrong turn when it relied on the construction of the Giglio

standard [of materiality] deriving from United States v.

Anderson, 574 F.2d 1347, 1354 (5th Cir. 1978).” Coulson argues

that, instead of asking whether the jury’s verdict might have

been affected, the district court relied on Anderson’s language

to hold that in order for a court to find materiality, it must

conclude that the jury’s verdict might have been different. See

Anderson, 574 F.2d at 1356 (“A new trial is necessary when there

is any reasonable likelihood that disclosure of the truth would

have affected the judgment of the jury, that is, when there is a

reasonable likelihood its verdict might have been different.”

22 (emphasis added)). Coulson asserts that this underscored

language in Anderson places a “gloss” over the Giglio standard,

which incorporates an “outcome-determinative” component, making

proof of materiality a more onerous burden for the accused — a

burden equivalent to the one required by Brady.

At one point in its first memorandum opinion, the district

court did quote Anderson as stating, “A new trial is necessary

when there is any reasonable likelihood that disclosure of the

truth would have affected the judgment of the jury, that is, when

there is a reasonable likelihood the verdict might have been

different.”14 However, while the court did recite this standard,

it made perfectly clear that it was applying the Giglio “affected

the judgment” standard. In fact, in a footnote, the district

court recognized the difference between the Giglio and

Brady standards, observing that the Giglio materiality standard

14 We note that while Anderson does define the false- evidence materiality standard in this language, the remainder of the Anderson opinion recognizes that “[e]ach type of situation requires the application of a separate analysis and a distinct test for materiality in order to determine whether or not the alleged suppression was so fundamentally unfair as to deny the Due Process right of a fair trial.” 574 F.2d at 1353. The Anderson court recognized the appropriate standard for false- evidence claims that a conviction must be set aside “‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’” Id. at 1355 (emphasis added) (quoting United States v. Agurs, 427 U.S. 97, 103 (1975)). The court also acknowledged that the false-evidence materiality standard was the “lowest threshold.” See id. Thus, Coulson is correct that a proper reading of Anderson cannot be based solely on the language adopted by the district court in its first memorandum opinion.

23 was “considerably less onerous” than the Brady standard.15

Still, in “an exercise of caution,” the district court, in its

second memorandum opinion, reconsidered its judgment in light of

Coulson’s argument that it had applied a standard equivalent to

the one in Brady and arrived at the same conclusion as it did in

its first memorandum opinion — that “[t]here is no reasonable

likelihood that in this case the false evidence could have

affected the jury’s verdict.” We agree with the district court

that, considering the compelling independent evidence adduced at

trial, there is no reasonable likelihood that the evidence

regarding the location of the envelope could have affected the

judgment of the jury.

Materiality must be evaluated in light of all of the

evidence. See United States v. Magouirk, 680 F.2d 108, 110 (11th

15 The district court explained:

It should be noted that the standard for materiality for the presentation of false testimony is different than the materiality standard for Brady claims. The materiality standard for Brady claims focuses on whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. The materiality standard for the presentation of fraudulent testimony, however, is considerably less onerous: the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury’s verdict[.]

(Internal quotations omitted, citations omitted, and emphasis added).

24 Cir. 1982) (“The false testimony must be material before a

conviction will be overturned, and materiality must be evaluated

in light of all the evidence adduced at trial.”); Anderson, 574

F.2d at 1355; cf. United States v. Valenzuela-Bernal, 458 U.S.

858, 874 (1982); United States v. McLernon, 746 F.2d 1098, 1122

(6th Cir. 1984). At the same time, however, our review of the

independent evidence is not a sufficiency of the evidence review.

See United States v. Barham, 595 F.2d 231, 242 (5th Cir. 1979)

(“There is no doubt that the evidence in this case was sufficient

to support a verdict of guilty. But the fact that we would

sustain a conviction untainted by the false evidence is not the

question.”); cf. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (“The

second aspect of [United States v. ]Bagley[, 473 U.S. 667 (1985)]

materiality bearing emphasis here is that it is not a sufficiency

of evidence test.”); United States v. Smith, 77 F.3d 511, 515

(D.C. Cir. 1996) (stating, in evaluating a Brady claim, that “the

test for materiality is not a sufficiency-of-the-evidence test”).

As we explained above, false evidence is “material” only if

there is “‘any reasonable likelihood [that it could] have

affected the judgment of the jury.’” Giglio, 405 U.S. at 154

(quoting Napue, 360 U.S. at 269); see also Moody, 139 F.3d at

484. In United States v. Bagley, the Supreme Court explained

that this materiality standard “is equivalent to the Chapman[ v.

California, 386 U.S. 18 (1967)] harmless-error standard.” 473

U.S. 667, 679 n.9 (1985); see also United States v. Alzate, 47

25 F.3d 1103, 1110 (11th Cir. 1995); Barham, 595 F.2d at 242 (“[The

false-evidence materiality standard] is the brother, if not a

twin, of the standard (‘harmless beyond a reasonable doubt’) for

determining whether constitutional error can be held harmless.”).

Under the Chapman standard, then, “the beneficiary of a

constitutional error [must] prove beyond a reasonable doubt that

the error complained of did not contribute to the verdict

obtained.” Chapman, 386 U.S. at 24. “A strict standard is

appropriate because, as the Supreme Court has explained, false

testimony cases involve not only ‘prosecutorial misconduct,’ but

also ‘a corruption of the truth-seeking function of the trial

process.’” Barham, 595 F.2d at 242 (quoting United States v.

Agurs, 427 U.S. 97, 104 (1975)).

“To say that an error did not contribute to the verdict is

. . . to find that error unimportant in relation to everything

else the jury considered on the issue in question[.]” Yates v.

Evatt, 500 U.S. 391, 403 (1991), overruled on other grounds by

Estelle v. McGuire, 502 U.S. 62 (1991). Thus, under Chapman, a

reviewing court must “make a judgment about the significance of

the presumption [created by the false evidence] to reasonable

jurors, when measured against the other evidence considered by

those jurors independently of the presumption.” Id. at 404.

The district court recognized that “[t]he envelope was one

of many pieces of evidence that the State introduced at trial to

prove [Coulson]’s motive and opportunity to commit the murders”

26 and that “[t]he envelope was only a small piece of a complex

evidentiary record and the State’s argument about it was one of

many contentions in closing argument at the trial.”16 The

district court pointed to the following independent evidence of

Coulson’s guilt: (1) statements made by Coulson in the tape-

recorded conversation with Althaus and his insistence that

Althaus should stick by the alibi the two had created; (2)

Coulson’s statements to his friend Kenneth Smith, including “I

could have run. But what the hell, I did it, and I’m not going

to run.”; (3) evidence that suggested Coulson’s alibi was

manufactured; (4) evidence that Coulson did not grieve over the

death of his family members; (5) evidence that someone who was

intimately familiar with the Coulson residence committed the

murders; (6) statements by Coulson in which he ostensibly joked

about his parents spending his inheritance and about them dying;

(7) evidence that Coulson had financial difficulties and desired

to live beyond his means; (8) evidence that Coulson called the

family lawyer soon after the murders to inquire into the size of

his inheritance, his desire to have his parents’ wills probated

16 The district court also evaluated the effect of the evidence on Althaus’s testimony, concluding that “while the supposed location of the envelope did tend to corroborate one small aspect of Althaus’s testimony, i.e., that [Coulson] notified his family that he would visit the Coulson house the evening of the murders, evidence concerning the true location of the envelope would not necessarily discredit Althaus’s testimony.” We agree with the district court that the fact that the envelope was not located in the center of the desktop does not necessarily call Althaus’s testimony into doubt.

27 as soon as possible, and his concern over the fact that another

heir to his parents’ estate might exist; (9) testimony by

Althaus’s brother that Coulson stated, “My parents have screwed

me for the last time. I’m going to kill them.”; (10) testimony

demonstrating that Coulson had “precise knowledge” as to where

each of the five bodies were found; and (11) Coulson’s testimony

that he knew Robin and Richard went to the Coulson residence

every Friday night.17

We agree with the district court that “[g]iven the

overwhelming quantity and quality of the other evidence in the

record supporting the jury’s verdict, . . . the introduction of

erroneous information concerning the location of the envelope was

not ‘material’ for the purpose of false evidence claims, i.e.,

that there was a reasonable likelihood that a disclosure of the

truth would have affected the judgment of the jury.” (Citations

omitted).18 Without minimizing the error of the State in

17 Like the district court, in reviewing the independent evidence, we do not take into account Coulson’s statements made to the arresting officers, as they are the subject of Coulson’s limiting-instruction claim. See infra Part VI.C. We conclude the independent evidence demonstrates a lack of materiality without these statements. 18 Coulson charges that the “improper willingness to view ambiguities and conflicts in the record in the light most favorable to the conclusion that the false evidence was not material permeate[d] the district court’s entire analysis.” Coulson contends that the evidence upon which the district court relied can not be considered “compelling” because it was “ambiguous” and “hotly contested.” While the summary judgment standard requires that a court entertaining a motion for summary judgment must view the evidence in the light most favorable to

28 introducing the inaccurate evidence and testimony, when measured

against the other independent evidence of Coulson’s guilt, we

conclude that the effect of the evidence regarding the location

of the envelope was “comparatively minimal” and thus did not

“contribute to” the jury’s verdict, such that the jury still

would have found Coulson guilty beyond a reasonable doubt. See

Chapman, 500 U.S. at 405. Accordingly, the state habeas court’s

decision did not rest on an unreasonable application of federal

law, 28 U.S.C. § 2254(d)(1), and we affirm the district court’s

grant of summary judgment in favor of Johnson on Coulson’s false-

evidence claim.19

the nonmovant, in habeas proceedings, that court is also bound by the dictates of AEDPA. The state habeas court made numerous findings of fact regarding the evidence that was presented at trial on which the district court (and this court) relied. Coulson points to his testimony at trial to demonstrate that the evidence cited by the district court was “hotly contested.” We believe, however, that Coulson has not adduced “clear and convincing” evidence for us to conclude that the state habeas court’s factual findings are erroneous. See 28 U.S.C. § 2254(e)(1) (Supp. 2001) (“The applicant shall have the burden of rebutting the presumption of correctness [of the state court’s factual findings] by clear and convincing evidence.”). Therefore, the district court properly considered the above-cited evidence to conclude that materiality was lacking. 19 In its second memorandum opinion, the district court also conducted a Brecht v. Abrahamson, 507 U.S. 619 (1993), harmless-error review, stating that in Barrientes v. Johnson, 221 F.3d at 756, this court held that a reviewing court utilizing the “any reasonable likelihood” standard of materiality must apply the Brecht harmless-error standard if a petitioner demonstrates a valid claim. Under the Brecht harmless-error standard, a court must consider whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637 (internal quotations omitted) (quoting Kotteakos v. United

29 V. BRADY CLAIM

In his brief supporting his federal petition for a writ of

habeas corpus, Coulson argued to the district court that he was

entitled to relief under Brady v. Maryland, 373 U.S. 83 (1963),

because “of the failure of the prosecution to disclose its

knowledge . . . that its evidence showing the location of the

envelope . . . on the night of the murders was false.” He

claimed that the evidence adduced at the state habeas proceeding

demonstrated that the State had the information at its disposal

to show the jury that State’s Exhibits 15 and 16 were not taken

by Detective Halling on the night of the murders and that the

envelope had, in fact, been moved from its original location and

placed in the center of the desktop. Coulson argued that the

State’s failure to disclose this information violated his due

process rights.

“The suppression of evidence material to guilt or punishment

violates a defendant’s fundamental due process rights.” Dowthitt

v. Johnson, 230 F.3d 733, 755 (5th Cir. 2000), cert. denied, 121

States, 328 U.S. 750, 776 (1946)). We note that in Barrientes, this court did not require that courts in this circuit conduct such a review; we only “assume[d], without deciding,” that the application of the Brecht harmless error standard of review would be appropriate in that case. However, even if we were to assume here (again, without deciding) that such an analysis is necessary, we agree with the district court that any error would not require reversal because the false evidence in this case does not meet the Brecht standard of having a “substantial and injurious effect or influence in determining the jury’s verdict.” Id.

30 S. Ct. 1250 (2001). The State’s duty to disclose such evidence

applies even when the defendant made no request for it. See

Strickler v. Greene, 527 U.S. 263, 280 (1999). To demonstrate a

Brady violation, Coulson must show that (1) the evidence was

favorable to him, (2) the State suppressed the evidence, and (3)

the evidence was material. See Strickler, 527 U.S. at 281-82;

United States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000);

Dowthitt, 230 F.3d at 755. As with Coulson’s false-evidence

claim, the materiality component is also the dispositive element

on this claim.

For the Brady materiality analysis, evidence is considered

“material” if “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley,

473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S.

419, 433-34 (1995). “A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” Bagley, 473

U.S. at 682.

The state habeas court concluded that Coulson failed to

demonstrate “that either the police or the prosecution

manufactured evidence or suppressed information concerning the

location, discovery, recovery, and admission into evidence of

[the envelope].” The district court held that the state court’s

conclusion was not contrary to, and did not involve an

31 unreasonable application of, Brady. See 28 U.S.C. § 2254(d)(1).

We agree.

As we stated above, the dispositive issue here is whether

the evidence regarding the true location of the envelope was

material. Coulson’s Brady claim fails on this point. In Part

IV.B supra, we observed that Brady’s standard of materiality is

more demanding than that for false-evidence claims (i.e., Brady

requires a showing that, without the challenged suppression, the

outcome would have been different, not merely affected).

Because we have already determined that Coulson’s false-

evidence claim does not meet the less onerous Giglio materiality

standard, it “necessarily follows” that his Brady claim is

similarly doomed. Cf. United States v. Anderson, 574 F.2d 1347,

1356 (5th Cir. 1978) (“Once we have concluded that the challenged

suppression fails to satisfy the lowest Brady doctrine threshold

for materiality and reversal, it necessarily follows that the

application of higher thresholds, which require greater showings

of materiality in order to gain a reversal, cannot aid Anderson

in his cause.”). Accordingly, because there is no reasonable

probability that the result of the proceeding would have been

different had the State disclosed evidence regarding the true

location of the envelope, we conclude that district court

properly granted summary judgment in favor of Johnson on

Coulson’s Brady claim.

32 VI. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS

We now evaluate Coulson’s claims that his conviction

violated the Sixth Amendment’s guarantee of effective assistance

of counsel because his trial counsel (1) failed to object to the

State’s use of Coulson’s post-arrest, post-Miranda silence, which

was protected under Doyle v. Ohio, 426 U.S. 610 (1976), and (2)

failed to request a limiting instruction on the arresting

officers’ testimony regarding Coulson’s statements in the police

van after his arrest. Our review under AEDPA has many layers.

Regarding Coulson’s Doyle claim, in resolving the question

whether the state habeas court unreasonably applied the well-

established Strickland v. Washington, 466 U.S. 668 (1984) test

for ineffective assistance of counsel, we must also decide

whether there was a predicate constitutional Doyle error and

whether the state habeas court was objectively unreasonable in

applying that clearly established federal law. We address first

the Strickland standard and then the Doyle claim within that

standard. We then turn to Coulson’s second ineffective

assistance claim involving the limiting instruction.

A. The Standard for Ineffective-Assistance-of-Counsel Claims

Ineffective-assistance-of-counsel claims are evaluated under

the standard announced in Strickland. See 466 U.S. at 687. To

obtain relief for ineffective assistance of counsel, Coulson must

demonstrate that (1) trial counsel’s performance was deficient

33 and (2) the deficient representation prejudiced his defense. See

id.; Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999).

Deficient performance is established by demonstrating that

“counsel’s representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688; Kitchens, 190 F.3d

at 701. “This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland,

466 U.S. at 687; see also (Terry) Williams v. Taylor, 529 U.S.

362, 390 (2000).

The latter showing of the Strickland test — that counsel’s

performance prejudiced the defendant — requires the defendant to

demonstrate that “counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.”

466 U.S. at 687; (Terry) Williams, 529 U.S. at 390. To establish

prejudice, a defendant “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland,

466 U.S. at 694; (Terry) Williams, 529 U.S. at 391.

Under AEDPA, because they involve mixed questions of law and

fact, ineffective-assistance-of-counsel claims are evaluated

under the standard of review contained in 28 U.S.C. § 2254(d)(1).

See Kitchens, 190 F.3d at 701. As stated, a federal habeas court

is precluded from granting relief on Coulson’s claims, unless

“the state court decision rested on ‘an unreasonable application

34 of application of clearly established federal law.’” Id.

(quoting 28 U.S.C. § 2254(d)(1)); see also supra Part III.

B. Doyle Claim

After Coulson’s arrest, the arresting officers placed him in

the back of a police van to transport him to the police station.

Coulson received his Miranda warnings and then answered several

of the officers’ questions, making incriminating statements in

the process. During this exchange with the officers, Coulson did

not deny his involvement in the murders.

At trial, Coulson testified on his own behalf and, on direct

examination, categorically denied any involvement in the murders.

Furthermore, on direct examination, Coulson denied making the

incriminating statements in the back of the police van, including

an admission to killing his family. On cross-examination, the

State asked him three separate times whether, when questioned by

the officers in the back of the van, he denied his involvement in

the murders. Each time, Coulson responded that he did not deny

killing his family members.20

Coulson argued to the district court that the prosecutor’s

questions highlighted the fact that he was silent instead of

speaking up and denying his role in the murders. Coulson

contended to the court that this post-arrest, post-Miranda

silence was protected by Doyle and that his trial counsel’s

20 See infra notes 23 & 24.

35 failure to object constituted ineffective assistance of counsel.

Coulson argued that there was “no imaginable strategic

justification for deliberately allowing the prosecutor illegally

to impeach [him] even once, much less repeatedly” and that

counsel’s error denied him a fair trial.

The state habeas court concluded that “[t]he State properly

attempted to impeach [Coulson] concerning his prior, exculpatory

testimony presented during direct examination that he had told

police officers certain things after his arrest, but he had not

told police that he killed his family.” Furthermore, the state

court determined that Coulson failed to demonstrate that the

result of the proceeding would have been different if counsel had

objected to the questions by the State.

In Doyle, the Supreme Court held that the Due Process Clause

prohibits the government from using a defendant’s post-arrest,

post-Miranda silence to create an inference of guilt. See Doyle,

426 U.S. at 617-1821; see also United States v. Garcia-Flores,

21 The Supreme Court explained why this prohibition is necessary:

Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of

36 246 F.3d 451, 455 (5th Cir. 2001).22 Doyle does not apply,

however, “to cross-examination that merely inquires into prior

inconsistent statements.” Anderson v. Charles, 447 U.S. 404, 408

(1980) (per curiam). This is so because “[s]uch questioning

makes no unfair use of silence, because a defendant who

voluntarily speaks after receiving Miranda warning has not been

induced to remain silent.” Id.

As the state habeas court found, Coulson “voluntarily spoke”

to the arresting officers after being placed in the van and read

his Miranda warnings. However, the fact that Coulson spoke to

the police, without more, does not mean that Coulson’s silence

these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Doyle, 426 U.S. at 617-18 (footnotes and citations omitted). 22 In United States v. Shaw, this court recognized that the Doyle standard is “strict.” See 701 F.2d 367, 382 (5th Cir. 1983). Moreover, we have repeatedly observed that “virtually any description of a defendant’s silence following arrest and a Miranda warning will constitute a Doyle violation.” Id.; see also United States v. Rodriguez, 43 F.3d 117, 121 (5th Cir. 1995); United States v. Pennington, 20 F.3d 593, 599 (5th Cir. 1994); United States v. Laury, 985 F.2d 1293, 1303 (5th Cir. 1993); United States v. Blankenship, 746 F.2d 233, 238 (5th Cir. 1984). However, although this court has continuously professed this belief, we have qualified it by stating that “a prosecutor’s comments must be viewed in context.” Pennington, 20 F.3d at 599; see also Laury, 985 F.2d at 1303; Blankenship, 746 F.2d at 238.

37 was automatically admissible. See Pitts v. Anderson, 122 F.3d

275, 280 (5th Cir. 1997) (stating that this rule “does not mean

that anytime a defendant makes a post-Miranda statement the

prosecution has carte blanche to use the defendant’s silence to

impeach him”); United States v. Pennington, 20 F.3d 593, 599 (5th

Cir. 1994) (“[T]he defendant’s willingness to give some

statements after arrest does not give the prosecutor the right to

impeach him by commenting on what he did not say.”). Instead, to

determine whether a Doyle violation occurred at trial, this court

applies two alternative tests. See United States v. Shaw, 701

F.2d 367, 381 (5th Cir. 1983). Pursuant to these tests, a court

entertaining a Doyle claim must determine (1) “whether the

[prosecutor’s] ‘manifest intent’ was to comment on the

defendant’s silence” or, alternatively, (2) “whether the

character of the remark was such that the jury would ‘naturally

and necessarily’ construe it as a comment on the defendant’s

silence.” Id.; see also United States v. Laury, 985 F.2d 1293,

1303 (5th Cir. 1993); Pennington, 20 F.3d at 599.

The district court concluded that the prosecutor’s intent in

asking each time whether Coulson denied killing his family was

not to focus on Coulson’s right to remain silent, but to focus on

“why at arrest he admitted to the murders and failed to deny

killing his family, but at trial he asserted clear denials.”

Because it concluded that the prosecutor intended only to impeach

Coulson, the court determined that there was no Doyle violation.

38 As we explain below, while we differ somewhat from the district

court in our approach to some of the alleged Doyle errors, we

cannot say that the state habeas court applied Strickland in an

objectively unreasonable manner.

First, we do agree with the district court that the third

exchange between the prosecutor and Coulson,23 if taken in

context, could qualify as an attempt to impeach Coulson on his

prior inconsistent statements to the police. In that exchange,

the prosecutor appears to be attempting to demonstrate that

Coulson’s testimony at trial — that he was at the Town and

Country Mall at the time of the murders — was inconsistent with

his prior statements to the police that he and Althaus were out

of town at the farm. If Coulson had actually gone to the mall,

instead of the farm, he arguably should have told the police upon

23 The third exchange between the State and Coulson went as follows:

Q Now, if your alibi story wasn’t true, that still didn’t make you guilty, did it?

A Didn’t make me what?

Q Didn’t make you guilty, did it?

A Guilty of lying to the police about my alibi story, yes, sir.

Q And of course, you never said anything to the police officers when they arrested you about, “Look, all I did was lie about the alibi. I had nothing to do with killing my parents.” You never said that?

Q No, sir.

39 his arrest. Therefore, the prosecution’s questions could have

been “designed to highlight the inconsistenc[ies]” between

Coulson’s alibi and his trial testimony. See Pitts, 122 F.3d at

282.

However, in the first two instances that the prosecution

questioned Coulson regarding whether he denied killing his

family,24 the questions were neither preceded nor followed by any

reference to any prior inconsistent statements or admissions made

by Coulson in the police van. In simple terms, the questions

came “out of the blue.” It is, therefore, less clear that these

questions did not result in a Doyle violation.

Even if we assume arguendo that a Doyle violation occurred

in connection with the first two statements and that counsel’s

failure to object to the Doyle violation constituted performance

sufficiently deficient to violate Strickland (a conclusion we do

not make here), we still must determine whether Coulson was

24 Specifically, the following cross examination took place between the State and Coulson:

(1) Q At any time that you talked to the police after you were arrested, did you deny that you killed your family.

A No, sir. I don’t believe I mentioned anything at all about anything.

(2) Q Now, did you ever deny to the police officers that you killed your parents?

A No, sir. I didn’t say anything.

40 prejudiced thereby. We conclude that the state habeas court did

not make an unreasonable application of federal law when it

decided that Coulson failed to demonstrate that the result of the

proceeding would have been different if counsel had objected to

the questions by the State. It is evident that, in making its

determination of lack of prejudice, the state habeas court

considered the totality of the evidence that was before the jury.

As demonstrated supra in Part IV.B, the evidence of Coulson’s

guilt, although circumstantial, was compelling, and it is clear

that had trial counsel objected to the questions, there is no

reasonable probability that the jury verdict would have been

different. See Strickland, 466 U.S. at 694; (Terry) Williams,

529 U.S. at 391. Accordingly, the state habeas court did not

apply Strickland in an objectively unreasonable manner, and the

district court was correct in granting summary judgment in favor

of Johnson on Coulson’s Doyle claim.

C. Limiting-Instruction Claim

Because the district court refused to grant Coulson a COA on

his limiting-instruction claim, Coulson must first obtain a COA

before we can review the district court’s denial of habeas

relief. See 28 U.S.C. § 2253(c)(1)(A) (Supp. 2001); see also

Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000), cert.

denied, 121 S. Ct. 1250 (2001). Therefore, Coulson has applied

to this court for a COA on his limiting-instruction claim. For

the following reasons, we deny Coulson’s request.

41 1. Standard of Review for a COA

Under AEDPA, we are precluded from issuing a COA to Coulson

unless he makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Kutzner

v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001). “This standard

‘includes showing that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.’”

Dowthitt, 230 F.3d at 740 (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)). If the district court has denied a petition

for a writ of habeas corpus on substantive grounds, Coulson must

demonstrate that “reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.” Kutzner, 242 F.3d at 608 (internal quotations omitted)

(quoting Slack, 529 U.S. at 484). Furthermore, “the

determination of whether a COA should issue must be made by

viewing the petitioner’s argument through the lens of the

deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes

v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dism’d by

121 S. Ct. 902 (2001); see also Kutzner, 242 F.3d at 608.

2. Coulson Has Failed to Make a Substantial Showing of

the Denial of a Constitutional Right with Respect

to His Limiting-Instruction Claim

42 As discussed supra in Part VI.B, after Coulson was arrested,

he was placed in a police van and was questioned by police. At

Coulson’s trial, the State introduced in rebuttal the testimony

of two of the arresting officers who rode with Coulson in the

back of the van to the station. Those officers testified that,

en route to the police station, Coulson made several

incriminating statements and confessed to killing his family. At

no point during this rebuttal testimony did trial counsel seek a

limiting instruction to inform the jury that the testimony should

have been considered only for its impeachment value. Coulson

contends that trial counsel provided deficient performance when

they failed to ask for such a limiting instruction at trial.

Under Texas law, “[n]o oral . . . statement of an accused

made as a result of custodial interrogation shall be admissible

against the accused in a criminal proceeding unless” the

statement is recorded under certain delineated circumstances.

See TEX. CODE. CRIM. PROC. art. 38.22, § 3 (Vernon 1979 & Supp.

2001). However, this rule does not preclude “the admission . . .

of a voluntary statement, whether or not the result of custodial

interrogation, that has a bearing upon the credibility of the

accused as a witness[.]” See id. § 5. If such a statement is

offered by the State against the defendant, the defendant is

entitled to a limiting instruction that the jury may only

consider the evidence for its impeachment value. See TEX. R.

CRIM. EVID. 105(a); cf. TEX. R. EVID. 105(a).

43 The state habeas court stated in its findings of fact that

trial counsel claimed in their affidavits that “they did not

request a limiting instruction because the oral statement was

‘probably admissible as an admission against penal interest’ and

because they did not think they were entitled to such an

instruction.” Furthermore, the state court concluded as a matter

of law that Coulson “fail[ed] to show that the outcome of the

proceeding would have been different if counsel had requested and

received a limiting instruction concerning [Coulson]’s oral

statement.” The state habeas court also concluded that Coulson’s

“conviction is supported by sufficient evidence, notwithstanding

[his] oral admission; [Coulson]’s testimony itself create[d] a

credibility issue between [Coulson] and many of the State’s

witness; and, Jared Althaus’ testimony as an accomplice [was]

corroborated by extensive evidence other than [Coulson]’s oral

statement.” (Emphasis added).

The district court25 recognized that the state habeas court

“referred to an improper standard when it noted that sufficient

evidence supported [Coulson]’s conviction without the police

25 Instead of focusing on whether counsel’s performance was deficient, however, the district court determined that because the “thrust” of the state habeas court’s decision focused on potential prejudice, it “need[ed] only [to] examine the effect of failing to seek a limiting instruction.” See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) (“A court need not address both components of the inquiry if the defendant makes an insufficient showing on one.”).

44 officers’ testimony of [Coulson]’s admissions to them.” This is

because the Strickland test, which is “identical to” the Brady

standard, is not a sufficiency of the evidence test. See Felder

v. Johnson, 180 F.3d 206, 214 (5th Cir.), cert. denied, 528 U.S.

1067 (1999); see also Martin v. Cain, 246 F.3d 471, 477 (5th Cir.

2001); East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997).

Nonetheless, the district court observed that the state habeas

court “did not end its inquiry there” and that it analyzed the

admission in the context of the other testimony presented at

trial. The district court held that the state court’s decision

could not be said to involve an unreasonable application of

federal law because “it is evident that the state habeas court

looked at the entire record and found that, because of the other

evidence presented to the jury, the absence of a limiting

instruction regarding [Coulson]’s admissions to the police did

not create a reasonable probability that the result of the

proceedings would have been different.”26 Even with this

26 The district court considered the state habeas court’s findings of fact and stated:

Specifically, in the portion of the findings of fact devoted to the limiting instruction issue[,] the state habeas court recognized that other witnesses testified that [Coulson] had made remarks prior to the murders about his family dying so that he could receive his inheritance, that [Coulson] had previously threatened (possibly in jest) to kill his family, and that he demeaned various family members in conversations with others. The court also found that [Coulson] had made incriminating statements to [his girlfriend] Jerri Moore, Kenneth Smith, and Jared Althaus. The state

45 conclusion, the district court also observed that, assuming the

state court had employed the wrong standard, the district court

“independently concludes that the evidence . . . establishes that

Coulson has not satisfied the prejudice prong under Strickland.”

Coulson argues here that “[w]hile both [the state habeas

court and the district court] purported to review the entirety of

the record of Coulson’s trial, each court was content to review

all of the evidence in the light most favorable to the verdict,

just as a reviewing court is directed to do when it conducts an

analysis for legal sufficiency.” Coulson contends that this type

of analysis constitutes an “unreasonable application” of

Strickland to the facts of his case, and therefore, he should be

afforded habeas relief. We disagree.

It is true that the state habeas court concluded that there

was “sufficient evidence” to support Coulson’s conviction.

Furthermore, we agree with both Coulson and the district court

that this is an improper standard under Strickland. This court

has held that “the standard for prejudice under Strickland is

‘identical to’ the standard for materiality under Brady.”

Felder, 180 F.3d at 214 (quoting Johnson v. Scott, 68 F.3d 106,

109-10 (5th Cir. 1995)); see also Martin, 246 F.3d at 477. And

habeas court also noted that in [Coulson]’s testimony he claimed that the prior statements concerning his admissions were all fabrications.

(Citations to record omitted).

46 “[t]he Supreme Court has warned that the Brady materiality

analysis ‘is not a sufficiency of evidence test.’” East, 123

F.3d at 239 (quoting Kyles v. Whitley, 514 U.S. 419, 434-35

(1995)). Even so, for the reasons below, we agree with the

district court that the state habeas court’s discussion of

sufficiency of the evidence was not fatal to the state habeas

court’s decision.

In determining whether there was prejudice, a reviewing

court is required to consider the totality of the evidence before

the jury. See Johnson v. Scott, 68 F.3d 106, 109 (5th Cir.

1995). Our review of the state habeas court’s findings of fact

and conclusions of law demonstrates that the state court

considered the entirety of the evidence adduced at trial to hold

that Coulson “fail[ed] to show that the outcome of the proceeding

would have been different if counsel had requested and received a

limiting instruction.” Considering that the state habeas court

evaluated the totality of the evidence before the jury in making

its conclusion, we conclude that this was not an objectively

unreasonable application of federal law. See 28 U.S.C.

§ 2254(d)(1). Accordingly, Coulson has failed to demonstrate

that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,”

Kutzner, 242 F.3d at 608, and we are precluded from granting a

47 COA to Coulson because he has not made “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).27

VII. CONCLUSION

For the foregoing reasons, the district court’s denial of

habeas relief is AFFIRMED, and Coulson’s application for a

certificate of appealability on his limiting-instruction claim is

DENIED.

27 Because we have determined that Coulson has failed to demonstrate prejudice, we need not address Strickland’s deficient performance prong. See Armstead, 37 F.3d at 210.