Revised January 13, 1999
UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
____________
No. 97-50606 ____________
LYNN MURPHY CREEL,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for the Western District of Texas
December 23, 1998
Before POLITZ, Chief Judge, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Lynn Murphy Creel appeals the district court’s denial of his
petition for habeas corpus relief under 28 U.S.C. § 2254. A Texas
jury convicted Creel of capital murder and sentenced him to life
imprisonment. He argues that the district court erred in ruling
(1) that a lesser-included-offense instruction was not warranted;
(2) that undisclosed perjury of a witness was not material to his case; (3) that the state did not violate his Sixth Amendment right
to counsel; (4) that an evidentiary hearing should not be held on
his claim of actual innocence; and (5) that his trial counsel did
not render ineffective assistance. We affirm.
I
Creel met Wilson Smith (“Smith”), the man whom Creel was
later convicted of murdering, through Irene Plangman. Plangman
had become acquainted with Mrs. Joan Smith (“Joan”) through
business dealings, and Plangman lived briefly with the Smiths.
During that time, Plangman and Creel were sexually intimate.
Creel sold Joan some jewelry, and Plangman acted as an
intermediary in the transaction. When Joan was unable to raise
the purchase price, Creel became angry over the sale and
Plangman’s friendship with the Smiths. Creel contacted Julie
Woodley about posing as a potential buyer for some property that
the Smiths had for sale. According to Woodley, Creel wanted to
talk to the owners about money owed to him. Woodley arranged by
telephone for Smith to meet her, and then called Creel to tell
him of the arrangement. The next morning, Smith left to meet the
potential buyer; Joan never saw Smith again.
Creel arrived later that day at Plangman’s house and told
her he had Smith in his van. He wanted her assistance and advice
in deciding what to do with Smith. When Plangman expressed
disbelief, Creel declared he “would handle things himself.” At
Plangman’s suggestion that he let Smith go, Creel responded that
-2- he, “wasn’t going to spend the rest of his life in jail for
kidnaping someone and then [having the victim] talking about it
later.” When Creel called Plangman the next day he told her,
“Well it’s all over. It’s finished.” Creel remarked, “what
happened to a person as they got older, did they just give up the
fight to live, or did they just not care, or did they just become
hard and--refused to fight for life.”
While borrowing the van a few days later, Plangman found
some of Smith’s jewelry and belongings in a side pocket. When
questioned about the jewelry, Creel stated he intended to sell
it. An employee at a local jewelry store, Charles Goodnough,
testified that Creel sold him a ring similar to one Smith was
wearing when he disappeared.
Joan reported Smith’s disappearance and gave Adolpho
Cuellar, a Texas Ranger, the names of Plangman and Creel as
possible suspects. Cuellar interviewed Plangman, who became his
chief source of information. Plangman related the jewelry
discovery to Cuellar the day after it occurred.
Others testified against Creel. Randal Graham testified
that prior to Creel’s arrest, Creel stated, “I’ve killed a man
and I’ve got his body in the back of the van, and I need you to
help me get rid of it.” Graham’s wife Catherine corroborated
this testimony. The Grahams left, declining to aid Creel.
After Medina County charged Creel with aggravated kidnapping
and aggravated robbery, Plangman disclosed communications she had
-3- with Creel while he was incarcerated. Plangman testified that
Creel’s letters to her contained coded instructions on how to
dispose of Smith’s body. Creel received information from his
cell mate, Jay Martinez, regarding the appropriate mix of acids
to dissolve a body. Creel then directed Plangman to give a
friend of his, David Wolf, information on buying acids to
dissolve the body. Wolf testified that Plangman attempted twice
to give him maps, reportedly from Creel, that led to the body.
He looked at the second map briefly before throwing it away. In
response to Cuellar’s repeated requests for the location of
Smith’s body, Plangman insisted she did not know.
The Medina County Grand Jury returned indictments for
aggravated robbery and aggravated kidnaping of Smith. At a
meeting the next day, Cuellar questioned Plangman about the
body’s location and Plangman said, “Let’s just drive.” She
directed Cuellar to a rural residence in disrepair in Bexar
County and suggested the possibility that the body was buried
there. She told Cuellar she led him there because she had been
there with Creel. Cuellar returned the next day and found
Smith’s body in a barn. Plangman also returned the next day and,
upon hearing that Cuellar found Smith’s body, said, “I did it.”
She testified later that her statement was caused by the
emotional stress and shock of finding the body.
The chief medical examiner testified about the results of
the autopsy on Smith’s body, which was identified by his
-4- dentures. Smith’s severely decomposed body did not reveal trauma
such as bullet holes or fractures. Silver-colored duct tape
covered the mouth but not the nose area; however, rodents had
eaten the nose, making it impossible to know whether the tape
originally covered all breathing passages. Removing the duct
tape revealed a knotted red cloth wedged in the mouth. Based on
the state of decomposition, the examiner testified that the body
had been buried for months.
The medical examiner expressed the opinion that the manner
of death was “homicide,” based upon the fact that the person was
bound, the mouth was stuffed with a gag, and the hands and feet
were tied and bound. Although the autopsy revealed that Smith
suffered from moderate coronary artery disease and the examiner
admitted it was possible that heart failure caused the death, the
examiner insisted he would still classify the death as a
homicide. According to the examiner, the gag in the mouth was
more dangerous than the duct tape, because a gag typically works
its way back to block the airway and eventually causes death by
choking.
A jury convicted Creel of capital murder in the 144th
District Court of Bexar County, Texas. At the sentencing phase
of trial, the jury sentenced Creel to life imprisonment. After
his conviction was affirmed on direct and state collateral
review, Creel filed a petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254.
-5- A magistrate held an evidentiary hearing on five of Creel’s
alleged grounds for relief. Much of the evidence concerned
Plangman. Cuellar testified Plangman had begun acting as an
informant six days before Creel’s arrest, and that, although
Cuellar did not instruct Plangman to obtain information, he was
hopeful she would supply it to him. Creel testified that when he
was in jail Plangman urged him to write her letters. Creel
argued Plangman assisted Cuellar in finding Woodley in exchange
for Cuellar’s help in getting the jewelry returned from Joan.
Creel testified he did not know Plangman provided information to
Cuellar until Cuellar later named her as an informant at a court
hearing.
Creel also presented newly discovered evidence of his
alleged innocence. Creel proffered evidence that Smith had
signed a document transferring title to a car after Creel had
been arrested. Creel argued that, because he was in jail, he
could not have killed Smith.
The district court adopted the magistrate’s recommendation
to deny habeas. Creel appeals this denial, having obtained a
Certificate of Probable Cause (“CPC”) from the district court.1
1 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) is inapplicable to Creel’s case, because he filed his first petition for habeas relief prior to April 24, 1996, the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, __ , 117 S. Ct. 2059, 2063, 138 L. Ed. 2d. 481 (1997). We apply pre-AEDPA law to his claims. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997).
-6- In considering a federal habeas corpus petition by a prisoner in
state custody, federal courts must generally accord a presumption
of correctness to any state court factual findings. See Mann v.
Scott, 41 F.3d 986, 973 (5th Cir. 1994)(citing 28 U.S.C. §
2254(d)). We review the district court’s findings of fact for
clear error, but decide questions of law de novo. See id.
II
Creel argues that the district court erred in finding he was
not entitled to a lesser-included-offense instruction. The state
trial court denied Creel’s request for an instruction on the
lesser included offense of felony murder, which differs from
capital murder in that felony murder does not require the
prosecution to prove an intent to kill. See Creel v. State, 754
S.W.2d 205, 211 (Tex. Crim. App. 1988)(en banc)(explaining
capital and felony murder differ only in culpable mental state).
Compare TEX. PENAL CODE ANN. § 19.03(a)(2)(West 1994)(capital
murder), with TEX. PENAL CODE ANN. § 19.02(b)(3) (felony murder).
Creel argues that due process requires that juries in
capital murder cases receive a lesser included offense
instruction when it is supported by the evidence. Creel cites
Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392
(1980), which held invalid a provision of the Alabama death
penalty statute that precluded a jury instruction on a lesser
included noncapital offense. The statute forced the jury either
-7- to convict, in which case the death penalty was imposed
automatically, or to acquit, in which case the defendant would
escape all penalties. See id. at 628-29, 100 S. Ct. at 2385.
The Court stated that the failure to give the jury the “third
option” of convicting on a lesser included offense decreases the
reliability of the verdict, because when “the defendant is
plainly guilty of some offense, the jury is likely to resolve its
doubts in favor of conviction.” Id. at 634, 100 S. Ct. at 2388
(quoting Keeble v. United States, 412 U.S. 205, 213, 93 S. Ct.
1998, 1995, 36 L. Ed. 2d 844 (1973)). This risk “cannot be
tolerated in a case in which the defendant’s life is at stake.”
Id. at 637, 100 S. Ct. at 2389.
We have applied Beck to cases in which a state trial court
refuses a lesser-included-offense instruction.2 See Cordova v.
Lynaugh, 838 F.2d 764, 767 (5th Cir. 1988). Beck itself endorsed
2 The State argues that Creel relies mistakenly on Beck, because in Livingston v. Johnson, 107 F.3d 297, 313 (5th Cir.), cert. denied, __ U.S. __, 118 S. Ct. 204, 139 L. Ed. 2d 141 (1997), we held that Beck does not apply to the Texas sentencing scheme. Although the trial court in Livingston instructed the jury on capital murder and the lesser included offense of murder, Livingston challenged the trial court’s failure to instruct additionally on felony murder. We rejected Livingston’s challenge because the jury had a “third option”: to convict on the lesser included offense of murder. We did not extend Beck, which was concerned with the all-or-nothing scheme, to cases in which the defendant did have the benefit of a third option. See id. at 313 (citing Allridge v. Scott, 41 F.3d 213, 220 (5th Cir. 1994)(stating Beck inapplicable when jury had option to choose murder over capital murder)). Livingston is inapposite because the jury that convicted Creel did not have a third option to consider.
-8- no particular standard under which a court must give a lesser-
included-offense instruction. See Reddix v. Thigpen, 805 F.2d
506, 511 (5th Cir. 1986)(“The Beck Court . . . appeared to accept
the variation in standards.”)(citation omitted). However, in
Cordova we equated the standards described approvingly in Beck
with the standard used in federal trials. See Cordova, 838 F.2d
at 767 (“[W]e conclude that the federal standard . . . is
equivalent to the Beck standard that a lesser included
instruction must be given when the evidence would have supported
such a verdict.”). The federal rule, “that the defendant is
entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of the
lesser offense and acquit him of the greater,” comports with
federal due process. Beck, 477 U.S. at 635, 100 S. Ct. at 2388
(citation omitted).
Creel maintains that the trial evidence supported the “third
option” of an instruction for felony murder. Creel argues that a
jury could rationally convict him of felony murder and acquit him
of capital murder, because the evidence is consistent with
accidental death and does not establish intent to kill Smith. He
points to the autopsy report that indicates heart failure as a
possible cause of death, the absence of tape on Smith’s nose, and
the possible use of the gag to quiet Smith, rather than to kill
him. He states his comment to the Grahams that “he killed a man”
-9- does not establish it was intentional, and that his comments to
Plangman were inconclusive due to their vagueness. He argues
that, because a jury could acquit him of capital murder, he was
entitled to an instruction on the “third option” of felony
murder.
The State argues that, because Creel is sentenced to life
imprisonment rather than death, we should treat the case as a
non-capital case. The cases since Beck in which we have
considered entitlement to a lesser-included-offense instruction
have been “purely” capital cases in which a jury convicted a
defendant and sentenced him to death. See, e.g., Linceum v.
Collins, 958 F.2d 1271, 1273, 1275 (5th Cir. 1992); Cordova, 838
F.2d at 766. This case presents, therefore, the novel issue of
whether a case in which a defendant who initially faces capital
charges, but is ultimately sentenced to life imprisonment, should
be classified as capital or non-capital for Beck purposes.3
3 Creel contends we should not review this issue because the State did not argue it to the district court. We resolve the issue because uncertainty exists with respect to a pure question of law. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d. 826 (1976)(“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the court of appeals, to be exercised on the facts of individual cases.”); Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992)(citation omitted) (noting discretion will be exercised in circumstance of uncertain state of the law). This purely legal uncertainty distinguishes this case from those in which we apply plain error review to the issues presented first to the appellate court. See Rhett R. Dennerline, “Pushing Aside the General Rule in Order to Raise New Issues on Appeal,” 64 Ind. L.J. 985, 999 (1989)(explaining how
-10- Several circuits classify cases in which the death penalty
is sought, but not imposed, as noncapital cases. See Pitts v.
Lockhart, 911 F.2d 109, 112 (8th Cir. 1990) (finding case should
be treated as noncapital case for purpose of due process);
Trujillo v. Sullivan, 815 F.2d 597, 602 (10th Cir. 1987)(same).
The concerns in Beck, that a defendant should not be sentenced to
death automatically if a jury cannot convict on a lesser offense,
are absent in cases in which the death penalty is not imposed
ultimately. These cases do not implicate directly the Eighth
Amendment’s prohibition on cruel and unusual punishment, which
courts interpret to require greater procedural safeguards in
capital cases. See Trujillo, 815 F.2d at 601, 602 (stating
Eighth Amendment values not implicated). Creel did not receive
the death sentence, and therefore his case is analytically more
similar to a noncapital case.
Creel urges us to treat his case as a capital one because
the judge must decide, before any sentence is imposed, whether to
instruct on a lesser included offense. The imposition of a life
sentence, Creel contends, does not change the nature of the case
at the stage where the jury determines guilt. We reject Creel’s
characterizing an issue as one of “pure law,” which raises a new theory, differs from characterizing it as “plain error,” which alleges trial error to which there was no objection, but could be clearly resolved); cf. United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994) (en banc) (holding plain error review appropriate where the error was clear under current law at the time of trial).
-11- argument. The only circuit to treat these cases as capital
cases, as Creel urges, also performs a harmless-error analysis.
See Rembert v. Dugger, 842 F.2d 301, 303 (11th Cir. 1988)
(treating these cases as capital cases). In Rembert, because
“[t]he danger of an unwarranted death sentence ended when Rembert
was given life,” the court concluded that the constitutional
error was rendered harmless. Id. at 303. Creel received a life
sentence under a bifurcated sentencing scheme. Thus, even if we
were to consider the case a capital one, any error would be
harmless. See Wiggerfall v. Jones, 918 F.2d 1544, 1549-50 (11th
Cir. 1990) (explaining that when defendant receives life sentence
pursuant to bifurcated sentencing scheme, error in failing to
instruct on lesser included offense is harmless).
We hold that a case in which the death penalty is sought but
not imposed ultimately is classified as a noncapital case for the
purposes of a Beck analysis. “In a non-capital murder case, the
failure to give an instruction on a lesser included offense does
not raise a federal constitutional issue.” See Valles v.
Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); Alexander v.
McCotter, 775 F.2d 595, 601 (5th Cir. 1985)(holding lesser
included offense instruction is not a federal constitutional
matter in non-capital cases). The Texas Court of Appeals
concluded that the evidence did not support instruction on felony
murder. Absent a violation of the Constitution, we defer to the
-12- state court interpretation of its law for whether a lesser-
included-offense instruction is warranted. See Valles, 835 F.2d
at 128.
III
Creel alleges that the state used perjured testimony when it
allowed Plangman to testify that she lacked knowledge of the
body’s location prior to when it was found. A state denies a
criminal defendant due process when it knowingly uses perjured
testimony at trial or allows untrue testimony to go uncorrected.
See Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763,
766, 31 L. Ed. 2d 104 (1972); Napue v. Illinois, 360 U.S. 264,
269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959). The
defendant must show that (1) the testimony was false, (2) the
state knew it was false, and (3) the testimony was material. See
Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993). This
test presents a mixed question of law and fact, and thus we
review the underlying facts for clear error and the conclusions
from the facts de novo. See Ornelas v. United States, 517 U.S.
690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996); United
States v. O’Keefe, 128 F.3d 885, 894 (5th Cir. 1997), cert.
denied, )) U.S. )), 118 S. Ct. 1525, 140 L. Ed. 2d 676 (1998).
Creel argues that Plangman testified falsely at trial that
she did not know the location of the body, and that the state
knew the falsity of the testimony. Cuellar’s police progress
-13- report, which Creel obtained after his conviction, is “hardly a
font of clarity or consistency,” as the district court
acknowledged. The report states: “She was asked if she knew
where the body was and she stated she had no idea where it might
be and she refused to tell. She further stated that she had
learned it’s [sic] location just recently by taking messages to
David Wolf from Lynn Creel who is in jail.” Creel argues that
the report evidences Plangman’s perjury, and that, on direct
examination at trial, prosecutors elicited testimony in which
Plangman denied knowing the body’s location prior to when the
police discovered the body.
The State responds that, even though Plangman testified
falsely, it did not knowingly use perjured testimony. Former
Bexar County Assistant District Attorney Raymond Fuchs, one of
the members of the prosecution team, testified at the federal
evidentiary hearing that they were concerned that Plangman was
not a credible witness. He found her explanation that a lucky
guess enabled her to direct Cuellar to the body almost
“preposterous” and “awfully peculiar.” Fuchs testified further
that, although Plangman was unresponsive to questions, he knew of
no evidence that she committed perjury at trial. Although there
is no evidence that the prosecutors in this case had seen
Cuellar’s report, Cuellar testified that he prepared the report
and placed it in his file. This serves to create constructive
-14- notice of the contents of the file. See United States v.
Miranne, 688 F.2d 980, 989 (5th Cir. 1982) (considering whether
notice, actual or constructive, of perjury could be attributed to
the government).
To find a violation of due process, however, the perjury
must have been material to Creel’s conviction. “The mere
possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the
trial, does not establish ‘materiality’ in the constitutional
sense.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S. Ct.
2392, 2400, 49 L. Ed. 2d 342 (1976)(emphasis added). Perjury is
material, and a new trial is required, if “‘there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.’” Kirkpatrick, 992 F.2d at 497
(citing Agurs, 427 U.S. at 103, 96 S. Ct. at 2397 (footnote
omitted))(emphasis added); Giglio, 405 U.S. at 154, 92 S. Ct. at
766.
Creel advances two principal reasons that Plangman’s perjury
was material. Creel alleges first that, if the perjury had been
disclosed, it would have affected Plangman’s credibility as a key
witness. Plangman’s testimony regarding whether she knew the
body’s location was not probative that Creel murdered Smith, and
there was no genuine dispute at trial about the circumstances
surrounding the discovery of the body. See United States v.
-15- Washington, 44 F.3d 1271, 1282 (5th Cir. 1995)(finding that
whether perjurious statements concern a completely collateral
matter unrelated to defendant’s guilt is important to
materiality). In addition, the jury had the opportunity to
observe Plangman and Cuellar while each was cross-examined
extensively. As the district court noted, “Plangman’s trial
testimony on this and many other points were internally
inconsistent, contradicted by the testimony of other prosecution
witnesses, and, in many instances, wholly unworthy of belief.”
The impeachment evidence would have been cumulative in nature and
the jury’s impression of Plangman’s credibility probably would
not have changed upon learning of the perjury. Further, the
testimony of many witnesses complements Plangman’s testimony
regarding the issue of Creel’s guilt. Martinez testified that
Creel asked him repeatedly for information on dissolving a human
corpse with acid. The state presented Creel’s letters to
Plangman. The Grahams testified that Creel stated he killed a
man and needed help disposing of the body. Woodley testified
that she set up the meeting with Smith pursuant to Creel’s
request. Goodnough testified that Creel sold him a ring similar
to Smith’s. Considering the independent evidence of Creel’s
guilt, we cannot say that the jury’s judgment would have been
affected had the defense possessed further evidence that could
have been used to impeach Plangman.
-16- Creel alleges second that the perjury was material because
disclosing the perjury could have convinced the jury that
Plangman was the murderer and that she lied to frame Creel.4
Creel suggests this theory best explains Plangman’s utterance of
“I did it” upon the discovery of the body. Based on Plangman’s
explanation that she made this utterance in shock, and the
substantial circumstantial evidence from the other witnesses,
there is not a reasonable likelihood that the jury would have
acquitted Creel, believing that Plangman committed the murder.
Further, if the jury believed the police report, then they would
believe merely that Plangman learned the body’s location from
Creel’s letters, and not that she framed Creel.
We find that there does not exist a reasonable likelihood
that Plangman’s perjury could have affected the judgment of the
jury. See Kirkpatrick, 992 F.2d at 497. Whether Plangman
actually knew of the body’s location is a collateral matter and
does not bear directly on Creel’s guilt. The state presented
substantial other circumstantial evidence that established
Creel’s guilt and that corroborated much of Plangman’s testimony.
The perjury is unlikely to have changed the jury’s impression of
4 We reject also Creel’s contention that we consider the perjury in light of what a skilled lawyer would have done with the evidence. See Agurs, 427 U.S. at 113 n.20, 96 S. Ct. at 2402 (rejecting standard of materiality that focuses on the impact that undisclosed evidence would have on defendant’s ability to prepare for trial).
-17- Plangman’s general tendency to veracity. We conclude that the
state’s knowing use of Plangman’s perjured testimony did not
violate due process because the testimony was not material to
Creel’s conviction.
IV
Creel contends that Plangman, acting as an agent of the
state, obtained incriminating information from Creel in violation
of his Sixth Amendment right to counsel. The district court
ruled that Plangman did not act as an agent of the state and that
it was not error to introduce information she had received from
Creel. We have yet to address the standard of review for
determining whether a person is an informant or agent under the
Sixth Amendment. Some courts consider the determination a
factual one. See United States v. Malik, 680 F.2d 1162, 1165
(7th Cir. 1982); United States v. Van Scoy, 654 F.2d 257, 260 (3d
Cir. 1981). Other courts review for clear error only the factual
determination of the relationship or understanding between the
police and informant. These courts review de novo whether the
relationship, as found by the district court, is such that the
informant’s questioning is considered government interrogation
for constitutional purposes.5 See United States v. Johnson, 4
5 The state habeas court made no factual findings on this issue, and so 28 U.S.C. § 2254(d) is inapplicable. Creel alleges the district court’s ruling on the claim is open to plenary review; however, we review the district court’s fact findings for clear error.
-18- F.3d 904, 910 (10th Cir. 1993); United States v. Surridge, 687
F.2d 250, 252 (8th Cir. 1982). We find it unnecessary to decide
which standard to apply because, regardless of which standard we
use, Plangman was not an agent of the government.
In Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct.
1199, 1203, 12 L. Ed. 2d 246 (1964), the Supreme Court held that
the accused has a Sixth Amendment right to be free of questioning
by an undisclosed government agent without counsel being present.
The Sixth Amendment is implicated whenever government agents
“deliberately elicit[]” incriminating statements after indictment
and in the absence of counsel. Id. To prove a Sixth Amendment
violation, Creel must prove (1) that Plangman was a government
agent, and (2) that Plangman “deliberately elicited”
incriminating statements from Creel.
Before we consider whether Plangman “deliberately elicited”
statements from Creel, we must find, apart from Plangman’s status
as an informant, that she acted as a government agent. See,
e.g., United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.
1986)(holding Sixth Amendment inapplicable to statements made to
informant who is not an agent). The district court created a
two-pronged test for determining whether an agency relationship
existed, requiring the defendant to show that the informant: (1)
was promised, reasonably led to believe, or actually received a
benefit in exchange for soliciting information from the
-19- defendant; and (2) acted pursuant to instructions from the State,
or otherwise submitted to the State’s control.
Creel objects to the test, asserting that each prong is
contrary to Supreme Court precedent. According to Creel, Maine
v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 487, 88 L. Ed. 2d
481 (1985), stands for the principle that, instead of requiring a
quid pro quo, the relevant determination should be whether the
State made an arrangement to obtain information from the accused
prior to when the informant contacted the accused. See id. at
176, 106 S. Ct. at 487 (“[I]t is clear that the State violated
Moulton’s Sixth Amendment right when it arranged to record
conversations.”). Creel’s reliance on Moulton is misplaced
because Moulton, which involved a clear case of agency, addressed
the different issue of whether the prohibition on using
undisclosed agents to “deliberately elicit” information extended
to where the accused initiates contact with the agent. Creel
objects also to the second prong, which requires us to consider
whether the state controlled Plangman. Instead, citing to United
States v. Henry, 447 U.S. 264, 272 n.10, 100 S. Ct. 2183, 2187,
65 L. Ed. 2d 115 (1980), Creel argues that we should consider
whether Plangman “was charged with the task of obtaining
information from an accused.” Henry involved also a clear case
of agency, and the Court only considered if the agent were
“charged with the task of obtaining information from an accused”
-20- to determine whether the agent “deliberately elicited” the
information. Creel’s objections both fail for the same reason,
namely that the agency inquiry is precedent to and distinct from
determining whether an agent “deliberately elicits” information.
Having disposed of Creel’s specific objections to the test,
we address whether Plangman can be considered a government agent
under the first prong, a quid pro quo agreement. Plangman is a
State agent, Creel argues, because Plangman received benefits in
exchange for her aid to Cuellar. Specifically, the authorities
never prosecuted Plangman and, in exchange for Woodley’s name,
Plangman received Cuellar’s help in retrieving jewelry from Joan.
Creel presented no evidence, however, that anyone promised
Plangman not to pursue charges in exchange for her assistance or
testimony. The district court found further that no credible
evidence existed that Cuellar undertook to return the jewelry in
exchange for Plangman’s agreement to solicit incriminating
evidence. No credible testimony existed regarding when Plangman
first learned Woodley’s name or that she learned of Woodley from
Creel. The district court notes that Creel’s counsel stated in a
pretrial motion that Cuellar had secured information establishing
Woodley’s identity during a search a Creel’s residence.
Creel alleges Plangman received other benefits in exchange
for her assistance. Plangman testified at trial that she had
romantic liaisons with Cuellar. Cuellar denied the sexual
-21- involvement, and testified that Plangman told him that she had
fabricated the story. Plangman testified at trial that she
received conjugal visits with Creel in jail, as a result of
special leniency in visitation rules. Prison officials testified
that Plangman’s visits with Creel were supervised. Creel
admitted that his letters to Plangman contradict his testimony
regarding the dates on which he had sexual relations with
Plangman. The district court found the testimony regarding
Plangman’s involvement with Cuellar and the conjugal visits with
Creel to be “wholly incredible.”
The district court found no credible testimony or other
evidence that the government promised or gave Plangman a benefit
in exchange for soliciting statements from Creel. Creel
presented no evidence that Plangman’s motivation was anything
other than her desire to assist in locating the decedent’s body.
Thus, considering the evidence presented at the federal
evidentiary hearing, the district court’s factual finding on the
first prong, that Plangman was not promised and did not receive a
benefit, was not clearly erroneous.
We consider next whether Plangman is an agent under the
second prong, that is, whether Plangman acted pursuant to
instructions from the State, or otherwise submitted to the
State’s control. Creel argues that Cuellar began directing
Plangman when, in response to her offer to bring Creel’s van for
Cuellar to search, Cuellar told her that he would instead use her
-22- information to obtain a warrant to search Creel’s house. Creel
alleges that, on the day of Creel’s arrest, Cuellar asked
Plangman to go to Creel’s house to “see if [she] could find the .
. . jewelry” belonging to Smith. These incidents cannot be
considered Sixth Amendment violations because they occurred prior
to Creel’s arrest when he invoked his Sixth Amendment right to
counsel. See United States v. Howard, 991 F.2d 195, 201 (5th
Cir. 1993)(“No judicial proceeding had been initiated against
Howard, therefore, he had no right to counsel under the Sixth
Amendment.”).
Creel argues also that Plangman became an agent when she
helped Cuellar locate Smith’s body. Plangman testified that one
of her reasons for visiting Creel was to “help seek any
information to find the body.” Yet, the fact that Plangman
wanted to help the police to solve a murder case does not
necessarily make her an agent for Sixth Amendment purposes. See
Malik, 680 F.2d at 1165 (refusing to extend agency to individual
acting on own initiative); cf. Coolidge v. New Hampshire, 403
U.S. 443, 487, 91 S. Ct. 2022, 2048, 29 L. Ed. 2d 564 (1971)
(stating individual not an agent for Fourth Amendment if she
acted wholly on her own initiative). Plangman also said that an
officer told her that she “was the nearest one to [Creel], and if
anyone could get the information, [she] could.” The district
court found that this statement did not constitute direction by
-23- the government. The fact that Plangman learned of the body’s
location and disclosed it to the government in no way indicates
that the State directed or controlled her in learning of that
information. Thus, the finding of the district court, that no
credible testimony existed to establish that the government
directed Plangman, was not clearly erroneous.
On the facts of this case, Plangman was not a government
agent. Creel failed to meet the two-pronged test formulated by
the district court.6 Plangman did not receive, nor was she
promised, any benefits in exchange for eliciting information from
Creel. Plangman acted at her own discretion in her dealings with
Creel. In the absence of a quid pro quo between Plangman and
Cuellar, and in the absence of instruction or control by the
State, we hold that Plangman was not a government agent. Even if
Plangman had “deliberately elicited” incriminating information
from Creel, his right to counsel was not violated because she was
not an agent of the state. See Massiah, 377 U.S. at 206, 84 S.
Ct. at 1203.
V
Creel alleges that the district court should have extended
the federal evidentiary hearing to include his claim of actual
innocence based on newly discovered evidence. Irrespective of
6 We decline to address whether a defendant must prove both prongs of the test, because Creel failed to prove either prong.
-24- whether a case is capital or noncapital, we have reaffirmed that
newly discovered evidence of innocence, “absent an independent
constitutional violation occurring in the underlying state
criminal proceeding,” is not a ground for habeas relief. Jacobs
v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994)(quoting Herrera v.
Collins, 506 U.S. 390, 400, 113 S. Ct. 853, 860, 122 L. Ed. 2d
203 (1993)). The district court correctly denied Creel an
evidentiary hearing on this issue because Jacobs forecloses
Creel’s argument.
VI
Creel argues lastly that the district court erred in finding
that his trial lawyer Charles Conaway was not ineffective. In
order to prove ineffective assistance of counsel, Creel must show
that (1) Conaway’s representation “fell below an objective
standard of reasonableness” and (2) that the performance resulted
in actual prejudice. Strickland v. Washington, 466 U.S. 668,
689, 692, 104 S. Ct. 2052, 2055, 2067, 80 L. Ed. 2d 674 (1984).
Both prongs of the Strickland test present a mixed question of
law and fact. We review independently whether counsel’s
representation passes constitutional muster. We apply the §
2254(d) presumption of correctness to factual findings of the
state courts and review factual findings of the federal court for
clear error. See Mattheson v. King, 751 F.2d 1432, 1438 (5th
Cir. 1985).
-25- Creel contends first that Conaway rendered ineffective
assistance because he failed to raise a jurisdictional defect.
Medina County indicted Creel on kidnaping and robbery charges;
after the police discovered Smith’s body in Bexar County, Creel
was indicted and convicted of capital murder in Bexar County.
The Texas Code of Criminal Procedure provides that “[w]hen two or
more courts have concurrent jurisdiction of any criminal offense,
the court in which an indictment or a complaint shall first be
filed shall retain jurisdiction.” TEX. CODE CRIM. P. ANN. art.
4.16 (West 1977). Conaway failed to move to dismiss the Bexar
County proceedings on the ground of Medina County’s priority of
jurisdiction, which operated as a waiver of the jurisdictional
defect. See Reynosa v. Segall, 780 S.W.2d 884, 888 (Tex. Ct.
App.))El Paso 1989, no pet.)(“[T]he accused may file for and
insist on action by the originating court.”); Mills v. State, 742
S.W.2d 831, 835 (Tex. Ct. App.))Dallas 1987, no pet.)(“A
defendant who does not interpose a plea to the jurisdiction may
waive the right to question jurisdiction under article 4.16.”).
Creel argues that Conaway’s failure to move to dismiss
constituted ineffective assistance of counsel.
To determine whether Conaway provided ineffective
assistance, we must decide whether the jurisdictional waiver was
prejudicial. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069
(“If it is easier to dispose of an effectiveness claim on the
-26- ground of lack of sufficient prejudice . . . that course should
be followed.”). To prove prejudice, Creel must show that (1)
there is a reasonable probability that, but for counsel’s errors,
the ultimate result of the proceeding would have been different,
see id. at 694, 104 S. Ct. at 2068, and (2) that counsel’s
deficient performance rendered the trial fundamentally unfair,
see Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844,
122 L. Ed. 2d 180 (1993).
Conaway’s failure to move to dismiss could not have affected
the proceedings because the charges in Medina and Bexar County
were not for the same offense, which renders Article 4.16
inapplicable. Creel argues that the kidnaping and robbery
charges should be considered lesser charges of the capital murder
charge, and that double jeopardy would have barred his capital
prosecution in Bexar County under Article 4.16. Texas courts
interpret the statute differently:
[W]e are not here dealing with a question of double jeopardy . . . . Article 4.16 refers to courts having concurrent jurisdiction ‘of any criminal offense’ as opposed to jurisdiction of the transaction out of which several offenses may develop.
Flores v. Texas, 487 S.W.2d 122, 126 (Tex. Crim. App. 1972). We
defer to this interpretation of the statute. See Weeks v. Scott,
55 F.3d 1059, 1063 (5th Cir. 1995)(“[W]e defer to the state
court’s interpretation of the Texas . . . statute.”). Conaway
could not have succeeded in a motion to dismiss under Article
-27- 4.16, because kidnaping and robbery are different offenses than
capital murder. Thus, we find that Creel has not shown that, had
Conaway moved to dismiss, the proceedings would have been
different or that, absent that motion, his trial was
fundamentally unfair.
Creel alleges that Conaway’s failure to investigate evidence
of Creel’s innocence also rendered his assistance ineffective.
He cites Conaway’s failure to investigate the bankruptcy of a
company owned by Smith. When Creel investigated the company
later,7 he discovered evidence indicating that someone had signed
Smith’s name to a truck title while Creel was incarcerated.
Creel argues that the evidence proves his innocence because it
proves that Smith was killed while Creel was in jail. The
evidence does not establish, however, that Smith personally
signed the truck title on that date. Creel has not shown how
investigating Smith’s bankruptcy would have benefitted his
defense, because the evidence does not exculpate him. See United
States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)(stating
defendant must prove how investigation would have altered outcome
of trial). Moreover, the facts at trial point overwhelmingly to
Creel’s guilt, so that even the most competent attorney would be
7 Creel has explained that, while in jail, he located a San Antonio Police Department report pertaining to a theft of one of Smith's business vehicles. This led Creel to seek a certified Texas title history of the truck.
-28- unlikely to have obtained an acquittal. See Wilkerson v.
Whitley, 16 F.3d 64, 68 (5th Cir. 1994)(stating ineffectiveness
claim fails if most competent attorney could not obtain acquittal
due to abundance of evidence).
We cannot say the attorney rendered ineffective assistance.
Creel has not proven the objective unreasonableness of Conaway’s
actions or that they prejudiced him. The district court
correctly denied Creel’s claim.
VII
We AFFIRM all rulings of the district court.
-29-