Executed August 15, 2007 06:20 p.m. CST by Lethal Injection in Texas
33rd murderer executed in U.S. in 2007
1090th murderer executed in U.S. since 1976
20th murderer executed in Texas in 2007
399th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
B / M / 18 - 27
|Linda “Suzie” Malek
W / F / 28
Parr v. Quarterman, 472 F.3d 245 (5th Cir. 2006) (Habeas).
"I just want to tell my family I love y'all, man. Keep your head up, y'all."
Texas Department of Criminal Justice - Executed Offenders (Kenneth Parr)Inmate: Parr, Kenneth
Texas Attorney General
Thursday, August 9, 2007
Media Advisory: Kenneth Parr scheduled for execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information on Kenneth Parr, who is scheduled to be executed after 6 p.m. Wednesday, August 15, 2007. Parr was sentenced to death for capital murder for the rape and robbery of Linda “Suzie” Malek. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
On the evening of January 20, 1998, Charlotte Brown talked on the phone to her 28-year-old daughter, Linda “Suzie” Malek and made plans to visit with her and her two children, 8-year-old Ashley and six-year-old Zachary the following day at Charlotte’s home. The phone conversation was last time Charlotte heard her daughter’s voice.
At about 2 a.m. the next day, Charlotte and her husband, Mike, received a call from Ashley who stated that two men had broken into their house. On the way over to her daughter’s house, Charlotte used her cell phone to call Ashley. Charlotte asked her, “Is Mommy all right?” “No,” Ashley told her, “they shot her.” Ashley also said her mother was not talking.
The first thing Charlotte and Mike noticed as they approached Suzie’s home was Suzie’s car blocking the driveway. Mike testified he knew then, “that wasn’t normal.” Mike also said that the living room was a mess. Papers were scattered in front of the sofa and the entertainment center, and the television was missing. The children’s Sega Saturn game was also missing from its usual place in the entertainment center. The VCR was gone, too. In addition, much of Suzie’s jewelry was missing, along with her purse and the keys to her car.
Charlotte and Mike found Suzie lying face-down on the floor in her bedroom. Ashley recounted the crime for her grandparents. She said she had her eyes closed and was holding her mother’s hand. “She was squeezing it so tight it hurt. . . . Mommy was begging them not to shoot her. . . . And they shot her twice.”
Ashley took the stand at Kenenth Parr’s trial to tell the jury in her own words what she remembered of that horrific night. She, her mother, and Zachary had gone to bed that night after watching David Letterman. Later, Ashley was awakened by her mother’s screaming, “Oh my God. Help me.” Ashley said they were all terrified. Two men, one short and one tall, wearing mask-like bandanas were standing in the doorway to the bedroom. According to Ashley, one of them had a gun. Ashley said they were told to get on the floor. “They said to keep your faces to the floor because they didn’t want us to see.”
Ashley said that as the three of them lay on the floor crying, the two men called her mother dirty names. They asked her if she had a gun. When she said no, they told her that “if they found one, she was dead.” The two men also wanted to know if Suzie had a jewelry box; she had two. Suzie told them where her jewelry was. Ashley then described the rape her mother was forced to endure.
Finally, the men shot Suzie twice in the head. Ashley recalled one of the men asking her where the keys to her mother’s car were. She told them, and they left. One then came back and asked her how to start the car; it had a standard transmission. Ashley explained that the clutch would have to be pushed in. The assailant left, threatening to come back. After thirty minutes, and still afraid the men would return, Ashley called her grandmother and told Mike what had happened. When her grandmother asked if they had tried to wake their mother up, Ashley told her no “[b]ecause I knew that she was gone.”
Much of the property that was stolen from Suzie’s home was recovered from the apartment of Monica Silva, Parr’s girlfriend. The apartment complex she lived in was across the street from Suzie’s home. Some of the evidence, including Suzie’s purse, was recovered from a dumpster outside Silva’s apartment.
Finally, Parr confessed to the burglary of Suzie’s home. In the early morning hours after the murder, Parr was at Silva’s apartment. He told her he “had really messed up this time.” He said that “he had gone into a place and burglarized this place. This time he had gone in with a gun.” Michael Jiminez, Parr’s brother and accomplice in the burglary, rape, and murder confessed too. He said, “Me and Kenny did that. . . . We’re the ones who killed that lady.” Jiminez also said that the robbery had been planned. “They were going to kick down the door and go in there. They were sitting outside talking about what they were going to do before they went and did it.” Jiminez said he and Parr shot Suzie twice in the head. Finally, Jiminez said, “We were going to kill the kids, but the gun messed up.”
April 15, 1998 — A Matagorda County grand jury indicted Parr for capital murder.
April 12, 1999 — A jury found Parr guilty of capital murder and following a separate punishment hearing, the court assessed a sentence of death.
March 7, 2001 — Parr’s conviction and death sentence were affirmed by the Texas Court of Criminal Appeals. Parr did not seek appeal to the U.S. Supreme Court.
December 5, 2000 — Parr filed a state application for writ of habeas corpus.
November 13, 2002 — The Texas Court of Criminal Appeals denied habeas relief.
November 13, 2003 — Parr filed a federal petition for writ of habeas corpus.
July 27, 2004 — The federal district court denied habeas relief on all claims.
December 7, 2006 — The 5th Circuit Court of Appeals affirmed the district court’s denial of habeas relief.
March 7, 2007 — Parr sought certiorari review in the U.S. Supreme Court.
June 18, 2007 — The Supreme Court denied certiorari review.
December 20, 2006— The trial court set execution date for August 15, 2007.
PRIOR CRIMINAL HISTORY
Parr’s extensive criminal history includes convictions for burglary of a habitation and assault. Parr was on parole at the time of the capital murder. He also has a history of domestic abuse.
"Texas inmate executed for rape-slaying during home robbery," by Michael Graczyk. Associated Press Aug. 16, 2007, 12:56AM)
HUNTSVILLE, Texas — Condemned inmate Kenneth Parr failed to follow through on threats to harm Texas corrections officials and quietly went to his death for the rape and fatal shooting of a woman during a break-in at her Southeast Texas home nearly 10 years ago.
Parr, 27, had only a brief final statement Wednesday evening as he received a lethal dose of drugs, responding "Yeah" when asked by the warden if he had anything to say. "I just want to tell my family I love y'all, man," he said. "Keep your head up, y'all."
Nine minutes later, he was pronounced dead. Several distraught relatives, including his mother, were overcome with grief as they watched him die and sobbed uncontrollably. On another separate side of the chamber, relatives of his victim, including her mother, watched quietly through a window. Parr never looked at them.
His threats of violence also never materialized. "From all accounts, he was not a problem, not aggressive or assaultive with the staff," Texas Department of Criminal Justice spokeswoman Michelle Lyons said. "He made his way willingly to the execution chamber. We're very fortunate."
Parr was only a few days past his 18th birthday when authorities said he and a younger brother kicked in the door of 30-year-old Linda Malek's trailer home, stole a television and VCR and video game, among other things, raped the woman and then shot her to death. Her children — 8 and 6 years old at the time — were in bed with her during the attack.
The execution was the 20th this year in Texas, the nation's busiest death penalty state, and the 399th overall since Texas resumed carrying out capital punishment in 1982. The 400th is set for next week.
The last appeals to block the execution were rejected by the U.S. Supreme Court about two hours before he died.
Parr already was on probation after juvenile burglary and assault convictions when he was arrested for the Malek slaying. The woman and her children lived across the street from the apartment where Parr and his brother were staying with a friend. After convicted of her murder and sent to death row, prison records show he continued to pile up disciplinary infractions. In the weeks preceding his execution, officials took the rare step of putting him off-limits for media interviews because he had threatened to harm prison officers.
Steven Reis, the Matagorda County district attorney who prosecuted Parr, said that was no surprise. "His history of violence is clearly part of the reason the jurors chose to answer the capital murder questions as they did," he said. "They were certain that he posed a danger to anyone with whom he would come into contact."
The Jan. 21, 1998, slaying was the only homicide that year in Matagorda County, about 100 miles southwest of Houston. The timing — just days after Parr's 18th birthday — is significant because the U.S. Supreme Court has barred execution for those convicted of crimes committed when under 18. Parr's lawyers raised the age issue in earlier appeals but lost.
Parr's younger half-brother, Michael Jiminez, also was convicted in the case and is serving a life sentence. He was 17 at the time. At his trial, evidence shows he wrote a rap song about killing Malek and how he planned to kill again. "That was pretty devastating," Stan McGee, one of his trial lawyers, recalled.
Some of the items taken from Malek's home were found in the apartment where Parr and his brother were staying. Their fingerprints were found at the murder scene. DNA tied Parr to the rape. The murder weapon was hidden in an air conditioning vent at the apartment.
After the intruders left, Malek's 8-year-old daughter called her grandparents to report the attack. She later would testify at Parr's capital murder trial.
According to another witness' testimony, Jiminez and Parr, who did not testify, also planned to kill the children but the rusty gun wouldn't work. "I thank God for having intervened by causing a rifle to jam before those two murderers could kill two helpless children," Reis said.
The next Texas inmate scheduled to die is Johnny Ray Conner, facing injection next week for the shooting death of Houston grocery store owner Kathyanna Nguyen during an attempted holdup in 1998.
"Texas executes man for 1998 rape, murder." (Wed Aug 15, 2007 8:45PM EDT)
HUNTSVILLE, Texas (Reuters) - Texas on Wednesday put to death by lethal injection a convicted murderer and rapist who had threatened to harm prison officials in the weeks leading up to his execution.
Kenneth Parr, 27, was the 20th man executed in Texas this year and the 399th since the state resumed the practice in 1982 after the U.S. Supreme Court lifted a moratorium.
Parr, who had just turned 18 at the time of the crime, first threatened to harm female prison staff members and then broadened his threats to include others working at the facility, said Michelle Lyons, a spokeswoman for Texas Department of Criminal Justice. But Parr went to the death chamber without incident, she said.
According to prosecutors, in 1998 Parr and another man robbed, raped and shot to death 30-year-old Linda Malek in Bay City, 90 miles southwest of Houston. Parr and the other man, who were masked and armed with handguns, burst into Malek's home and sexually assaulted her before shooting her once in the head. Her two small children were at home at the time of the attack.
Because of the threats Parr had made to prison staff, Texas took the rare step of banning him from conducting death-row media interviews. Parr made no request for a last meal.
In his last statement, he sent his love to his family. His mother and sister were witnesses at the execution. "Can y'all hear me? Tell my family that I love y'all," Parr said.
Parr's execution was the first of five scheduled this month in Texas, the nation's leading death penalty state.
"When a stupid man is doing something wrong and he is ashamed for it, he always declares that it is his duty." With the onslaught of killings in Texas this seems to be the only answer we can find to match with the state´s actions. Due to the horrendous acts being carried out by this state, we as Supporters/Abolitionist and Activist have had to step up our Fight against this unjust system.
Consciousness is ariving slowly but surely and on this path we must continue. Our truths (facts) have become our light. And in light, even though it passes through pollution, is NOT polluted. More and more in these days it´s getting easier and easier for the Death Penalty to be handed out. No matter if the lack of evidence, motive or witnesses has it made a difference in the twisted Due Process they claim its citizens have.
Most people of the world are not even Enlightened to the Universal Declaration of Human Rights passed in 1948 by the United Nations our Country is part of. This Declaration proclaims each person´s right to 1. Protection from "Deprivation" of life, and 2. it categorically states that no one shall be subjected to cruel or degrading punishment.
The Death Penalty - the Pre-meditated and cold - blooded killing of prisoners in state custody violates both of these rights. But, why has our society continued to applaud and uphold this acts ? People of the Public, YOU cannot be afraid of the facts. We must face what we have allowed to be made in our country. We as activist have discovered a very unjust case and in this case we´ve found blatant violations of any Semblence on Justice. We are making a plea on the behalf of Kenneth Parr, because 1. We believe he is an innocent man, 2. We believe he did not have a fair trial and 3. he has more evidence to be heard. True, the law says No man is promised a "Perfect" trial only a fair one. But, is having incompetent lawyers who purposely work against their clients fair ? NO ! And this is only in part what Kenneth Parr has faced.
Kenneth Parr is a poor, young black man. At 20 years old he´s one of the youngest men on death row. Kenneth has no family or friend support and do to this vile conditions we feel he needs tremendous help.
As a youngster he was seperated from his parents and went home to home. His mother was unstable and in and out of prison and at a young age he found out his father had died. Kenneth rebelled ! Yes, he rebelled from abusive households, deprived surroundings and on his own slept on the streets at time even as he pursued to go to school on his own.
We Undoubtedly know that Knowledge of his past by Law officials bolstered his arrest. Kenneth would like to get his case known to the public. He would like to offer his facts to any of those who would want to help. His purpose is not to conceal, but to reveal, but we need you, "The Public", to aid and assist us and stand by US.
Facts say approximately 74 men haven been exonerated and freed from death row over the past 25 years. Although, this sounds good, over 20 men have been executed and then found to be innocent later. This figure is causing so many to question Capital Punishment - as it should be. There´s even more concern mistaken convictions will occur as record numbers of inmates fill death rows, pressure builds for speedy executions and fewer attorneys defend prisoners facing executions. We must prevent this in Kenneth Parr´s case. His arrest has been prompted by misguided information and unheard facts. People of the Public must seriously and earnestly as, "Is that true ?" For truth does not change; if truth were to change, truth would not be truth.
We need public, awareness ladies and gentlemen. How can you get informed to Kennth Parr´s case ? Simply, write to him. Kenneth is trying to reach out to people not only insights of his case, but for fellow companionship and to explore his continued thoughts. The unit he is on (Terrell) has all the inmates und inhumane conditions and many groups are fighting against the conditions.
Access to things can be granted to these inmates, but much hatred is being instilled upon them. As you read this dissertation think hard about what is fair and cruel. Give Kenneth a change at Life and the Life he has been deceitfully cheated of. An old sage says, "It is easier to "Perceive" error than to find truth, for the former lies on the surface and is easily seen, while the latter lies in the depth, where few are willing to search for it."
Maybe we´ve found OUR answer to why people turn their backs. But we will stay Diligently on Kenneth´s side and ALL the others on death row. We leave this plea in your hands, we pray for your support.
In the Plight for Justice you can contact Kenneth at:
12002 FM 350 South
Livingston, Texas 77351 USA
In continuation we leave a small article written by Kenneth Parr himself:
"A DAY IN A THOUGHT"
"The rich get richer and the poor get poorer." Sounds like a clichč movie scene or a line from a book doesn´t it ! Well today it´s not. These were one of the last statements my own court appointed attorney said to me as I was given the Death Sentence. I don´t think I felt the same since. I´ve only ever read one accomulation of words that automatically made me relive the day, the day of how bitter, sour and sick my stomach turned at that was Revelations 10: 8-10. This would be the beginning of my Reality Check, but would not be my last ! Now at 20 years old (one of the youngest as you know) I sit among a valley of Death, but it is now Death Row that has become my teacher and listener.
Death Row - it´s a very hollow word to me. It´s a word that I´ve only come to relate to as violent, but in Reality we all know its # 1 relation is Revenge. Just the word itself weighs heavy on the Human mind and I will not deny that it is TORMENT to my mind. They say, "Prison is what you make it to be," now we couldn´t just turn this into a Caribbean cruise or a picnic now could we ? NO ! My world is filled with descriptions that have seldomly been capturd in words. So, my journey is to gain a new Consciousness.
"The mind is of dealiest foes, but the most usefull of servants. When it turns wild and gets out of control, it heads for certain destruction. When properly awakened and controlled, there is no limit to what it can do."
It seems like everday Texas gladly kills someone. In a "so-called" Christian Country. It´s hard to fathom how men do this in the name of God. Then they wonder why it´s so hard for the up and coming youths to embrace and accept the "religion" they teach.
As I contemplate my surroundings I see men whose been here Longer than I´ve been alive. Such thoughts begin to take a toll in my life. - Why and/or How ? Well, at the same time I can sit up and have a conversation with a man one night, and the next night he has been "pushed" off this EARTH, thus toll is: - What´s Life and Death ? - Are my thoughts my enemy ? - Can I build strength from my thoughts ? - How can I continue to reach for goals looking at the things I see ?
In a way of speaking, thought makes giants out of dwarfs and often turns giants into dwarfs. History is filled with accounts of how thought has made weak men strong and strong men weak, and I see evidence of its workings around me constantly.
I cannot come to you as a perfect man of a perfect past and I will no longer use the excuse of I´m not perfect. In every situation and culture we must stop using excuses for our failures and find solutions.
I am in the process of suffering grave Misjustices. From a wrongful and mistaken conviction, to blatant conspiracies to keep me from fighting my case by the courts, to a case of admitted guilt by another man, but because the state of Texas would prefer to kill a man than show they were wrong, my pleas will be sought to be silenced by any means they can provide. I want my voice to be heard and I will fight diligently for this. In my own philosophy I say, "Sometimes the longest way around is the shortest way to the Light. And the darkest part of the night is right before the day break. But, the sun shines just a little brighter after the storm is all over."
My storm has just begun. As I look around at this madness I try to gain Peace and Understanding. I must speak out and attain help, but I can not do this on my own and can´t do it without our compassionate members of our society. Contact me if you will, allow me to share all my facts with you. In the struggle for liberation I will say, DO NOT LET ME BE A VOICE UNHEARD !
Texas Execution Information Center by David Carson.
Kenneth Parr, 27, was executed by lethal injection on 15 August 2007 in Huntsville, Texas for the rape and murder of a woman during a home invasion robbery.
On 21 January 1998 around midnight, two men burst into Linda "Suzie" Malek's Bay City trailer home through the front door. Armed with handguns and hiding their faces with bandannas, the men entered Malek's bedroom. Malek's screams awoke her children, 8-year-old Ashley and 6-year-old Zachary. According to Ashley's subsequent testimony, Malek and the children were ordered to lie face down on the ground. The men asked her whether she had a gun, and she said no. They then asked where her jewelry box was, and she told them. They then raped her and shot her twice in the head. They then ransacked the home, looking for valuables, and asked Ashley where her mother's car keys were. She told them, and they left. They were unable to operate the car's manual transmission, however, and one of them returned after a few minutes to ask Ashley how to start the car. She told them to hold in the clutch, and they went back outside. Still unable to start the car, they fled on foot, carrying the victim's purse, jewelry, and some electronic items including a VCR and a video game console.
Fearing that the men were still around and would come back, Ashley waited about thirty minutes before calling for help. She called her grandparents, Mike and Charlotte Brown, at about 2:00 a.m. She informed them that two men wearing bandannas - one short and one tall - had broken into their house and shot her mother. She told them that her mother was not alright and was not talking. When the Browns arrived at the house, they found Malek's car askew in the driveway, observed that the house had been ransacked, and found their daughter's body lying face-down on the floor.
Police discovered Malek's purse in a dumpster at an apartment complex across the street. Their investigation led to Monica Silva, a resident of the apartments. Much of the property stolen from Malek's home was found in hidden in an air conditioning vent in Silva's apartment, as was the murder weapon - a rusty .22-caliber rifle. Silva said that her boyfriend, Kenneth Parr, then 18, and his brother, Michael Jiminez, 17, had left those things there.
At Parr's trial, Silva testified that on the morning of the murder, she returned to her apartment to find Parr and Jiminez there. Jiminez was holding a jewelry box. Parr told her that they had used a gun to commit a burglary. She then took Parr to his mother's house. Parr informed her that he had hidden some items in her apartment. She found Malek's purse in a bag of trash.
Silva also testified that Parr and Jiminez admitted to planning the robbery and committing the murder. She testified that Jiminez said, "We were going to kill the kids, but the gun messed up." Parr's mother also testified that he told her he shot someone.
A resident of Silva's apartment complex testified that she heard two gunshots on the night of the murder. Twenty minutes later, she heard two men arguing outside her window. She said the men were carrying a television and appeared to be Latino or African-American. Another resident testified that she saw and heard two men who she recognized as Kenneth Parr and Michael Jiminez talking.
The state also presented DNA evidence left on the victim's body from the rape. Parr, who was on parole at the time of the murder, did not testify. The Texas Attorney General's Office issued a press release stating that Parr confessed to the murder, but this apparently referred to incriminating statements attributed to him in other witnesses' testimonies.
Because of the publicity surrounding the murder in Brazoria County, the trial was moved to neighboring Matagorda County. A jury convicted Parr of capital murder in April 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in March 2001. His subsequent appeals in state and federal court were denied. Michael Wayne Jiminez was convicted of murder and sentenced to life in prison. According to several anti-death-penalty web sites, Parr denied having any involvement in the murder.
While on death row, Parr accumulated a lengthy disciplinary record, including an incident where he attacked a female corrections officer and threw her down a flight of stairs. According to Texas Department of Criminal Justice spokeswoman Michelle Lyons, Parr also made repeated threats to rape female prison employees before his death. Because of these threats, prison officials took the rare step of denying Parr visits from the news media the week before his execution. "He made threats against our staff, and it was determined that it was simply too dangerous to allow him out of his cell," Lyons said. "He's been adamant that he would like to harm staff members before he's executed."
Despite the threats, Parr's transport to Huntsville and the preparations for his execution were uneventful. Suzie Malek's parents and aunt attended the execution, as did Parr's mother, Mary Cologne; his brother, Joe Williams; and other relatives. In a brief last statement, Parr expressed love to his relatives. The lethal injection was then started. Cologne banged on the glass while Williams fell to the floor, sobbing. Parr was pronounced dead at 6:20 p.m.
On January 21, 1998, Linda Susan Malek died as a result of gunshot wounds to the head.
Around two o’clock that morning, Suzie’s mother and her stepfather received a call from Suzie’s daughter, Ashley, informing them that two men had broken into their home and shot Suzie. The Browns drove to Suzie’s home and discovered that several items were missing including a television, a VCR, a video game console, jewelry, and Suzie’s car keys. Suzie’s daughter and son, Zachary, were both present when their mother was killed.
According to Ashley, the two masked men burst into the home through the front door. They ordered Suzie and her children to lie face down on the floor. Suzie was crying and begged them not to shoot her. The evidence indicated that Suzie was sexually assaulted. They then ransacked the home before fleeing the residence with Suzie's car keys. Parr returned and asked one of the children how to operate the car. When they were unable to start the car, they fled on foot.
Evidence presented at trial revealed that on the morning of the murder, Kenneth Parr’s girlfriend returned to her apartment and found Parr and his brother, Michael Jimenez, there; Jimenez was holding a jewelry box. Parr told his girlfriend that he had gone somewhere with a gun and committed burglary. Parr then packed up most of his belongings and his girlfriend took him to his mother’s house. Parr later informed his girlfriend that he had hidden some items in the air-conditioning vent at her apartment. When she returned home, she found a VCR, a video game console, a gun, and a jewelry box. While she was taking out her trash, the bag fell open and a purse that contained Suzie Malek’s driver’s license fell out.
A resident of the apartment complex testified that she heard two gunshots on the night of the murder. Twenty minutes later, she heard two men arguing outside her window and when she looked outside her window she saw two young men who appeared to be Latino or African-American. Both men were carrying a television. Another resident of the apartment complex also testified that she saw and heard two young men talking and recognized the men as Kenneth Parr and Michael Jimenez.
Parr was on parole from the Texas Youth Commission ("TYC") at the time of the murder. At his trial, evidence showed that he wrote a rap song about killing Suzie Malek and how he was planning to murder again. A witness testified Jiminez told her he and Parr shot Suzie Malek and planned to kill the children but the rusty gun jammed. The brothers' fingerprints were found at the murder scene and DNA tied Parr to the rape.
Steven Reis, the Matagorda County district attorney who prosecuted Parr, said the prisoner's history since being locked up was no surprise and shows jurors were correct to give him a death sentence. "He is the clearest example of how even death row inmates are dangerous," Reis said. "Many people suggest that once a defendant is incarcerated for life, they pose no danger to society. This misleading statement presumes that the people who work within the prisons are not members of society, which is preposterous. Those people are at risk from the likes of Parr."
National Coalition to Abolish the Death Penalty
Kenneth Parr, August 15, Texas
LDo Not Execute Kenneth Parr!
The state of Texas is scheduled to execute Kenneth Parr on August 15, 2007, for the January 1998 murder of Linda Susan Malek.
Texas should not execute Parr for his role in this crime. Executing Parr would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Parr maintains his innocence, as verified in a document written by a witness to the crime, which states that Parr was not present during the crime.
Please write to Gov. Rick Perry on behalf of Kenneth Parr!
Parr v. Quarterman, 472 F.3d 245 (5th Cir. 2006) (Habeas)
Background: Following his capital murder conviction and sentence of death, and denial of his application for state habeas relief, state prisoner petitioned for federal habeas relief. The United States District Court for the Southern District of Texas, Samuel B. Kent, J., denied the request for habeas relief, but granted a certificate of appealability (COA) on 17 issues. Prisoner appealed and requested a COA on one issue not raised before the district court.
Holdings: The Court of Appeals, Carl E. Stewart, Circuit Judge, held that:
(1) collateral estoppel did not bar prisoner's prosecution;
(2) state habeas court's conclusion that prosecutor's handwritten note was immaterial was not an unreasonable application of Brady;
(3) state habeas court's conclusion that prosecutor's failure to disclose alleged police coercion of witness did not violate Brady was not unreasonable;
(4) prosecutor's failure to disclose relationship between prosecution and parole officer did not violate Brady;
(5) trial counsel's presentation of mitigating evidence at punishment phase did not render his assistance ineffective;
(6) state habeas court's failure to consider evidence that jury improperly considered the issue of parole did not warrant habeas relief;
(7) district court correctly denied relief on claim concerning trial court's failure to instruct jury that prisoner would have to serve 40 years before being eligible for parole;
(8) district court did not err in denying relief on claim that parole officer's testimony misled jurors regarding the time prisoner would serve before becoming eligible for parole;
(9) witness's statement referring to prisoner's interview was not a comment on prisoner's post-arrest silence in violation of his due process rights;
(10) prisoner's due process rights were not violated by introduction of a booking photo of prisoner's brother/co-defendant; and
(11) prisoner would not be granted a COA on the issue of whether his death sentence, for a crime committed when he was 18 months and four days old, violated his Eighth Amendment rights against cruel and unusual punishment. Denial of habeas relief affirmed; request for COA denied.
CARL E. STEWART, Circuit Judge:
Kenneth Parr appeals from the district court's denial of habeas relief and he also requests a certificate of appealability (“COA”) from this court. Parr was convicted and sentenced to death for the 1998 murder of Linda Malek. Parr petitioned for federal habeas relief challenging his conviction and sentence. The district court denied Parr's request for habeas relief, but granted a COA on seventeen issues. Parr requests a COA on one issue not raised before the district court. For the following reasons, we affirm the district court's denial of habeas relief and deny Parr's request for a COA.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 21, 1998, Linda Malek died as a result of gunshot wounds to the head. Around two o'clock that morning, Malek's mother, Charlotte Brown, and her stepfather, Mike Brown, received a call from Malek's daughter, Ashley, informing them that two men had broken into their home and shot Malek. The Browns drove to Malek's home and discovered that several items were missing including, inter alia, a television, a VCR, a video game console, jewelry, and Malek's car keys. Malek's daughter and son, Zachary, were both present when their mother was killed. According to Ashley, the two men ordered Malek and her children to lie face down on the floor. Malek was crying and begged them not to shoot her. The evidence indicated that Malek was sexually assaulted.
Evidence presented at trial revealed that the morning of the murder Parr's girlfriend, Monica Silva, returned to her apartment and found Parr and his brother, Michael Jimenez, there; Jimenez was holding a jewelry box. Parr told Silva that he had gone somewhere with a gun and committed burglary. Parr then packed up most of his belongings and Silva took him to his mother's house. Parr later informed Silva that he had hidden some items in the air-conditioning vent at her apartment. When Silva returned home, she found a VCR, a video game console, a gun, and a jewelry box. While Silva was taking out her trash, the bag fell open and a purse that contained Malek's driver's license fell out.
A resident of Silva's apartment complex testified that she heard two gunshots on the night of the murder. Twenty minutes later, she heard two men arguing outside her window and when she looked outside her window she saw two young men who appeared to be Latino or African-American. Both men were carrying a television. Another resident of the apartment complex also testified that she saw and heard two young men talking and recognized the men as Kenneth Parr and Michael Jimenez.
In May 1999, Parr was convicted of one count of capital murder for the murder of Linda Malek and was sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Parr v. State, No. 73,497 (Tex.Crim.App. March 7, 2001) (unpublished opinion). During the pendency of his direct appeal, Parr filed an application for habeas relief in state court; the Texas Court of Criminal Appeals denied his application. Ex parte Parr, No. 48,257-01 (Tex.Crim.App. November 13, 2002) (unpublished order). Parr filed a petition for habeas relief in the federal district court on January 27, 2004.
Parr asserted twenty-eight separate grounds for review, which the district court then combined into seventeen claims. The court granted summary judgment to the State on each of the seventeen grounds, but granted Parr a COA as to each ground as well.
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Parr argues that his conviction was not based on proof beyond a reasonable doubt and that he is actually innocent. The district court concluded that both of these claims are procedurally barred. A fundamental prerequisite to federal habeas relief is the exhaustion of all claims in state court prior to requesting federal collateral relief. Smith v. Dretke, 422 F.3d 269, 275 (5th Cir.2005) (citing Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). “The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.” Id. (citing Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Additionally, the Supreme Court has held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Accordingly, Parr “must first raise a substantial doubt about his guilt, which would then cause us to examine any barred constitutional claims.” Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir.2000).
Parr's arguments in support of his innocence are that there were no eyewitnesses placing him at the scene, there was no evidence showing when DNA evidence was placed on Malek's body, and the bruises on Malek's arms and face occurred twelve to eighteen hours before her death.FN1 All of the facts to which Parr points were available for the jury to consider. Additionally, the jury could convict Parr of capital murder either as a principal, or as an accomplice, based on the commission of murder in the course of either burglary, or aggravated sexual assault. Viewing the facts in a light most favorable to the prosecution, we conclude a reasonable juror could have reached the conclusion that Parr committed rape and/or burglary, and murder. See Neville v. Dretke, 423 F.3d 474, 481 (5th Cir.2005). Therefore, Parr has not raised a substantial doubt about his guilt. Parr concedes that he did not present these claims to the state court on direct appeal or in state habeas proceedings; accordingly, the district court correctly concluded that these claims are procedurally barred.
FN1. The medical examiner actually testified he could not be more specific than twelve to eighteen hours, but that it could have been less than that; indeed, he stated that twelve to eighteen hours was actually the maximum time.
Parr also argues that the admission of hearsay statements made by Michael Jimenez to Maria Cervantes violated the Confrontation Clause. Parr did not object to the admission of these statements on Confrontation Clause grounds during the trial. On direct appeal, Parr argued that admission of Jimenez's statement violated the Confrontation Clause, but the state court determined that Parr failed to preserve any constitutional error. “ ‘This Circuit has held that the Texas contemporaneous objection rule is strictly or regularly applied evenhandedly to the vast majority of similar claims, and is therefore an adequate procedural bar.’ ” Dowthitt, 230 F.3d at 752 (quoting Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.1998)). We are precluded from granting habeas relief where the last state court to consider the claim expressly and unambiguously based its denial of relief on an independent and adequate state-law procedural ground. Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir.2003). Parr also failed to present his Confrontation Clause claim to the state habeas court. Thus, the district court correctly held that these claims are procedurally barred.FN2
FN2. Even if this claim were not procedurally barred, both of the statements were nontestimonial and admissible under state law pursuant to exceptions to the hearsay rule. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law....”). Jimenez's statement was admissible as a statement against interest under Texas Rule of Evidence 803(24).
Parr asserts that the trial court erred (1) in denying his Batson challenge to the State's peremptory challenge of venire member Monique Gadson; (2) in admitting a letter allegedly written by Parr and sent to Monica Silva; (3) in admitting pictures of a pair of tennis shoes found at Parr's mother's house; (4) in denying Parr's motion to suppress evidence seized from the apartment that he shared with Silva; (5) in denying Parr's request for a jury instruction on accomplice witness testimony during the guilt/innocence phase of the trial; and (6) in admitting hearsay statements made by Malek's children to their grandmother in violation of the Confrontation Clause. Parr failed to address these arguments in his brief to this court, but instead refers us to the arguments set forth in his petition before the district court. By failing to argue these issues in the body of his brief, Parr has abandoned them. Fed. R.App. P. 28(a)(9); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Nevertheless, we have considered each of these claims and conclude that the state court's rejection of these claims was not unreasonable and the district court correctly denied relief.
C. We turn now to the eight remaining claims on which the district court granted a COA.
Parr argues that his conviction was obtained in violation of the Fifth Amendment under the doctrine of collateral estoppel. Parr was on parole from the Texas Youth Commission (“TYC”) at the time of the murder. After the murder, the state attempted to revoke Parr's parole based on his participation in the theft of Malek's television; however, at the revocation hearing, the examiner concluded there was insufficient evidence to prove that Parr was involved. Parr argues that the doctrine of collateral estoppel prevented the state from using the burglary as a predicate felony for the capital murder conviction. Parr contends that collateral estoppel is a constitutional bar to prosecution independent of the double jeopardy clause. We disagree. We have held that the double jeopardy clause does not extend to parole revocation proceedings. United States v. Whitney, 649 F.2d 296, 298 (5th Cir.June 1981). Further, we have previously rejected “attempts to erect a due process basis, independent of the double jeopardy clause, for the application of collateral estoppel.” Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir.1987). Accordingly “[i]f [Parr's] collateral estoppel claim is simply an effort to state a Double Jeopardy Clause claim, it fails.... If it is an effort to state an independent violation of the Fourteenth Amendment's Due Process Clause, it also fails.” Stringer v. Williams, 161 F.3d 259, 262-63 (5th Cir.1998). The district court correctly denied relief on this ground.
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Parr also contends that the police coerced his mother into making a second statement that was more damaging to the defense. According to Parr, in her second statement, his mother, Mary Saldierna, minimized evidence that Parr was intoxicated and stated that Parr told her that he shot a woman. At trial, Saldierna attributed the differences between her statements to her bad memory; however, at the state habeas proceedings, Saldierna averred that the police threatened her and offered her immunity if she changed her statement.
The state habeas court concluded that Saldierna was not coerced and that her affidavit testimony to the contrary was neither credible nor reliable. Parr has made no attempt to rebut the presumption of correctness. See Summers v. Dretke, 431 F.3d 861, 871 (5th Cir.2005). We understand Parr's argument to be that the prosecution was aware of this coercion and failed to inform him or his counsel; however, Parr had an opportunity to cross-examine Saldierna on the two statements at trial and she denied any accusation that the police had pressured her. The state habeas court's conclusion that Parr did not establish a Brady violation was not unreasonable. Consequently, the district court correctly denied relief on this claim.
Finally, Parr argues that the prosecution provided his parole officer with evidence and exerted influence over the scheduling of his parole revocation proceedings and failed to disclose this relationship. During state habeas proceedings, both Parr's parole officer and a TYC representative testified that the prosecution did provide them with evidence, but the prosecution never controlled the timing of the revocation proceedings. The state habeas court concluded that the prosecution did not significantly participate in the parole revocation proceedings. Parr has not attempted to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1). Moreover, Parr does not explain how this information would have impacted his case; as discussed above, collateral estoppel does not apply to parole proceedings. “ ‘[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Rector v. Johnson, 120 F.3d 551, 562 (5th Cir.1997) (alteration in original) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Accordingly, he has failed to establish a Brady violation and the district court correctly denied relief on this ground.
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Finally, Parr argues that his trial counsel's presentation of mitigating evidence was deficient. Parr specifically points to trial counsel's failure to obtain records from Child Protective Services (“CPS”), despite knowing that Parr had been removed from his mother's custody. These records indicate that Parr was removed from his mother's custody for approximately two years because he and his siblings were frequently left at home unsupervised. The records also indicate that CPS received numerous complaints regarding lack of supervision and physical abuse by his mother's boyfriends. A psychologist's evaluation described ten-year- old Parr as a sad child who was acting out because he did not have consistent rules and who longed to be reunited with his mother and siblings.
Parr also submitted affidavits from several witnesses in support of his claim that trial counsel failed to present adequate mitigating evidence. The affidavits indicate that Parr had a difficult childhood during which he and his family moved around frequently, his mother was seldom at home, and he and his brothers often stole things. The state habeas court concluded that the affidavits submitted by Parr in support of this claim-those of Saldierna, Carol Parr, Alanta Williams, Jessie Parr, and Merian Whalon-were neither credible nor reliable.
Following oral argument in this case, we granted Parr's motion to supplement the record with documents his counsel discovered while preparing for oral argument. Parr submitted psychological evaluations from 1994 and 1996 stating that Parr was emotionally disturbed and severely depressed. Specifically, he produced the following: (1) a psychoeducational evaluation from Matagorda County Educational Services dated March 22, 1996, indicating that Parr was eligible for special education services as learning disabled; (2) notes from the Apple Springs/Centerville Groverton ISD Wilderness School from October 13, 1994, showing that Parr satisfied the criteria for: “Emotionally Disturbed”; and (3) records from the Hope Wilderness Schools Houston/Trinity County Resource Education Coop dated October 11, 1994, classifying Parr's emotional disturbance as “Depressive Disorder GOS A (311.00) Severe.”
It is debatable whether Parr's counsel was deficient for failing to locate and introduce the records from Child Protective Services as well as the psychological evaluations. Nevertheless, Parr has not shown a reasonable probability that but for trial counsel's performance, the outcome would have been different. Ransom v. Johnson, 126 F.3d 716, 723-24 (5th Cir.1997); cf. Wiggins v. Smith, 539 U.S. 510, 534-35, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding that counsel's failure to investigate and present evidence that the petitioner “suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care” was unreasonable and prejudiced the petitioner). Parr has not “show[n] that his proposed mitigating evidence of ... a troubled family life raises more than a mere possibility of a different outcome, and not the required reasonable probability.” Lamb v. Johnson, 179 F.3d 352, 360 (5th Cir.1999) (internal quotation marks omitted).
During the punishment phase of trial, Dr. Floyd Jennings, a clinical psychologist, testified that Parr did not have stable parenting, that he was exposed to criminal activity and substance abuse by family members, that he was sexually abused, and that he had no opportunity to learn responsibility. Parr's counsel also called one of Parr's former teachers who testified that Parr did not exhibit behavioral problems in her class.
The defense also called Parr's mother, Saldierna, who testified about her relationship with Parr's father. She stated that Parr's father lived with Saldierna sporadically, and that the family moved around a lot when Parr was young. She also testified that Parr has two brothers, in addition to Jimenez, that are also incarcerated. She further testified that her husband hit her and that sometimes her children had to protect her. She stated that Parr was in foster care while she was incarcerated for two years and that Parr had done well while in foster care. She also testified that Parr's father passed away while she was in prison and that Parr became detached after his father's death.
Additionally, though perhaps not as effectively as it might have been, the jury did hear evidence regarding Parr's unstable childhood from both Dr. Jennings and Saldierna. Further, the State's case on punishment was strong. In addition to the facts of the crime, the State presented evidence of Parr's prior convictions for burglary and assault, Maria Cervantes testified that Jimenez told her that he and Parr shot Malek in the back of the head twice and planned to kill the children but the gun “messed up,” and Parr's parole officer testified that Parr was on parole from the Texas Youth Commission when this crime was committed. The district court correctly concluded that Parr could not show prejudice and thus, was not entitled to relief on this ground.
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For the foregoing reasons, we AFFIRM the district court's denial of habeas relief and DENY Parr's request for a COA.