John King v. Lorie Davis, Director

Filing

NON DISPOSITIVE UNPUBLISHED OPINION FILED. Judge: CDK , Judge: EGJ , Judge: LHS; granting in part and denying in part motion for certificate of appealability filed by Appellant Mr. John William King [8387806-2] [16-70018]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-70018

United States Court of Appeals
Fifth Circuit

FILED
JOHN WILLIAM KING,
Petitioner - Appellant

August 8, 2017
Lyle W. Cayce
Clerk

v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-435
Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Petitioner–Appellant John William King was convicted of capital murder
and sentenced to death. King filed a federal habeas petition raising 21 claims,
all of which were denied by the district court. The district court also declined
to issue a certificate of appealability (COA) on any of the claims. King now
requests from this court a COA on five claims for habeas relief. For the
following reasons, we GRANT a COA in part on one of King’s claims. We

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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DENY a COA on King’s other claims.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Background of the Crime and Trial
In February 1999, Petitioner–Appellant John William King was
sentenced to death for the murder of James Byrd, Jr. King v. State, 29 S.W.3d
556, 558 (Tex. Crim. App. 2000). The body of Byrd, a black male, had been
found in front of a church in the town of Jasper with his head, neck, and right
arm missing. Id. About a mile and a half up the road, Byrd’s head, neck, and
arm were discovered near a culvert. Id. A forensic pathologist testified at
King’s trial that the injuries sustained by Byrd were consistent with having
his ankles wrapped together by a chain and being dragged over the road before
he was ultimately killed when his body hit the culvert. Id. at 562. A trail of
blood and Byrd’s possessions led the police further up a logging road to a grassy
area that appeared to be the scene of a fight. Id. at 558. At this area and along
the logging road, the police found “a cigarette lighter engraved with the words
‘Possum’ and ‘KKK,’ a nut driver wrench inscribed with the name ‘Berry,’ three
cigarette butts, a can of ‘fix-a-flat,’ a compact disk, a woman’s watch, a can of
black spray paint, a pack of Marlboro Lights cigarettes, beer bottles, a button
from Byrd’s shirt, and Byrd’s baseball cap.” Id.
King’s roommate, Shawn Berry (who owned a primer-grey pickup
truck 1), was later arrested.

Id. at 558–59.

King, Berry, and their third

roommate, Lawrence Russell Brewer, were all eventually charged with the
murder of Byrd. Id. at 559. In separate trials, Berry was convicted and
sentenced to life imprisonment, see Berry v. State, No. 09-00-061CR, 2001 WL
726273, at *1 (Tex. App.—Beaumont June 27, 2001, pet. ref’d), and Brewer was

A witness had seen Byrd the night that he was killed riding in the back of primergrey pickup truck while three white individuals were in the cab of the truck. Id. at 558.
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convicted and sentenced to death, see Brewer v. Quarterman, 466 F.3d 344, 345
(5th Cir. 2006).

King was convicted by a jury based on a variety of

circumstantial evidence. See King, 29 S.W.3d at 565. Some of the key pieces
of the prosecution’s evidence included (1) a cigarette butt found at the scene of
the fight (which had King’s DNA on it as a major contributor and potentially
had Byrd’s DNA on it as a minor contributor 2), (2) King’s sandals 3 (which had
Byrd’s DNA on them), and (3) King’s white supremacist views and racial
animosity 4 (which provided motive for the murder). See id. at 559, 564–65.
King’s attorneys during his trial were Haden Cribbs and Brack Jones
(collectively, trial counsel).
B. Direct Appeal and Post-Conviction Proceedings
In October 2000, on direct appeal to the Texas Court of Criminal Appeals
(TCCA), King’s conviction and death sentence were affirmed. 5 Id. at 558. King
raised the following arguments on direct appeal: (1) the evidence was legally
and factually insufficient to support his conviction because it did not show that
Byrd was kidnapped or that King was a party to the capital murder; (2) the
trial court erred in denying his requests for new counsel and his trial counsel
was ineffective in failing to introduce evidence to support his trial counsel’s

The prosecution’s DNA expert testified that one way an individual can be a minor
contributor of DNA is if that individual were to take a drag off of the cigarette.
3 King argues that the sandals with Byrd’s DNA on them actually belonged to Lewis
Berry (Shawn Berry’s brother). Lewis Berry sometimes lived in the same apartment as King,
Brewer, and Shawn Berry. Lewis Berry, however, was eliminated as a suspect by law
enforcement after other individuals confirmed his whereabouts the night of the murder.
4 For example, the Texas Court of Criminal Appeals summarized this evidence as
follows: “Several witnesses testified about how [King] refused to go to the home of an AfricanAmerican and would leave a party if an African-American arrived. In prison, [King] was
known as the ‘exalted cyclops’ of the Confederate Knights of America . . . , a white
supremacist gang. Among the tattoos covering [King’s] body were a woodpecker in a Ku Klux
Klansman’s uniform making an obscene gesture; a ‘patch’ incorporating ‘KKK,’ a swastika,
and ‘Aryan Pride’; and a black man with a noose around his neck hanging from a tree.” Id.
at 559–60 (footnotes omitted).
5 King was represented by new counsel during his direct appeal.
2

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motion to withdraw; (3) the trial court erred in sustaining the prosecution’s
challenge for cause to remove a potential juror; and (4) the trial court erred in
refusing to hold an evidentiary hearing on King’s motion for a new trial. See
id. at 558–69.
While King’s direct appeal was pending, John Heath was appointed to
represent King in his state habeas petition. In July 2000, King filed his state
habeas petition, which argued that the trial court deprived him of his right to
effective assistance of counsel by denying his request for new counsel and
raised four ineffective assistance of trial counsel claims based on his trial
counsel’s failure to (1) raise an insanity defense; (2) investigate matters
supporting mitigation; (3) investigate and present an alibi defense; and
(4) make a full record.

King, who appears to have immediately had

disagreements with Heath, filed numerous letters and motions with the trial
court requesting new counsel. Notably, Heath wrote a letter in June 2000 to
King stating that King failed to understand several aspects of the appellate
process, including that “[t]he appeal of your case, both the direct appeal and
the Writ, are based solely on the record of the case” and that “[n]o new evidence
can be brought up at this stage.”

In February 2001, the trial court

recommended that King’s state habeas petition be denied and adopted in full
the State’s proposed findings of fact and conclusions of law. In June 2001, the
TCCA found that the trial court’s findings and conclusions were supported by
the record (with minor exceptions not relevant here) and denied King’s state
habeas petition.
In September 2002, King filed his federal habeas petition. King was
represented by his current attorney A. Richard Ellis. In total, King’s federal
habeas petition raised 21 claims for relief (plus additional sub-claims). The
State subsequently moved for summary judgment, raising as one of its primary
arguments that King had failed to exhaust his claims in state court.
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response, King moved to stay the proceedings so that he could file a second
state habeas petition in order to exhaust those claims. In March 2006, the
district court granted in part the State’s motion for summary judgment.
Specifically, the district court divided the claims between those that had and
had not been exhausted. For the few exhausted claims, the district court
granted the State’s motion for summary judgment.

For the unexhausted

claims, the district court granted King’s motion to stay the case while he
presented the unexhausted claims to the appropriate state court.
In June 2006, King filed a second state habeas petition raising the
unexhausted claims. Ellis (King’s federal habeas counsel) filed the second
state habeas petition. In September 2012, the TCCA dismissed King’s second
state habeas petition “as an abuse of the writ without considering the merits
of the claims.” Ex Parte King, No. WR-49391-02, 2012 WL 3996836, at *1 (Tex.
Crim. App. Sept. 12, 2012).
In January 2013, following the TCCA’s dismissal of his second state
habeas petition, King filed a nearly 600-page amended federal habeas petition.
In June 2016, the district court denied King’s habeas petition in a 94-page
opinion. 6 The district court also declined to issue a certificate of appealability
(COA) on any of the claims. King now seeks from this court a COA on five
claims.
II. COA STANDARD
Following a district court’s denial of a habeas petition, a state prisoner
does not have an absolute right to appeal; instead, the state prisoner must first
obtain a COA. See, e.g., Buck v. Davis, 137 S. Ct. 759, 773 (2017); Rhoades v.
Davis, 852 F.3d 422, 427 (5th Cir. 2017). Under 28 U.S.C. § 2253(c)(2), “[a]
COA may issue ‘only if the applicant has made a substantial showing of the

6

The district court denied King’s request for an evidentiary hearing.

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denial of a constitutional right.’” Buck, 137 S. Ct. at 773 (quoting 28 U.S.C.
§ 2253(c)(2)). To make a substantial showing, the petitioner need only show
that “jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Cockrell, 537 U.S. 322, 327 (2003).

See Miller-El v.

The Supreme Court has recently

emphasized that the COA inquiry “is not coextensive with a merits analysis”
and “should be decided without ‘full consideration of the factual or legal bases
adduced in support of the claims.’” Buck, 137 S. Ct. at 773 (quoting Miller-El,
537 U.S. at 336).
Moreover, “[w]hen the district court denied relief on procedural grounds,
the petitioner seeking a COA must further show that ‘jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling.’” 7 Rhoades, 852 F.3d at 427 (quoting Gonzalez v. Thaler, 565 U.S. 134,
140–41 (2012)). 8
Here, King requests a COA on five claims:
(1) his

trial

counsel

was

ineffective

in

presenting

the

future

dangerousness issue;
(2) his trial counsel was ineffective in presenting the motion to change
venue;
(3) his trial counsel was ineffective in presenting his case for actual

Our court has said that, when the petitioner was sentenced to death, “any doubts as
to whether a COA should issue must be resolved in the petitioner’s favor.” Rhoades, 852 F.3d
at 427 (quoting Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015)).
8 As discussed below, King’s claims on appeal were not addressed on the merits by
Texas courts (with limited exceptions). Thus, the deference typically given under the
Antiterrorism and Effective Death Penalty Act (AEDPA) “does not apply here . . . because the
district court was not reviewing a state court decision on the merits of [the petitioner’s] claim
but rather addressing the merits for the first time.” Trevino v. Davis (“Trevino II”), 829 F.3d
328, 341 (5th Cir. 2016). Accordingly, “AEDPA’s deferential standard of review does not
apply, and we review the merits de novo.” Id.
7

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innocence;
(4) his trial counsel was ineffective in failing to present psychiatric
evidence at both the guilt and punishment phases of trial; and
(5) the district court denied him due process and a fair hearing.
As discussed below, we grant a COA in part on Claim 3 and deny a COA
on the other claims.
III. INEFFECTIVE ASSISTANCE CLAIMS
King’s first four claims are premised on the denial of his constitutional
right to counsel. For these claims, two intersecting legal frameworks apply:
the

Strickland

ineffective

assistance

of

counsel

standard

and

the

Martinez/Trevino exception to procedural default. We first discuss these legal
frameworks before assessing each of King’s ineffective assistance claims in
light of the COA inquiry.
A. The Strickland Standard
“The Sixth Amendment right to counsel ‘is the right to the effective
assistance of counsel.’”

Buck, 137 S. Ct. at 775 (quoting Strickland v.

Washington, 466 U.S. 668, 686 (1984)). To succeed on a claim of ineffective
assistance of counsel, a defendant must meet a two-prong test by showing that
(1) his counsel performed deficiently and (2) his counsel’s deficient performance
caused him prejudice. See id.
The first prong of the Strickland test—i.e., whether counsel performed
deficiently—“sets a high bar.”

Id.

A defendant’s counsel “discharged his

constitutional responsibility so long as his decisions fall within the ‘wide range
of professionally competent assistance.’” Id. (quoting Strickland, 466 U.S. at
690). This prong is met only when the defendant’s counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. And “[t]here
is a ‘strong presumption that counsel’s conduct falls within the wide range of
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reasonable professional assistance.’”

Rhoades, 852 F.3d at 432 (quoting

Strickland, 466 U.S. at 689).
For the second prong of the Strickland test, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
B. The Martinez/Trevino Exception to Procedural Default
In reviewing the constitutionality of a state prisoner’s conviction and
sentence, a federal habeas court’s review is “guided by rules designed to ensure
that state-court judgments are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our system of federalism.”
Martinez v. Ryan, 566 U.S. 1, 9 (2012). One such rule is the doctrine of
procedural default, which dictates that “a federal court will not review the
merits of claims, including constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state procedural rule.” Id.
Specifically, “[a] state court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims if, among other
requisites, the state procedural rule is a nonfederal ground adequate to support
the judgment and the rule is firmly established and consistently followed.” Id.;
see also Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (“[A] federal court may
not review federal claims that were procedurally defaulted in state court—that
is, claims that the state court denied based on an adequate and independent
state procedural rule.”). Here, the TCCA dismissed King’s second state habeas
petition pursuant to Texas’s abuse of writ doctrine, which prohibits a
successive state habeas petition except under limited circumstances. See Ex
Parte King, 2012 WL 3996836, at *1. And importantly, “Texas’s abuse of writ
doctrine is a valid state procedural bar foreclosing federal habeas review.”
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Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008) (quoting Coleman v.
Quarterman, 456 F.3d 537, 542 (5th Cir. 2006)). Accordingly, King’s ineffective
assistance claims—which were contained in his second state habeas petition
and dismissed under Texas’s abuse of writ doctrine—would typically be barred
by the procedural default rule.
The procedural default rule, however, is not absolute, and a state
prisoner “may obtain federal review of a defaulted claim by showing cause for
the default and prejudice from a violation of federal law.” Martinez, 566 U.S.
at 10.

In Martinez, the Supreme Court held that, when a state requires

ineffective assistance claims to be brought on collateral review, a state prisoner
may establish the necessary cause to overcome the procedural default rule if
the prisoner meets a two-part test: “(1) ‘the state courts did not appoint counsel
in the initial-review collateral proceeding,’ or ‘appointed counsel in [that]
proceeding . . . was ineffective under the standards of Strickland . . . ’; and
(2) ‘the underlying . . . claim is a substantial one, which is to say that . . . the
claim has some merit.’” See Buck, 137 S. Ct. at 771 (alteration in original)
(first, third, and fourth omissions in original) (quoting Martinez, 566 U.S. at
14). In Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013), the Supreme Court
extended this exception to include convictions in Texas (even though a Texas
state prisoner is not formally required to raise an ineffective assistance claim
only on collateral review). Thus, a Texas state prisoner, such as King, can raise
an ineffective assistance claim that would otherwise be barred by the
procedural default rule if he is able to meet the Martinez/Trevino exception—
(1) his state habeas counsel was ineffective under Strickland for failing to raise
the ineffective assistance claim in his first state habeas petition, and (2) the
claim is substantial, meaning that the claim has some merit.
Here, King must meet the Martinez/Trevino exception because his
ineffective assistance claims are otherwise barred by the procedural default
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rule. Thus, we turn to whether King’s state habeas counsel was ineffective in
failing to raise the ineffective assistance claims, and if so, whether those claims
are substantial.
C. First Prong of the Martinez/Trevino Exception
The first prong of the Martinez/Trevino exception looks to whether
King’s state habeas counsel, Heath, was ineffective in failing to raise the
ineffective assistance of trial counsel claims in King’s first state habeas
petition. King contends that Heath was ineffective because Heath failed to
understand what arguments and evidence could be presented in the collateral
proceeding, pointing to the letter that Heath sent to King in June 2000. In
that letter, Heath claimed that “[t]he appeal of your case, both the direct appeal
and the Writ, are based solely on the record of the case” and that “[n]o new
evidence can be brought up at this stage.” Heath’s belief that King’s habeas
petition could rely solely on the record was incorrect. Indeed, as the Supreme
Court has said, “[i]neffective-assistance claims often depend on evidence
outside the trial record.” Martinez, 566 U.S. at 13. The State does not directly
counter King’s contention that Heath was ineffective.

Instead, the State

argues that, even if Heath was ineffective, King has failed to show that each of
his ineffective assistance claims is substantial (i.e., the second prong of the
Martinez/Trevino exception). Thus, under these circumstances, we conclude
that jurists of reason could debate whether Heath was ineffective in failing to
raise any substantial ineffective assistance claims. 9 See Trevino II, 829 F.3d

We note that this inquiry is somewhat circular when the underlying ineffective
assistance of trial counsel claim that a state habeas counsel failed to raise is insubstantial.
In that context, there is an added wrinkle about whether the state habeas counsel should be
considered ineffective under the first prong of the Martinez/Trevino exception for failing to
raise an insubstantial ineffective assistance claim, even if the state habeas counsel
misunderstood the law. See Ayestas v. Stephens, 817 F.3d 888, 898 (5th Cir. 2016) (per
curiam) (“Because we agree with the district court that there is no basis to hold trial counsel
was constitutionally ineffective for failing to investigate further the possible questions of
9

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at 349 (“[The petitioner] at least sufficiently pleaded that his state habeas
counsel was ineffective so as to excuse his procedural default in failing to raise
the

ineffective-assistance-of-trial-counsel

failure-to-investigate

claim

earlier.”).
D. Second prong of the Martinez/Trevino Exception
The second prong of the Martinez/Trevino exception requires the
ineffective assistance of trial counsel claim at issue to be substantial, which
means that the claim must have some merit. Martinez, 566 U.S. at 14. Thus,
we must assess whether the merits of the underlying ineffective assistance
claims meet the threshold COA inquiry. See Trevino v. Davis (“Trevino III”),
861 F.3d 545, 548–49 (5th Cir. 2017) (“The substantiality of the underlying
IATC claim is based on the same standard for granting a COA.”). If the merits
of an underlying ineffective assistance claim meet the COA inquiry, then that
claim is “substantial” under the Martinez/Trevino second prong for the
purpose of granting a COA.
i. Claim 1: Whether King’s trial counsel was ineffective in presenting the

mental illness and substance abuse, [the petitioner’s] state habeas counsel were not
ineffective for failing to pursue that line of investigation. Raising every conceivable claim is
neither required nor beneficial.”), cert. granted sub nom. Ayestas v. Davis, 137 S. Ct. 1433
(2017); see also Matthews v. Davis, 665 F. App’x 315, 322 (5th Cir. 2016) (per curiam) (“We
conclude that no reasonable jurist would debate the district court’s resolution of the question
of whether [the petitioner’s] state habeas counsel rendered ineffective assistance of counsel
by failing to bring an insubstantial ineffective-assistance-of-trial-counsel claim pertaining to
[the petitioner’s] possible [Fetal Alcohol Spectrum Disorder].”), cert. filed, No. 17-5078 (2017).
For King’s underlying ineffective assistance claims that we decide below do not meet the COA
inquiry (and, thus, deny a COA because of the second prong of the Martinez/Trevino
exception), we need not decide whether jurists of reason could debate whether Heath was
ineffective for failing to raise those claims; instead, we assume arguendo that the first prong
of the Martinez/Trevino exception is met. However, given our conclusion below that King’s
Claim 3 is in part sufficient to meet the COA inquiry, we conclude that jurists of reason could
debate whether Heath was ineffective for failing to raise that claim in King’s first state
habeas petition.

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future dangerousness issue
King’s first ineffective assistance claim is that his trial counsel was
ineffective in presenting the future dangerousness issue. 10 In support of this
claim, King first argues that his trial counsel failed to effectively counter the
prosecution’s expert testimony from Dr. Edward Gripon. King next argues that
his trial counsel was ineffective in using Dr. Walter Quijano as an expert.
Finally, King contends that there was other, more persuasive expert testimony
available at the time of trial, which highlights his trial counsel’s
ineffectiveness. The district court, however, rejected these arguments. The
district court concluded that this claim lacked merit because King’s arguments
amounted to nothing more than merely questioning his trial counsel’s strategy,
and a review of the record revealed that his trial counsel’s performance was
not deficient in cross-examining Dr. Gripon and in using Dr. Quijano. Given
that the district court found that this claim lacked any merit, it concluded that
this claim was not substantial under the second prong of the Martinez/Trevino
exception, and thus, this claim was procedurally defaulted.
We decline to issue a COA on this claim because jurists of reason could
not debate the district court’s conclusion that King’s trial counsel’s
performance was not deficient with respect to the future dangerousness issue.
First, Dr. Gripon, a psychiatrist, testified that he believed that King would
pose a future threat of dangerousness based on factors such as King’s white
supremacist views and criminal history. In cross-examination, King’s trial
counsel sought to undermine the predictive capabilities of Dr. Gripon by, for

During the punishment phase of a Texas capital case, several special issue questions
are submitted to the jury. One such issue for the jury is what the parties refer to as future
dangerousness—i.e., “whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to society.” Tex. Code
Crim. Proc. art. 37.071, § 2(b)(1); see also Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir.
2002).
10

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example, getting Dr. Gripon to admit that the American Psychiatric Society’s
position is that a psychiatrist is no better at predicting future dangerousness
than any other individual of equal intelligence. King’s trial counsel spent the
remainder of his cross-examination drawing out testimony about how Dr.
Gripon received information about King only from the prosecution (or the
federal government) and how Dr. Gripon did not personally interview King
(which Dr. Gripon admitted was the best way to form a prediction on future
dangerousness).

Jurists of reason could not debate whether King’s trial

counsel was deficient in cross-examining Dr. Gripon.
Second, Dr. Quijano testified about his theory on future dangerousness,
which applied factors that he had developed based on his experience. Dr.
Quijano ultimately concluded that, if left in the free world, King would be a
future danger to society, but in prison, the probability of future dangerousness
was low. As King points out, Dr. Quijano stated that some factors weighed in
favor of finding King to be a future danger. That being said, the clear inference
from Dr. Quijano’s testimony is that King’s trial counsel was attempting to
show that King would not be a future danger within the confines and
regulations of prison. King, however, argues that this strategy was inadequate
and included flawed reasoning by Dr. Quijano. In support of this argument,
King points to an affidavit included with his federal habeas petition from Dr.
Mark Cunningham, a psychologist, purportedly showing that more accurate
and stronger arguments about future dangerousness were available. Yet, this
is simply an argument for a different strategy, and jurists of reason could not
debate whether King’s trial counsel’s strategy of presenting Dr. Quijano’s
testimony fell outside of the wide range of reasonable professional assistance.
Cf. Rhoades, 852 F.3d at 434 (“[The petitioner] presents us with no colorable
argument that the state court’s finding defense counsel’s trial strategy
reasonable was unreasonable.”); Anderson v. Quarterman, 204 F. App’x 402,
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406 (5th Cir. 2006) (holding that a state habeas court’s decision was not based
on an unreasonable determination of the facts or an unreasonable application
of the law under 28 U.S.C. § 2254(d) when it found that trial counsel had used
a reasonable strategy in presenting Dr. Quijano to testify about how the
petitioner could be safely controlled in prison).
In sum, jurists of reason could not debate the district court’s conclusion
that King’s trial counsel’s performance was not deficient with respect to the
future dangerousness issue. Accordingly, jurists of reason could not debate the
district court’s conclusion that this claim is procedurally defaulted because
King has failed to meet the second prong of the Martinez/Trevino exception,
and thus, we decline to issue a COA on this claim.
ii. Claim 2: Whether King’s trial counsel was ineffective in presenting the
motion to change venue
The state trial court denied King’s motion to change venue, and his
second ineffective assistance claim is that his trial counsel was ineffective in
presenting that motion. Specifically, King contends that, although a hearing
was held on his motion to change venue, it was a “perfunctory affair” and his
trial counsel “had an entirely misguided and doomed fixation on a trivial rise
in Jasper property taxes as their main rationale for a change of venue, which
only affected each taxpayer to the extent of about five dollars.” King also
compares his trial counsel’s performance with that of Brewer’s trial counsel,
who was able to obtain a change of venue. King argues that he was prejudiced
because the people in Jasper needed to secure a guilty verdict to avoid racial
strife and that the trial atmosphere was utterly corrupted by the extensive
coverage of the case. The district court, however, denied this claim, finding
both that King’s trial counsel’s performance was not deficient and that King
had failed to demonstrate prejudice.

Regarding King’s trial counsel’s

performance, the district court noted that his trial counsel had filed a motion
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to change venue, which included as exhibits the local and statewide newspaper
coverage of the case, and called two witnesses who testified that King could not
receive a fair trial in Jasper. The district court further reasoned that King had
not pointed to any additional witnesses who were available to testify at the
hearing. Regarding prejudice, the district court found that King had failed to
show that the outcome would have been different, especially considering the
fact that Brewer (whose trial was moved) received a death sentence and Shawn
Berry (whose trial was not moved) received only a life sentence. Accordingly,
the district court found that this claim was procedurally defaulted because the
claim lacked any merit and, thus, was not substantial under the second prong
of the Martinez/Trevino exception.
We decline to issue a COA on this claim because jurists of reason could
not debate the district court’s conclusion that King’s trial counsel’s
performance was not deficient in presenting the motion to change venue. In
support of the motion, King’s trial counsel introduced numerous examples of
newspaper articles, highlighting the extensive press coverage that the case had
received. Moreover, King’s trial counsel called two witnesses who testified that
King could not receive a fair and impartial trial in Jasper. 11 Although it is true
that the prosecution called a greater number of witnesses who testified that
King could receive a fair trial, the number of witnesses alone does not signal a
trial counsel’s deficient performance. Finally, although King recognizes that
his trial counsel elicited some testimony about his ability to receive a fair trial,
he counters that his trial counsel focused improperly on a theory that Jasper
residents were unhappy with a property tax increase that supported trial costs.
But this argument is simply not an accurate characterization. Far from being

King’s trial counsel also included affidavits from two other witnesses as part of the
motion to change venue, which similarly said that King could not receive a fair and impartial
trial in Jasper.
11

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the focus of King’s trial counsel, the tax theory made only brief appearances in
his trial counsel’s questioning.
In sum, jurists of reason could not debate the district court’s conclusion
that King’s trial counsel’s performance did not fall outside the wide range of
reasonable professional assistance. Accordingly, we decline to issue a COA on
this claim because jurists of reason could not debate the district court’s
conclusion that the claim is procedurally defaulted given that King has failed
to meet the second prong of the Martinez/Trevino exception.
iii. Claim 3: Whether King’s trial counsel was ineffective in presenting
his case for actual innocence
King’s third ineffective assistance claim is that his trial counsel was
ineffective in presenting his case for actual innocence. In support of this claim,
King cites to examples of what he views as evidence of his trial counsel’s
ineffectiveness in presenting his case for innocence.

For example, King

contends that there were only a few pieces of circumstantial evidence tying him
to the scene of the fight and that each of those pieces of evidence had an
innocent explanation, but his trial counsel offered only confusing and
disjointed explanations. 12 In light of the COA inquiry, we conclude that jurists
of reason could debate whether King’s trial counsel’s performance was deficient
with respect to this claim and whether King was prejudiced. Accordingly,
jurists of reason could also debate whether the Martinez/Trevino exception
applies to this claim, and thus, we grant a COA on this claim. 13 See Busby v.

For example, during closing arguments, King’s trial counsel apologized to the jury
for forgetting what the evidence showed about who had possession of the “Possum” lighter at
the time of the murder before moving on to the cigarette butt that had King’s DNA on it,
which his trial counsel appeared to concede also contained Byrd’s DNA (although the
prosecution’s DNA expert had actually testified only that Byrd could not be excluded from
being a minor contributor).
13 However, to the extent that King is arguing in support of this claim that his trial
counsel was ineffective in searching for an alibi witness, we decline to issue a COA with
12

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Davis, 677 F. App’x 884, 893 (5th Cir. 2017) (per curiam) (“At this stage, we
simply conclude that reasonable jurists could debate whether [the petitioner]
has presented a substantial, or viable, IATC claim sufficient to excuse the
procedural default and to merit a COA.”). Further development of this issue
will await the briefing ordered below.
iv. Claim 4: Whether King’s trial counsel was ineffective in failing to
present psychiatric evidence at both the guilt and punishment phases of trial
King’s fourth ineffective assistance claim is that his trial counsel was
ineffective in failing to use a psychiatric expert to present testimony at both the
guilt and punishment phases of trial. As an initial matter, the parties’ briefing
for this claim is somewhat convoluted and complicated by the fact that King
contends that the district court “completely mischaracterizes the claim.”
King’s arguments on appeal appear to blend, at least in part, the substance of
two nominally distinct claims that he raised in the district court: the claim that
his trial counsel was ineffective in failing to obtain and use a psychiatric expert
to present testimony at both the guilt and punishment phases of trial (which
we understand to be the claim renewed on this appeal), and the claim that his
trial counsel was ineffective in failing to investigate and present mental health

respect to that aspect of the claim. As the district court correctly recognized, King did raise
this argument in his first state habeas petition, and the state habeas court found that his
trial counsel made diligent efforts to find the alibi witness and, thus, did not render
constitutionally deficient performance in attempting to find the alibi witness. The district
court thus denied this aspect of the claim under 28 U.S.C. § 2254(d) because King had failed
to show “that the State court findings resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law as determined by the Supreme
Court of the United States, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceedings.”
On appeal, King only offers conclusory arguments about why his trial counsel’s recounting of
the efforts to find the alibi witness—which was included in an affidavit that was submitted
as part of the first state habeas proceedings—should not be believed, and he does not offer
any further clue as to who the alibi witness was or how his trial counsel should have found
the alibi witness. Accordingly, jurists of reason could not debate the district court’s denial of
this aspect of the claim.

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information (which is not the claim renewed on this appeal).
On appeal, regarding the guilt phase, King appears to argue that his trial
counsel was ineffective in failing to properly explore an insanity defense or
whether he was incompetent to stand trial. According to King, his trial counsel
should have had him evaluated on a confidential basis by a psychiatrist, which
he was entitled to under Ake v. Oklahoma, 470 U.S. 68 (1985). King argues
that a reasonable investigation by his trial counsel would have found evidence
in his medical and prison files showing that he suffered from mental health
problems. Regarding the punishment phase, King argues that his trial counsel
was ineffective for failing to use testimony from a psychiatrist to present his
mental health problems. King appears to be arguing that the same mental
health problems that should have been presented at the guilt phase should also
have been presented at the punishment phase (although he is not entirely clear
whether this evidence should weigh on the future dangerousness issue, the
mitigation issue, or both).
The district court rejected all aspects of King’s claim. For the guilt phase
aspect of this claim, the district court noted that, in fact, King had raised this
argument in his first state habeas petition, but the TCCA had found that his
trial counsel was not ineffective in failing to raise an insanity defense. The
district court reasoned that King’s claim lacked merit because there was no
evidence that King had any mental disorders that would have supported an
insanity defense or that he was incompetent to stand trial, which was
highlighted by the fact that Dr. Quijano testified that King would pose less of
a future danger because he did not have any mental disorders that could cause
irrational reactions. Accordingly, given that the state habeas court considered
and rejected this argument, the district court rejected this claim because “King
ha[d] not shown, as required by 28 U.S.C. § 2254(d), that the State court
findings resulted in a decision that was contrary to, or involved an
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unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States, or resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.” For the punishment phase aspect
of this claim, which had not been raised in King’s first state habeas petition
(and, thus, was subject to the procedural default rule), the district court
credited King’s trial counsel’s efforts to investigate whether any mental health
problems could be used as evidence for mitigation or a lack of future
dangerousness. Specifically, King’s trial counsel had submitted an affidavit as
part of the first state habeas proceedings stating that he had consulted with
two psychologists (one being Dr. Quijano) who examined King and found no
evidence of mental illness. Thus, the district court found that King’s trial
counsel’s performance with respect to this aspect of the claim was not deficient
because his trial counsel had conducted a reasonable investigation into his
mental health and the decision not to seek a further psychiatric evaluation was
an informed, strategic decision. Accordingly, the district court found that the
punishment phase aspect of this claim was procedurally defaulted.
For the guilt phase aspect of this claim, the district court correctly
recognized that, given that the state habeas court did address the merits of
this aspect of the claim, King could only succeed if he meets the heightened
standard of review under § 2254(d). See Rhoades, 852 F.3d at 434 (describing
how our review is “‘doubly deferential’ because we take a highly deferential
look at counsel’s performance through the deferential lens of § 2254(d)”
(quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011))). King, however, only
speculates about what might have been discovered had his trial counsel
attempted to have him evaluated by a psychiatrist. King points to his alleged
history of depression, bipolar disorder, and suicide attempts, but he does not
explain further how this history could have justified (or led to) an insanity
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defense or an opinion that he was incompetent to stand trial. King’s trial
counsel’s affidavit explained that he had consulted two psychologists, and
neither psychologist found evidence that King had any mental illnesses.
Accordingly, jurists of reason could not debate the district court’s denial of this
aspect of the claim under § 2254(d), and thus, we deny a COA on this claim
with respect to the guilt phase of trial.
For the punishment phase aspect of this claim, King again focuses on his
history of depression, bipolar disorder, and suicide attempts, which he argues
was easily discoverable and should have been presented to the jury. Jurists of
reason, however, could not debate the district court’s conclusion that King’s
trial counsel’s performance was not deficient. In his affidavit in the first state
habeas proceedings, King’s trial counsel explained that King had denied
having any mental disability that could support mitigation and that two
psychologists had examined King and found no mental illnesses. See Segundo
v. Davis, 831 F.3d 345, 352 (5th Cir. 2016) (“Counsel should be permitted to
rely upon the objectively reasonable evaluations and opinions of expert
witnesses without worrying that a reviewing court will substitute its own
judgment, with the inevitable hindsight that a bad outcome creates, and rule
that his performance was substandard for doing so.” (quoting Smith v.
Cockrell, 311 F.3d 661, 676–77 (5th Cir. 2002))). Indeed, Dr. Quijano examined
King, found no evidence of mental illness, and testified that King would pose
less of a future danger because he did not have any mental illnesses that could
cause irrational reactions.

Cf. Saldaño v. Davis, -- F. App’x --, 2017 WL

2814386, at *8 (5th Cir. 2017) (per curiam) (“Reasonable jurists would agree
that trial counsel’s choice not to introduce mental health evidence or put [the
defendant’s mother] on the stand was reasonably strategic and therefore not
deficient under Strickland.”). Accordingly, jurists of reason could not debate
whether King’s trial counsel’s performance fell outside of the wide range of
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reasonable professional assistance. 14 Thus, we deny a COA on this claim
because King has failed to meet the second prong of the Martinez/Trevino
exception.
IV. CONCLUSION 15
For the foregoing reasons, we GRANT a COA in part on Claim 3. King
shall submit a brief on this claim within 30 days. The State shall submit a
response within 15 days thereafter. We DENY a COA on King’s other claims.

To the extent that King argues that his trial counsel conducted an unreasonable
investigation into his mental health by purportedly not discovering his history of depression,
bipolar disorder, and suicide attempts, we reject this argument. As noted above, King’s trial
counsel had King examined by two psychologists who both reached the same conclusion that
King did not have any mental illnesses. See Segundo, 831 F.3d at 352 (“Given trial counsel’s
investigation and reliance on reasonable expert evaluations, [the petitioner] cannot overcome
the strong presumption that counsel’s representation fell within the wide range of reasonable
professional assistance.”). We also reject King’s conclusory arguments that the district court
erred in relying on King’s trial counsel’s affidavit on this point because other portions of that
affidavit are purportedly false.
15 King’s fifth claim for relief is that the district court denied him due process and a
fair hearing, which he supports by arguing that the district court’s opinion closely copied or
paraphrased the State’s answer. As an initial matter, it is unclear exactly what relief King
is requesting. Presumably, King is not claiming to be entitled to habeas relief because the
district court did not provide him with due process and a fair hearing, and instead, he is
requesting some sort of remand to allow further independent review by a district court. In
any event, we reject this claim. As even King acknowledges, the district court did not just
cut and paste from the State’s answer. It is true that the district court’s opinion closely
mirrors the State’s answer in multiple places, but this simply shows that the State made
persuasive arguments, not that the district court, as King claims, ignored its duty to make
an independent evaluation of the claims. Simply put, the circumstances of this case do not
call into question whether the district court failed to independently evaluate King’s claims in
its 94-page opinion, and King has failed to show otherwise. Accordingly, jurists of reason
could not debate this claim, and we decline to issue a COA.
14

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