Howard v. Director TDCJ-CID

Filing 97

MEMORANDUM OPINION AND ORDER OF DISMISSAL. ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. It is further ORDERED that a certificate of appealability is DENIED. It is finally ORDERED that all motions not previously ruled on are DENIED. Signed by District Judge Amos L. Mazzant, III on 9/20/2019. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

JAMAAL HOWARD,
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.

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CIVIL ACTION NO. 1:13-cv-256

MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Petitioner Jamaal Howard (“Howard”), a death row inmate confined in the Texas prison
system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He is challenging his capital murder conviction and death sentence imposed by
the 356th Judicial District Court of Hardin County, Texas, in Cause Number 15114-A, in a case
styled The State of Texas vs. Jamaal Howard. For reasons set forth below, the Court finds that
the petition should be denied.
I. FACTUAL BACKGROUND OF THE CASE
The Texas Court of Criminal Appeals discussed the factual background of the case as
follows:
[Howard] stole a gun from his grandfather the night before the murder and hid it.
Despite his family’s efforts to persuade him to turn over the gun, [Howard]
refused. The following morning, [Howard] retrieved the gun and walked several
blocks from his house to the Chevron store. After peering in the windows, he
entered the store, went into the secured office area where the victim was sitting,
cocked the gun, and shot the victim in the chest. [Howard] stole $114.00 from the
cash register and reached over the dying victim to steal a carton of cigarettes
before leaving. The offense was recorded on videotape. [Howard] denied
committing the offense until he was told it was videotaped. He told the officer
who took his statement that he was not sorry for committing the offense.
1

At the punishment stage of the trial, the State presented evidence that [Howard]
demonstrated a disregard for authority and school rules despite the continued
efforts of his mother and educators. During one incident, [Howard] punched a
pregnant teacher in the chest with his fist when she asked him to return to his seat.
When [Howard] was assigned to an alternative school, he refused to comply with
its rules and standards, and he was defiant and disruptive. The State also
presented evidence of [Howard’s] possession of controlled substances, his
fighting with police officers and resisting arrest, his committing of several
burglaries as a juvenile, and his fighting with other inmates. Dr. Edward Gripon
testified for the State that [Howard] was not suffering from schizophrenia, but
rather was suffering from antisocial personality disorder.
Howard v. State, 153 S.W.3d 382, 383–84 (Tex. Crim. App. 2004) (en banc).
II. PROCEDURAL HISTORY OF THE CASE
Howard was convicted and sentenced to death for the capital murder of Vicki Swartout, a
Chevron convenience store clerk, who Howard intentionally killed during the course of a
robbery or attempted robbery on May 12, 2000. (1 C.R. 3, 114, 128).1
Evidence in the capital murder trial began on April 9, 2001. (20 R.R.). The trial was
recessed the following day after defense-sponsored testimony from Dr. James Duncan,2 a clinical
psychologist, in order to determine if Howard was competent. (21 R.R. 47). A separate trial on
competency began on April 11, 2001 (29 R.R.), but ended with the jury deadlocked. (30 R.R.
37). A second competency trial began on April 16, 2001 (31 R.R.), and concluded with the jury
finding that Howard was competent to proceed. (32 R.R. 134–35).
Trial on the merits resumed on April 18, 2001. (22 R.R.). Defense counsel called an
additional eleven lay witnesses to testify about Howard’s mental health issues and odd or
1

“C.R.” is the clerk’s record of pleadings and documents filed with the trial court. Additionally, “R.R.” is the reporter’s
record of transcribed testimony and exhibits from trial, “SH-” or “DX-” are the enumerated exhibits of the State or the
Defendant from trial, and “SHCR” is the state habeas clerk’s record, and “Supp. SHCR” is the supplemental state habeas
clerk’s record. Citations are preceded by volume number and followed by page or exhibit number, where applicable.
All of the state court records are contained in docket entry number 78.
2

Dr. Duncan testified that he was court-appointed to evaluate Howard’s competency; that during the interview, Howard
displayed symptoms of a thought disorder, possibly schizophrenia; and that his competency was questionable. (21 R.R.
18, 20, 23–30, 42).
2

unusual behavior to support an insanity defense. The State called Dr. Edward Gripon in rebuttal.
The jury rejected the defense and on April 20, 2001, convicted Howard of capital murder. (24
R.R. 55; 3 C.R. 601–04). Based on the jury’s answers to the special issues set forth in the Texas
Code of Criminal Procedure Article 37.071, the trial court sentenced Howard to death on April
25, 2001.
Howard moved for a new trial, but was denied relief following a hearing. (3 C.R.
598–99; 28 R.R. 24). The Texas Court of Criminal Appeals affirmed the conviction. Howard,
153 S.W.3d at 389. The United States Supreme Court denied his petition for a writ of certiorari.
Howard v. Texas, 546 U.S. 1214 (2006).
While his direct appeal was proceeding, Howard applied for a state writ of habeas corpus
raising 22 claims. (SHCR 21–183). In June 2012, the trial court issued findings of fact and
conclusions of law without conducting an evidentiary hearing. The trial court recommended that
relief be denied. (Supp. SHCR 20–36). The Court of Criminal Appeals denied relief based upon
the findings and conclusions of the trial court and its own review. Ex parte Howard, No.
WR–77,907–01, 2012 WL 6200688 (Tex. Crim. App. Dec. 12, 2012) (unpublished).
Howard’s federal petition for a writ of habeas corpus was timely filed on December 13,
2013. (Dkt. #16). In order to give Howard the opportunity to develop and prove his claims under
Martinez and Trevino, the Court authorized funding for a mitigation specialist, Gina Vitale,
MSW (see Dkt. ##7, 15, 32), and for three mental health experts, Dr. George Woods, a
neuropsychiatrist3 (see Dkt. #56), Richard O. Temple, Ph.D., a neuropsychologist (Dkt. #56),
and James Patton, Ed. D., an intellectual disability expert (Dkt. #56). Howard filed an amended
3

Howard complains that he would have had a finalized report from Dr. Woods but for the Court disallowing the request
for additional funds for Dr. Woods’ services (Dkt. #76, p. 66). The Court authorized over $36,000 in expert fees for this
case (see Dkt. ##31, 56, 71). Of this approved funding, more than $20,000 was allocated for Dr. Woods’ services.
3

petition for a writ of habeas corpus (Dkt. #76) on September 25, 2017. The State filed an answer
(Dkt. #79) on November 27, 2017. Howard filed a response (Dkt. #80) on December 22, 2017.
III. GROUNDS FOR RELIEF
Howard brings the following grounds for relief:
1.

Trial counsel provided constitutionally ineffective representation by failing to
adequately investigate, develop, and present evidence of Howard’s life history
and mental health in mitigation of punishment;

2.

Trial counsel provided constitutionally ineffective representation by failing to
thoroughly investigate Howard’s psycho-social history and seek timely and
relevant evaluations of his mental condition regarding: (a) competence to stand
trial, (b) criminal responsibility for capital murder, and (c) whether his waiver of
Miranda4 rights and subsequent confession were knowing and intelligent;

3.

Trial counsel’s lack of, and failure to conduct the necessary research to develop, a
reasonable understanding of the difference between competency to stand trial and
mental defenses to criminal responsibility deprived Howard of his right to
effective assistance of counsel;

4.

The prosecutor’s closing argument violated Howard’s Eighth and Fourteenth
Amendment rights to have the jury give effect to mitigating evidence even if the
evidence had no causal relationship to the capital crime; and

5.

Assuming the Supreme Court did not announce a new rule in Tennard v. Dretke,
542 U.S. 274 (2004), Howard was denied his right to effective assistance of
counsel because his attorney failed to object to the prosecutor’s nexus argument.
IV. STATE COURT PROCEEDINGS

In order to discuss and analyze Howard’s grounds for relief, the Court reviewed the
evidence presented at the sentencing hearing of Howard’s capital trial. Below is a summary of
that review:

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Miranda v. Arizona, 384 U.S. 436 (1966).
4

A.

The State’s case-in-chief.
1.

Howard’s assault of a teacher, disregard for authority and school rules, and
persistent defiance.

In 1993, when Howard was in middle school, he punched a pregnant teacher in the chest
with his fist when she asked him to return to his seat. (25 R.R. 3–5). Starla Alexander testified
that she entered a classroom to help get students settled down after a fight had broken out. (25
R.R. 4). Howard was out of his desk and would not return to his seat despite being asked to do
so. (25 R.R. 4). Ms. Alexander testified that when she asked Howard if he needed an escort to
his seat and touched his arm, he got “very offended” by her touch. (25 R.R. 4). Howard pushed
Ms. Alexander and she pushed back. (25 R.R. 4). He then struck her in the chest, leaving a
round bruise. (25 R.R. 4). The incident ended when the school nurse arrived and Howard went
to the office. (25 R.R. 5).
Joann Ferrell, Special Services Director for the Silsbee Independent School District,
testified that Howard was a special education student; his behavior and academic progress were
reviewed and discussed at admission, review, and dismissal (ARD) committee meetings; and
Howard’s mother would attend. (See 25 R.R. 7, 9). She agreed that Howard’s mother did
everything she could to help her son conform to the rules and that the school exhausted every
resource it had in dealing with Howard, but Howard failed to comply. (25 R.R. 10). Ms. Ferrell
believed that Howard had the ability to follow the rules and pass his classes had he wanted to do
so. (25 R.R. 10).
Laura Elizando, an educational diagnostician at Silsbee High School, testified that school
records (33 R.R. at SX-49) show Howard was admitted to the special education program on
December 15, 1995. (25 R.R. 19). However, by February 1996, Howard was placed in the
student alternative center (SAC) as a result of “constant persistent misbehavior.” (25 R.R.
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19–20). SAC is used when a student’s behavior becomes so disruptive that other students can no
longer learn. (25 R.R. 22–23). According to Ms. Elizando, Howard refused to comply with the
rules at SAC, and was defiant and disruptive. (25 R.R. 20). Howard was also taking medication
for ADHD, but admitted to the ARD committee that he was also using alcohol and illegal drugs.
(25 R.R. 20–21).
ARD records from April 1996 show that after two months at SAC, Howard was still not
conforming to rules, would talk across the room, and laughed and played with his peers. (25
R.R. 22). Nevertheless, Howard passed the math and reading portions of the exit level of the
TAAS exam, the Texas Assessment of Academic Skills achievement-type test that a student
must pass in order to graduate. (25 R.R. 23; 34 R.R. at SX-49). A passing score meant that
Howard had the required minimal competencies, which is another way of saying his learning
was appropriate for his grade level. (25 R.R. 23–24). Ms. Elizando testified that in May 1996,
Howard was homebound from SAC because his behavior was continually disruptive. (25 R.R.
22). Howard could have been expelled and lost his school credits for the year, but was instead
given another chance by being placed on homebound. (25 R.R. 22, 24). In the program, a
teacher would meet with Howard for four hours a week at his home, bring his work, and help
keep him current in his classes. (See 25 R.R. 23).
Ms. Elizando testified that Howard returned to high school from homebound on August 9,
1996, but was placed in SAC because he now had charges against him for delivery of crack
cocaine, assault, and criminal mischief. (25 R.R. 24–25). Three weeks later, Howard was
homebound again because of his constant and persistent misbehavior and defiance. (25 R.R. 25).
However, Howard failed to meet with the homebound teacher. (25 R.R. 26). As a result, he was

6

dismissed from the special education program on January 23, 1997, for noncompliance and
nonattendance, and was expelled. (25 R.R. 26).
According to Ms. Elizando, Howard came back to school briefly in August 1997 and reentered the special education program.

(25 R.R. 26).

Howard was placed on in-school

suspension (ISS) in September 1997 because of tardiness. (25 R.R. 27–28). While there, he
wrote gang-related things on his desk regarding the “5-9 Hoover Crypts,” a gang out of
Beaumont. (25 R.R. 28–29). By October 1997, Howard was expelled because of his constant
defiance and refusal to conform. (25 R.R. 29). Ms. Elizando believed that Howard’s actions
were volitional because she had other students with ADHD who did follow the rules. (25 R.R.
30).
Gwen Boyett, Assistant Principal for Silsbee High School, testified that she worked for
three years as the coordinator at SAC. (25 R.R. 46). Ms. Boyett stated that Howard was not
successful at SAC and did not follow the regulations and rules. (25 R.R. 48). She met with
Howard and his mother when he was enrolled, gave them a copy of the rules, and discussed the
rules with them. (25 R.R. 47). When Howard did not abide by the rules, Ms. Boyett talked with
him and to his mother, but Howard continued not to abide so he was expelled from SAC. (25
R.R. 48). Ms. Boyett explained that it is “a continuous misbehavior of not following the rules
that will take a student to expulsion.” (25 R.R. 53). She testified that Howard was never
disrespectful or belligerent, but simply did not want to do the work and follow the rules. (25
R.R. 48). Ms. Boyett did not believe that Howard’s actions, such as not following the dress

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code, had anything to do with his handicapping condition of ADHD but were instead the result
of Howard’s choices. (25 R.R. 48–49).5
Rodney Cavness, a former Assistant Principal at Silsbee High School, testified that his
main responsibility was enforcing discipline for the special education department. (25 R.R.
56–57). In that role, Mr. Cavness had many occasions to interact with Howard and worked with
him extensively for about three years. (25 R.R. 57). Mr. Cavness testified that Howard was
“very defiant,” “chose not to follow the rules,” and “[d]id pretty much what he wanted to do
when he wanted to do it.” (25 R.R. 57). He described Howard’s mother as a “good lady” who
really tried to help her son and did everything she could to help him succeed. (25 R.R. 57–58).
By his account, the school “exhausted all resources that [it] had available to try to modify
[Howard’s] behavior, from counseling with the young man, involving the parents, in school
suspension, suspension out of school, placement in the alternative school, [and] expulsion.” (25
R.R. 58). However, Howard’s misbehavior persisted and resulted in serious infractions of the
school rules. (25 R.R. 58). Mr. Cavness also recalled that during one ARD meeting, Howard
admitted to experimenting with illegal drugs and/or alcohol. (25 R.R. 63).
Tom Wakefield, a former director at SAC, testified that Howard was assigned to the
school because of a felony offense for distribution of cocaine. (25 R.R. 104). Howard was
defiant, completely disregarded the rules, and would not adhere to even the basic regulations of
the program. (25 R.R. 100–01, 102). Mr. Wakefield explained that SAC had a rule requiring
students to tuck in their shirttails because it allowed teachers to see if weapons were hidden in
5

Ms. Boyett additionally testified that when Howard was about sixteen years old, his mother told her that Howard had
heard voices and that Ms. Howard was very concerned. (25 R.R. 51, 56). Ms. Boyett told the director of nurses and the
assistant superintendent at SAC about the conversation. (25 R.R. 50). On cross-examination, she stated that she believed
Ms. Howard was very sincere about it. (25 R.R. 51). However, Howard never told Ms. Boyett that he heard voices and
she never saw Howard talking to himself or acting in such a way that it appeared he was hearing voices. (25 R.R. 51,
54–55).
8

waistbands or pockets. (25 R.R. 103). When Howard was asked to tuck in his shirttail, he
responded by saying he did not give an “F” what he was told to do. (25 R.R. 103). Howard also
refused to take his medications and said he did not have to take them. (25 R.R. 103). Mr.
Wakefield stated that when Howard wanted to complete his school work, he was capable of
doing so. (25 R.R. 104).
2.

Howard’s criminal history and prior bad acts.

The State presented evidence of Howard committing several burglaries as a juvenile, his
possession of controlled substances, his fighting with police officers and resisting arrest, and his
fighting with other inmates in jail while he was awaiting trial for capital murder.
On December 1, 1993, when Howard was thirteen years old, he was placed on probation
for one year after he was found to have engaged in delinquent conduct. (25 R.R. 89–90; 33 R.R.
at SX-50). Specifically, Howard committed burglary of a motor vehicle on four separate
occasions: at Colvin’s Transmission (June 1, 1993 and July 21, 1993), at Boddie’s Garage
(August 1, 1993), and at Payne and Sons (August 15, 19946).
On September 25, 1997, Howard committed the offense of delivery of a controlled
substance, cocaine. (25 R.R. 89; 33 R.R. at SX-51). He was convicted on January 28, 1998, and
placed on deferred adjudication probation for four years.
On December 30, 1997, Howard was arrested for possession of marijuana, resisting
arrest, and failure to identify.

Officer Carlos Montalvo of the Silsbee Police Department

testified that he made a traffic stop of a vehicle in which Howard was the front seat passenger.
(25 R.R. 65–67). Howard was not wearing a safety belt, which is a violation of Texas traffic
laws. (25 R.R. 67). When Officer Montalvo asked Howard for identification, he refused. (25
6

This offense appears to have been committed after Howard was placed on probation.
9

R.R. 67). Howard eventually told the officer his name, but cursed at him and refused to give his
birth date. (25 R.R. 67). Officer Montalvo arrested Howard for failure to identify, placed him in
restraints, and took him to jail. (25 R.R. 67–68). At book-in, Officer Montalvo found a small
baggy of marijuana in the pocket of Howard’s jacket. (25 R.R. 69). Officer Montalvo testified
that Howard refused to enter the jail cell, jerked away from him, and started swinging when the
officer grabbed his arm. (25 R.R. 70). Howard began fighting and kicking, so Officer Montalvo
took him down to the floor. (25 R.R. 70). The officers used hand and leg restraints to get
Howard into the cell, and monitored his behavior to make sure he did not hurt himself. (25 R.R.
70). Officer Montalvo thought Howard was possibly intoxicated and testified that Howard
eventually calmed down inside the cell. (25 R.R. 71).
On January 12, 1999, Howard ran from Officer Montalvo when he was on patrol. (25
R.R. 71). Officer Montalvo testified that he was patrolling in a marked police vehicle through an
area with a lot of drug activity when he saw Howard leaning inside the window of a car. (25
R.R. 72–74). When the officer turned around to observe the vehicle, Howard took off running.
(25 R.R.72). Officer Montalvo ordered him to stop but he failed to do so, and a foot chase
ensued. (25 R.R. 72). Howard jumped over several fences and ran in every direction, but was
eventually found behind a house. (25 R.R. 72–73, 74). Officer Montalvo had no trouble taking
Howard into custody because Howard was tired. (25 R.R. 74).
On April 29, 2000—less than two weeks before Howard’s capital crime—Howard was
arrested for possession of crack cocaine. Deputy Andrew Cole testified that while he was on
patrol, he saw Howard riding a bicycle. (25 R.R. 116). As the deputy approached, Howard
threw down the bicycle and began running. (25 R.R. 117). Deputy Cole caught Howard and
placed him in handcuffs to find out why Howard ran. (25 R.R. 118). During a pat down, Deputy
10

Cole found a hard, rocky substance in Howard’s sock and arrested him for possession of crack
cocaine. (25 R.R. 118–19). The DPS Crime Lab analyzed five individuals rocks and reported
that it was .40 grams of cocaine. (25 R.R. 125–26).
On May 30, 2000, while Howard was in jail awaiting trial for capital murder, he caused
bodily injury to Quincy Dixon, a fellow inmate. Deputy Chris Robichaux, a jailer with the
Hardin County Sheriff’s Department, testified that he saw Howard with his hands and fists
raised, standing over Dixon who was on the floor. (See 25 R.R. 78). Deputy Robichaux stated
that when he asked Howard what was going on, Howard said he was tired of Dixon mumbling
remarks toward him, so Howard assaulted him. (25 R.R. 78).
On January 4, 2001, Howard caused bodily injury to Shawn Benton, an inmate at the
Hardin County Jail. Deputy Anthony Flowers testified that he responded to a radio call for
assistance to break up a fight in the visitation room. (25 R.R. 82–83). When he reached the
location, he saw Howard striking Benton about the face and head with a closed fist. (25 R.R.
84). The officers used pepper spray to break up the fight. (25 R.R. 84).
Sheriff Ed Cain testified to difficulties escorting Howard to court. (25 R.R. 91–92).
Once when Howard was being brought from the jail through the sally port, he jerked away when
the Sheriff took him by the arm. (25 R.R. 92). Howard also jerked away when Sheriff Cain took
hold of Howard’s sleeve. (25 R.R. 92). After that incident, the Sheriff ordered that Howard be
placed in handcuffs when he was outside the courtroom door. (25 R.R. 93). Sheriff Cain
testified that Howard would also stiffen up his arms so the handcuffs could not be positioned to
fit the key inside the lock and would jerk away afterwards. (25 R.R. 94–95).

11

B.

Howard’s case for mitigation.
During both stages of trial, Howard presented testimony from lay witnesses and experts

regarding his background and mental health history.
1.

Testimony of family members.
(a)

Howard’s background and mental status.

Shirley Howard, Howard’s mother, testified at both stages of trial. (23 R.R. 49–80; 26
R.R. 90–97). During the guilt/innocence stage, his mother testified that Howard has always had
mental problems and that she first began noticing some problems when he was in the 3rd grade.
(23 R.R. 50). Howard was diagnosed with ADHD in the 5th grade. (23 R.R. 50). He started
taking medication for ADHD in the 6th grade, and it calmed him down a bit. (23 R.R. 51). Ms.
Howard testified that Howard had problems in class at times because of his ADHD. (23 R.R.
51). When Howard was in the 7th or 8th grade, they began to see Dr. Laine who diagnosed
Howard with depression. (23 R.R. 51). Dr. Laine prescribed Pamelor, but later switched
Howard to Prozac. (23 R.R. 52). Ms. Howard testified that Howard took the medication and his
behavior became better.

(23 R.R. 52).

Howard stopped seeing Dr. Laine in October or

November of 1996 after Dr. Laine moved from the area. (23 R.R. 52). His mother made an
appointment for Howard with a psychiatrist in Beaumont, Dr. Ned Groves, but Howard would
not go. (23 R.R. 52–53). When Howard was sixteen years old, his mother learned that Howard
was getting more disruptive in his afternoon classes and that he was not taking his 12:00 p.m.
medication. (23 R.R. 53). She tried to have Howard hospitalized in order to get him back on his
medication, but Howard refused to sign the papers to commit himself. (23 R.R. 53). Ms.
12

Howard stated that she was told Howard had to voluntarily admit himself to the hospital or else
she had to go to a county judge and say Howard was threatening to harm himself or others. (23
R.R. 54).
Ms. Howard further testified that as time passed, her son’s mental condition worsened.
(23 R.R. 54). When the family would be watching television, Howard would spontaneously
laugh out loud for no apparent reason and did so on other occasions. (23 R.R. 54–55). Howard
would sit and rock, but would bend his whole body like an autistic child. (23 R.R. 55). Ms.
Howard stated that the biggest difference she noticed was the decline in Howard’s personal
hygiene. (23 R.R. 56). She described Howard as a very clean and neat child who starched and
ironed his jeans or shorts every day. (23 R.R. 55). More recently, he wore an old wool hat on
his head in summertime, did not change his clothes or wash his clothes for days, and he did not
take baths. (23 R.R. 55). The family had to repeatedly ask Howard to take a bath until he
eventually did so. (23 R.R. 55). Ms. Howard testified that her son went from always willing to
talk with her to where he only answered “yes” or “no,” and even that had stopped. (23 R.R. 56).
When Howard was placed in the homebound program, he went to live with his grandfather
because he could make sure that Howard got up in the morning and took his medications. (23
R.R. 56–57). Howard was also there to help his grandfather, who is legally blind and has
arthritis. (23 R.R. 57).
At the punishment stage, Shirley Howard identified pictures of her son as he was growing
up. (26 R.R. 90–93; 33 R.R. at DX-2 to DX-6). She also identified five sports trophies of

13

Howard’s when he made All Stars in baseball and basketball. (26 R.R. 93–94; DX-7 to DX-11).
Ms. Howard additionally testified about a fight Howard got into with another inmate while she
was visiting him at jail on January 4, 2001. (26 R.R. 94–96). Howard had been looking at his
mother during the visitation, but then looked away and started mumbling something. (26 R.R.
95). Ms. Howard asked what he had said, but Howard did not respond and turned away. (26
R.R. 95). She heard Howard saying, “What did you say? I told you to leave my stuff alone,”
then saw him jump up, go to the far end of the visitation room, stand over one of the other
inmates, and heard him keep saying, “What did you say to me?” (26 R.R. 95). By the time the
jailer came, Howard had hit the other inmate. (26 R.R. 95). Ms. Howard testified that there
have been times when she is speaking to Howard but he does not respond and looks past her.
(26 R.R. 95–96). Finally, Ms. Howard testified that she told school officials that Howard told
her on one occasion that he heard voices. (26 R.R. 96).
Sheanna Howard, Howard’s sixteen-year-old sister, testified at both stages of trial. (23
R.R. 17–26; 26 R.R. 88–89). During the guilt/innocence stage, Miss Howard testified that her
brother had always had problems mentally. (23 R.R. 18). On some occasions, he did not take
baths and that was not like him to do so. (23 R.R. 18). She agreed that Howard would go for
long periods of time without bathing and that her family would have to tell him to take a bath.
(23 R.R. 18). Miss Howard denied noticing anything unusual about how Howard would eat. (23
R.R. 19). At the punishment stage, Miss Howard testified that she knows her brother is charged

14

with a very serious offense, the jury could kill him or give him life, she loves her brother, and
she prays for both families. (26 R.R. 88–89).
Pamela Fulton, Howard’s cousin, testified at the guilt/innocence stage that she has lived
in Silsbee, Texas, all her life. (23 R.R. 2–3). She stated that she has seen Howard’s different
mental states over his life and noticed recently that Howard would sit alone, talking and laughing
to himself. (23 R.R. 3). Ms. Fulton testified that Howard would do this at her house, at his
grandfather’s house, and while standing outside on the corner. (23 R.R. 3). According to Ms.
Fulton, Howard’s behavior had started to concern the family. (23 R.R. 3).
Jerry Howard, Jr., Howard’s older brother, testified at the guilt/innocence stage that he
played basketball, baseball, and football; that Howard played the same sports he did; and that
Howard tried to follow him sometimes and do the same things he did. (23 R.R. 27). He agreed
that his brother had always had some sort of problem, even when he was really young. (23 R.R.
27–28). Howard was on medication for a long time, sometimes their mother had to force
Howard to take his medication, and she gave Howard’s medication to the school nurse to make
him take it. (23 R.R. 28). He recalled that Howard sometimes wore the same clothes for weeks
and would not wash them, and that he gave Howard clothes to wear but Howard would not put
them on. (23 R.R. 28). Jerry Howard testified that he would sometimes drive around with
Howard and talk, but Howard would just sit there and not say anything in response. (23 R.R.
28–29). He agreed that the family was starting to become concerned about Howard’s behavior.
(23 R.R. 29).

15

R. C. Kyles, Howard’s eighty-four-year-old grandfather, testified at the guilt/innocence
stage that he has eleven grandchildren and loves them all, but is the closest to Howard. (23 R.R.
82–83). He said he felt that way because Howard never could explain himself or defend himself,
and other kids would blame Howard for things he did not do. (23 R.R. 83). Mr. Kyles testified
that Howard lived with him. (23 R.R. 83). He stated that Howard had a small room air
conditioner and two oscillating fans and sometimes would have them all turned on, but then
Howard would also turn the big heater on and have it blasting at the same time. (23 R.R.
84–85). If Mr. Kyles was woken up by loud music on Howard’s record player, he would go into
Howard’s room to turn the music down and would cutoff the heater. (23 R.R. 85).
(b)

Howard’s behavior the night before the capital crime.

Several of Howard’s family members testified regarding his unusual behavior on May 11,
2000, the night before the murder, including his mother (23 R.R. 57–69), grandfather (23 R.R.
85–88), brother Jerry (23 R.R. 29–39), sister Sheanna (23 R.R. 19–22), and cousin Pamela
Fulton (23 R.R. 3–10).
Generally, these individuals testified that Howard’s grandfather, Mr. Kyles, called 911 to
report that Howard had taken one of Mr. Kyles’ guns and fired it inside his residence. (23 R.R.
19, 59, 84). Mr. Kyles testified that he was afraid of his grandson that night and that Howard’s
skin color had changed, his eyes were big and white, and his eyes had rolled up into the back of
his head. (23 R.R. 84). When the police arrived at Mr. Kyles’ home, Howard was not present.
(23 R.R. 19). Howard’s family did not want Howard arrested, but wanted help finding him

16

because they were concerned that he had a gun. (23 R.R. 61). The police officers left, but said
they would look for Howard while they were on patrol. (23 R.R. 60). Howard came back to the
residence after the police had gone, looking wild eyed. (23 R.R. 19, 62–63). Family members
tried to keep Howard distracted while they called the police. (23 R.R. 20, 62–66). No officer
appeared and the family did not call the police again. (23 R.R. 21, 66).
Howard’s brother, Jerry, testified that when he arrived at their grandfather’s house, he
talked with Howard to try to calm him down but Howard was “in his own world.” (23 R.R.
31–33).

Shirley Howard told Jerry to take Howard away from the house because their

grandfather was afraid. (23 R.R. 33). Pamela Fulton testified that Howard looked filthy and
kept scratching himself, so she suggested they take him to her house so he could take a bath. (23
R.R. 8). Jerry got some clean clothes for Howard and told him to go take a bath, but Howard
just stood there so Jerry turned on the water for him. (23 R.R. 35). When Jerry went to check on
Howard’s progress, he found him standing in the shower fully clothed, with the water running,
and acting like he was rubbing himself with soap. (23 R.R. 9, 37). Jerry told his brother to get
cleaned up because he was going to get a girl over there for him, and Howard agreed to do so.
(23 R.R. 38–39). Jerry ended up taking Howard and a cousin out driving until about 3:00 a.m.,
then dropped them both off at the cousin’s house. (23 R.R. 45). Howard’s mother testified that
the following day, she was planning on talking with a judge to have Howard committed to a
mental hospital because she felt he was a danger to himself and others. (23 R.R. 68–69).

17

2.

Testimony of friends and peers.

Lisa Sanchez, Howard’s 4th grade teacher, testified for the defense at both stages of trial.
(22 R.R. 6–9; 25 R.R. 146–56). During the guilt/innocence stage, Ms. Sanchez testified that
when Howard was her student, she taught a self-contained classroom, which meant all
subjects, all day long. (22 R.R. 8). Ms. Sanchez testified that she knows Howard very well and
had known him and his mother before Howard ever became her student because her husband
coached him in Little League the year before. (22 R.R. 9). Howard sometimes came to their
home after school and played with their pets. (22 R.R. 9). Ms. Sanchez described Howard as “a
very outgoing child, very busy, [who] had difficulty staying in his seat and completing his work.
Mostly a happy-go-lucky child, but sometimes easily agitated.” (22 R.R. 9). Howard started
taking medication for ADHD when he was in her class, and she saw his mental state both on and
off medication. (22 R.R. 9).
At the punishment stage, Ms. Sanchez testified that she taught a transition classroom
where it was her job to work with students in math and reading to help bring them up to grade
level. (25 R.R. 147). Howard was in her class because he had some learning difficulties, was
below grade level, and had problems staying in his seat and getting his work done. (25 R.R.
147–48). Ms. Sanchez testified that Howard did not particularly like math and it took him a
while to get his work done. (25 R.R. 149).

As a reward, she frequently let Howard sit

underneath the table beside her desk where it was quiet and he could finish his work. (25 R.R.
149). Ms. Sanchez further testified that Howard would come to their home and play with their

18

Dalmatians, that he loved the dogs and drew pictures of himself and the dogs, and his pictures
were hung up on the walls at school. (25 R.R. 150).
Michael Sanchez, Lisa Sanchez’s husband, also testified at both stages of trial. (22 R.R.
10–12; 25 R.R. 141–45). At the guilt/innocence stage, Mr. Sanchez testified that he was
Howard’s Little League baseball coach when Howard played on the team for eight year olds.
(22 R.R. 8). By his account, Howard was a very good athlete and they played him everywhere,
from outfield to infield to pitcher. (22 R.R. 11).
Mr. Sanchez testified that when Howard was on his team, it was prior to his taking
medication. (22 R.R. 11). Howard had a hard time focusing on the repetitive drills like batting
practice, but he was very eager and very excited to play. (22 R.R. 12). The coaches tried to
make it as fun as possible but also wanted everyone to learn, and they had a hard time keeping
Howard on task. (22 R.R. 12). Mr. Sanchez testified that after Howard was medicated, his
behavior settled down. (22 R.R. 12). He witnessed the positive change in Howard’s behavior
first hand when he accompanied his wife’s class on a field trip the following year. (See 22 R.R.
12).
During the punishment stage, Mr. Sanchez testified that he first met Howard when he was
coaching Howard’s older brother, Jerry, and Howard would come out to the practices and ball
games to watch his brother play. (25 R.R. 142). He described Howard as “very rambunctious,
very excitable” and that he seemed to have a lot of nervous energy. (25 R.R. 143). Mr. Sanchez

19

testified that he and Howard got along pretty well, that Howard came to the Sanchezes’ home a
few times, and that Howard was respectful. (25 R.R. 144).
Joel Neely, a civil structural engineer at DuPont, also testified for the defense at both
stages of trial. (22 R.R. 13–16; 26 R.R. 70–75). During the guilt/innocence stage, Mr. Neely
stated that he coached Little League baseball, softball, and basketball in Silsbee. (22 R.R. 14).
He remembered Howard as probably one of the top three pitchers on his team and described
Howard as a “game winner” and a “real good athlete.” (22 R.R. 15). Mr. Neely testified that
most of the time, Howard was just one of the regular kids who liked to play baseball and have
fun. (22 R.R. 15–16). However, there were occasions in practice when he could tell that
Howard was not really motivated and was “not right” that day. (22 R.R. 16). Mr. Neely agreed
that Howard’s behavior was stabilized on medication, but when Howard did not take his
medication, his behavior became erratic. (22 R.R. 16).
At punishment, Mr. Neely testified that Howard played on his Rangers team when he was
ten or eleven years old. (26 R.R. 71). Mr. Neely had seen Howard play, knew he was a good
athlete, and wanted him on his team. (26 R.R. 72). He swapped one of his team’s players for
Howard’s older brother Jerry, who was a catcher, knowing that he would get Howard as a pitcher
in a year or two because brothers get to play on the same team. (26 R.R. 72). Mr. Neely
testified that the Howard brothers were always at practice and always had their gear, and he
never had to worry about them being late. (26 R.R. 73). After all these years, Mr. Neely still
had fond memories of Howard. (25 R.R. 73).

20

Lola Thomas, a nurse manager at Christus St. Elizabeth Hospital, testified at the
guilt/innocence stage. (22 R.R. 17). She stated that she had known Howard all his life and
noticed his behavior changing over the last four or five years. (22 R.R. 18). Ms. Thomas
described Howard as having become very withdrawn and isolated, and that he separated himself
from his friends. (22 R.R. 19). Based on her training and experience as a nurse, she believed
that Howard’s behaviors were symptomatic of someone with mental problems. (22 R.R. 19).
Milton Young testified at the guilt/innocence stage that he had lived in Silsbee for the
past twenty years, he knows the Howard family, and has known Howard since he was a little
boy. (23 R.R. 13). About two weeks before the murder, Mr. Young saw Howard walk down the
road and just stand there at the corner staring at folks. (23 R.R. 14). Mr. Young figured that
Howard “had a little problem,” so he talked to the Chief of Police because he figured that
Howard needed some help. (23 R.R. 14–15).
Deputy Sherry Harrison, a jailer with Hardin County Sheriff’s Department, testified at
the punishment stage that Howard was the type of inmate who would follow directions, Howard
followed her directions, and she never had any personal problems with him. (25 R.R. 135–36).
Deputy Tyre Thomas, a jailer with the Hardin County Sheriff’s Department, testified at
the punishment stage that he went to church with Howard when they were young, and he played
baseball with Howard’s older brother, Jerry. (25 R.R. 137–38). The deputy saw Howard at the
jail and had contact with him. (25 R.R. 138). Deputy Thomas testified that Howard acted
differently from how he did years ago—he now talks to himself, has mood swings, and does not

21

take a bath or brush his teeth unless he is told to do so. (25 R.R. 138). He also testified that he
had not had any problems with Howard like fighting at the jail. (25 R.R. 140).
William Bass testified at the punishment stage that he works for the Westvaco paper mill
in Evadale. Mr. Bass testified that he was tired because he had been up for about twenty-four
hours and, despite being tired, he wanted to come to court to make a statement for Howard. (26
R.R. 75–76). Mr. Bass knew Howard from Little Dribblers, the Little League basketball team.
(26 R.R. 76). He stated that he has four sons and the next-to-the-youngest son was Howard’s
classmate and they played basketball together. (26 R.R. 77). According to Mr. Bass, when
Howard got the basketball in his hands, everyone knew he was going to score and that is how the
team won games. (26 R.R. 76). Mr. Bass was not a coach but just a parent who watched the
kids play. (26 R.R. 77). Mr. Bass stated that he had sympathy for the victim’s family and
wished he could turn back the hands of time but also felt sorry for both the victim and for
Howard. (26 R.R. 77).
Tonya Moffett, Howard’s first cousin, testified at the punishment stage that she works at
Helena Laboratories in Beaumont. (26 R.R. 78). She stated that in February 1989, Howard was
a junior groomsman in her wedding and that he had always treated her with courtesy. (26 R.R.
79). Ms. Moffett understood that Howard’s jury could give him the death penalty and stated that
both families were in her prayers. (26 R.R. 79).
Sandra Johnson testified at punishment that she works as a correctional officer at the
Stiles Unit in Beaumont, Howard’s mother and grandmother are her neighbors, and she has

22

known Howard ever since his mother brought him home from the hospital as a baby. (26 R.R.
80–81). She understood the jury could give Howard life or death, and had sympathy for the
other family. (26 R.R. 81).
Denise Young testified at the punishment stage that she works in office administration for
a Home Improvement warehouse. (26 R.R. 82). She stated that she has known Howard since he
was about five years old. (26 R.R. 83). She understood the jury could give Howard life or
death, she had sympathy for the victim’s family, and said they were in her prayers. (26 R.R. 83).
Iby G. Young testified at punishment that she was fourteen years old and a “pretty good
student” at Silsbee High School. (26 R.R. 84). Her mother is Denise Young, the witness who
testified just before her. (26 R.R. 84). Ms. Young stated that she knew Howard “because he
used to come around my house and visit a lot and he used to come play with me and my
brother.” (26 R.R. 85). She testified that Howard told her to “always try my best and succeed at
whatever I do” and “don’t let anyone tell me that I can’t do or be anything I want to be in life.”
(26 R.R. 85). Ms. Young understood that the jury could give Howard life or death, and would
pray for both families. (26 R.R. 85).
Keesha McKinney testified at the punishment stage that she is the twenty-two-year-old
daughter of Sandra Johnson, who testified earlier in the penalty phase. (26 R.R. 86–87). She
stated that she has known Howard since childhood and they grew up together. (26 R.R. 87).
Ms. McKinney testified that they played everything together, including kickball, baseball, and
volleyball. (26 R.R. 87). Her aunt had a field right next to her house and all the neighborhood

23

kids would come down there and play. (26 R.R. 87). Ms. McKinney always liked having
Howard on her team because he could hit good, kick good, and they would win the game when
Howard came to bat. (26 R.R. 87). She understood Howard could get life or death, and she
prayed for both families. (26 R.R. 87–88).
3.

Testimony of expert witnesses.

Dr. James Duncan, a clinical psychologist, testified for the defense at the guilt/innocence
stage. (21 R.R. 18–44).7 He was appointed by the trial court to conduct a mental status
examination of Howard. (21 R.R. 25). On March 8, 2001, Dr. Duncan interviewed Howard for
an hour-and-a-half to two hours at the Hardin County Jail and assessed his mental functioning,
emotional functioning, intellectual functioning, concentration, and memory. (21 R.R. 20–21).
He also provided a written report of his evaluation. (34 R.R. at DX-1). Dr. Duncan found
Howard’s level of functioning to be inconsistent, i.e., he sometimes gave coherent responses but
other times gave unintelligible or inappropriate responses. (21 R.R. 23–24). He testified that
Howard would suddenly smile or chuckle when there was no obvious reason for the response.
(21 R.R. 24). Dr. Duncan thought Howard might have been responding to an internal stimulus,
as if he heard voices. (21 R.R. 25). He also expressed his concern about Howard’s ability to
maintain concentration and found evidence of flattening or inappropriate affect. (21 R.R. 25).
Dr. Duncan’s intellectual assessment of Howard was that he operates at a borderline to mildly
impaired level of functioning. (21 R.R. 26). In his opinion, Howard had some deterioration in
7

Dr. Duncan’s testimony caused the trial to be held in recess to determine if Howard was competent to proceed. (21
R.R. 49–51). Dr. Duncan also testified for the defense during both trials on competency. (29 R.R. 61–84; 31 R.R.
100–36).
24

intellectual functioning which could be due to an organic condition like a blow to the head or a
brain tumor, or else a biological condition like schizophrenia which usually occurs in late teens
and early twenties.

(21 R.R. 26–27).

Given Howard’s age and the nature of symptoms

displayed, Dr. Duncan thought Howard may well be exhibiting an emerging thought disorder,
possibly schizophrenia. (21 R.R. 27–29). Dr. Duncan testified that Howard appeared to be in
need of psychiatric treatment, and that he had questions about Howard’s competency to stand
trial. (21 R.R. 29, 41–42). He also spoke to one of the jailers who had observed Howard and
learned that his observations of Howard’s behavior were consistent with his own. (21 R.R. 40).
Dr. Fred Fason, a psychiatrist, testified at the punishment stage regarding his mental
health evaluation of Howard. (26 R.R. 9–69). Dr. Fason interviewed Howard twice, the first
time in February 2001. (26 R.R. 20). When he began to administer one of the psychological
tests, Howard did not know some of the words in the first few questions. (26 R.R. 22). Dr.
Fason testified that this caused him to conclude that Howard could not read at the 6th grade
level and questioned whether he was intellectually disabled. (26 R.R. 22–23).
After reviewing Howard’s school records, Dr. Fason discovered, however, that Howard
had started out as a “really bright student.” (26 R.R. 24). Howard was in the 90% in math in
2nd grade, but had dropped to the 30% in the 5th grade. (26 R.R. 24). Dr. Fason testified that
“it was as if some malignant process started affecting [Howard’s] brain because he went
downhill from there.” (26 R.R. 25). Dr. Fason theorized that Howard’s declining performance
in school was due to the onset of schizophrenia. (26 R.R. 27). He reviewed Dr. Duncan’s report

25

and testing materials, and testified that some of the behaviors observed by Dr. Duncan were
characteristic of schizophrenic disorder. (26 R.R. 26). These included poverty of thought,
inappropriateness of affect, and loose associations when Howard was pressed on questioning.
(26 R.R. 26–27, 30–33). Dr. Fason believed that Howard’s diagnoses of ADHD and depression
during adolescence were more consistent with schizo-affective schizophrenia, and that Howard
possibly should have been hospitalized. (26 R.R. 33–34). Dr. Fason called Howard’s physician,
Dr. Laine, in Florida, conferred with him about the possibility of schizophrenia, and reported
that Dr. Laine thought, in retrospect, that Howard might have had a schizo-affective disorder or
prodromal schizophrenia. (26 R.R. 28, 36).
Dr. Fason did not agree with testimony provided at the guilt/innocence stage by the
State’s expert, Dr. Edward Gripon, that Howard’s behaviors were indicative of antisocial
personality disorder and instead believed Howard’s lack of caring was more consistent with
depression. (26 R.R. 57, 65–66). Dr. Fason also testified about medicines used for treating
patients with schizophrenia and stated that newer, atypical anti-psychotic medications are
becoming available. (26 R.R. 60).
C.

The State’s case in rebuttal.
Dr. Edward Gripon, a psychiatrist with twenty-six years experience, testified for the State

during its case in rebuttal at both stages of trial. (23 R.R. 92–117; 26 R.R. 98–117). In addition
to giving his opinion that Howard was not insane at the time of the crime, Dr. Gripon testified at
the guilt/innocence stage that many of the symptoms or behaviors attributed to Howard—such as

26

having wild eyes, flat affect, depression, talking to himself, poor hygiene, and laughing
inappropriately—are symptoms of using crack cocaine. (23 R.R. 99–104). Dr. Gripon also
found no evidence of Howard having a substantial mental illness or thought disorder when he
clinically evaluated Howard in April 2001. (23 R.R. 104). Dr. Gripon stated that Howard’s
records contained one reference to Howard being clinically depressed five years ago, but Dr.
Gripon did not find evidence of clinical depression when he evaluated Howard prior to trial. (23
R.R. 106–07).
During the punishment stage, Dr. Gripon testified for the State that Howard was not
suffering from schizophrenia, but instead has antisocial personality disorder. (26 R.R. 101–08).
He reported that Howard was diagnosed with ADHD in 1993 and treated until 1996; that
Howard’s behavior improved and his grades were satisfactory when he took medication; and that
when Howard was noncompliant, his grades declined and his behavior deteriorated. (26 R.R.
100–01). Based on his review of Howard’s school records, Dr. Gripon did not find anything to
indicate that Howard was suffering from the early signs of schizophrenia. (26 R.R. 101). Dr.
Gripon explained that in making a mental health diagnosis in 2000, such diagnosis must be
based on the DSM-IV criteria—not psychological literature like that relied on by Dr. Fason. (26
R.R. 107). To be diagnosed with schizophrenia under the DSM-IV, a person must have two of
the four criteria and must exhibit those behaviors consistently over a thirty-day period. (26 R.R.

27

107). Dr. Gripon testified that Howard does not suffer from schizophrenia because, although he
does have flat affect, he does not exhibit any of the other three DSM-IV criteria.8 (26 R.R. 107).
Ken Thompson, a criminal investigator with the special prison prosecution unit, testified
regarding the different types of prison settings for persons convicted of capital murder versus
those convicted of murder and receiving a life sentence. (26 R.R. 117–121, 124–25). He also
testified about prison gangs such as the Crips, how they recruit members, and the types of illegal
activities that gangs are involved in within prisons. (26 R.R. 121–24). Finally, the State
presented victim impact testimony from Joann Swartout, the victim’s mother, and Jennifer
Buckley, a niece. (26 R.R. 129–37).
At the close of the punishment hearing, the jury answered the special issues on future
dangerousness and mitigation in a manner which required the trial court to assess Howard’s
punishment at death by lethal injection. (27 R.R. 61–63; 3 C.R. 573–77, 601–04).
D.

Findings of Fact and Conclusions of Law
In addition to reviewing the evidence presented during Howard’s capital trial, the Court

reviews the Findings of Fact, Conclusions of Law and Order of the 356th District Court of Hardin
County, Texas. The state habeas court findings are relevant to the issues of exhaustion and
ineffective assistance of counsel. The state habeas court found:

8

According to the DSM-IV, the criteria for schizophrenia is two (or more) of the following: (1) delusions, (2)
hallucinations, (3) disorganized speech (e.g., frequent derailment or incoherence), (4) grossly disorganized or catatonic
behavior, or (5) negative symptoms, (i.e., affective flattening, alogia (poverty of speech), or avolition (lack of motivation)
each present for a significant portion of time during a 1-month period. DSM-IV Criteria for Schizophrenia, DNA
Learning Center, http://www.dnalc.org/view/ 899-DSM-IV-Criteria-for-Schizophrenia.html%20 (last visited July 18,
2018).
28

1.

The applicant, Jamaal Howard, was indicted and convicted of the felony
offense of capital murder in cause number 15114 in the 356th District Court of
Hardin County, Texas.

2.

The applicant was represented during trial by counsel Tyrone Moncriffe.

3.

On the 25th day of April, 2001, after the jury affirmatively answered the first
special issue, and negatively answered the second special issue, the trial court
assessed punishment at death.

4.

The Court of Criminal Appeals affirmed [Howard’s] conviction in a published
opinion delivered October 13, 2004. Howard v. State, 153 S.W.3d 382 (Tex.
Crim. App. 2004).

First Ground for Relief: [Howard’s] execution would violate the Eighth
Amendment’s prohibition against the execution of the mentally retarded.
Findings of Fact
5.

[Howard] was interviewed by Dr. James Duncan, Ph.D., a licensed clinical
psychologist.

6.

During his education years, [Howard] was never placed in any type of class for
students requiring special education.

7.

[Howard] never failed any class nor educational year, and thus was never
required to repeat any class nor educational year.

8.

At the time of the offense sub judice, [Howard] knew the difference between
right and wrong.

9.

[Howard] informed Dr. Duncan that he attempted a robbery in Silsbee, Texas.

10.

[Howard] informed Dr. Duncan that he intentionally shot a woman during the
robbery, that he saw the shot hit her, and that he saw her fall on the floor.

11.

[Howard] informed Dr. Duncan that he took money from the store and ran to
his house.

29

12.

[Howard] informed Dr. Duncan that he committed the offense because he was
attempting to get money.

13.

[Howard] was found to know the difference between right and wrong when he
committed the offense.

14.

[Howard] was able to provide Dr. Duncan with detailed familial history and
denied any type of mental disorder.

15.

[Howard] acted deliberately in committing the offense of capital murder.

16.

[Howard] was subjected to only a portion of an I.Q. examination, which
resulted in only an estimate of [Howard’s] I.Q.

17.

[Howard] began as a bright student in school, but suffered from attentiondeficit disorder, which responded well to medication.

18.

[Howard’s] grades and behavior declined when he refused to take this [sic]
medication for attention-deficit disorder.
Conclusions of Law

19.

[Howard’s] intellectual functioning and behavior are impaired to a slight
degree.

20.

[Howard’s] impairments do not rise to the level of mental retardation, and that
[Howard] is not mentally retarded.

21.

This issue has been previously litigated on direct appeal before the Court of
Criminal Appeals.

22.

The issue of [Howard’s] mental status has been previously litigated at both trial
and direct appeal.

23.

There is no controverted, previously unresolved factual issue material to the
legality of [Howard’s] confinement.

24.

[Howard] is not mentally retarded for purposes of the Eighth Amendment to
the United States Constitution.

30

25.

The execution of [Howard] is not barred by the Eighth Amendment to the
United States Constitution.

Second Ground for Relief: [Howard’s] death sentence violated the Sixth Amendment
under Atkins and Ring, because the jury’s verdict did not include a determination of an
essential element of capital murder that [Howard] is not mentally retarded.
Findings of Fact
26.

[Howard] was indicted for and convicted of the offense of capital murder for
committing the murder of the complainant in the course of committing the
robbery of the complainant.

27.

[Howard] explicitly had no objections to the court’s charge to the jury at the
guilt/innocence phase, which included in its definitions and application
paragraph the essential elements of the offense of capital murder.

28.

[Howard] objected to a portion of the court’s charge to the jury on punishment,
but not regarding the issue of mental retardation.

29.

[Howard] did not request a charge to the jury on the issue of mental
retardation.
Conclusions of Law

30.
31.

[Howard] is procedurally barred from raising such a contention on habeas as he
did not object to the trial court’s charge to the jury on the basis that it did not
contain an issue of mental retardation.

32.

The jury is not required to explicitly find [Howard] is not mentally retarded.

32.9

9

Mental retardation is not an essential element of the offense of capital murder.

[Howard’s] sentence of death does not violate the Sixth Amendment to the
United States Constitution.

The misnumbering is in the original document. (See Supp. SHCR 26–27).
31

Third Ground for Relief: [Howard] was denied a fair and impartial jury trial because
of competing actual conflict of interests during his trial.
Findings of Fact
33.

[Howard] was previously represented by counsel who, at the time of the trial
herein, was an Assistant District Attorney for Hardin County, Mr. Henry A.
Coe, III.

34.

Coe’s representation of [Howard] was prior to his employment as a Hardin
County Assistant District Attorney.

35.

Coe had no independent memory of having met nor spoken to [Howard] during
his short representation of [Howard].

36.

After learning of his previous representation of [Howard], Coe had no further
involvement in the prosecution of [Howard] herein.

37.

Coe did not possess any confidential information which could be used against
[Howard] in the prosecution for capital murder.

38.

[Howard] did not object to Coe representing the State of Texas if the
extraneous offense in which Coe did represent [Howard] was not used as an
extraneous offense herein.

39.

[Howard’s] trial counsel was initially retained to represent [Howard] herein.

40.

During the pendency of the trial, [Howard] became indigent and the court
appointed [Howard’s] trial counsel to continue his representation herein.
Conclusions of Law

41.

The court finds there was no conflict between [Howard’s] previous
representation by Henry A. Coe, III, and Coe’s employment as a Hardin
County Assistant District Attorney.

42.

The court finds there was no conflict between [Howard] and his trial counsel.

43.

The court finds [Howard] was not denied a fair and impartial trial.

32

Fourth Ground for Relief: [Howard’s] constitutional rights pursuant to the Eighth
and Fourteenth Amendments to the United States Constitution were violated by the
application of Article 37.071, Tex. Code Crim. Proc.
Findings of Fact
44.

[Howard] did not object to the court’s charge given to the jury in punishment,
except for one unrelated issue.

45.

[Howard] did not raise a complaint based upon Art. 37.071. Tex. Code Crim.
Proc. during trial.
Conclusions of Law

46.

The court finds [Howard’s] constitutional rights pursuant to Eighth and
Fourteenth Amendments to the United States Constitution were not violated.

Fifth Ground for Relief: [Howard] was not provided a fair hearing at the
guilt/innocence phase because his attorney provided ineffective assistance of counsel.
Sixteenth Ground for Relief: [Howard’s] trial attorney did not render reasonable
effective assistance of counsel at the most crucial state of [Howard’s] trial: the
punishment phase. This failure actually and substantially prejudiced [Howard] in
violation of the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and Art. I, § 10 and § 19 of the Constitution of the State of Texas.
Findings of Fact
47.

[Howard’s] trial counsel presented evidence to the jury regarding [Howard’s]
mental state and claim of mental retardation.

48.

[Howard’s] trial counsel presented expert testimony regarding [Howard’s]
mental state from Dr. James Duncan, Ph.D., a licensed psychologist.

49.

[Howard’s] trial counsel presented non-expert testimony from [Howard’s] prior
educators, coaches, friends, and family all regarding [Howard’s] behavior and
mental capabilities in their individual interactions with him.

50.

[Howard] was provided his Miranda rights by law enforcement prior to
providing his statement.
33

51.

[Howard] was cognizant of what he was doing at the time he gave his
statement.

52.

[Howard] indicated in writing that he was aware of his Miranda rights.

53.

[Howard] did not object to the introduction of his statement into evidence.

54.

[Howard’s] trial counsel cross examined law enforcement as to [Howard’s]
behavior while providing his statement.

55.

[Howard’s] trial counsel cross examined law enforcement as to the
voluntariness of [Howard’s] statement.

56.

[Howard] placed before the jury the issue of [Howard’s] mental issues through
both cross examination of state’s witnesses and direct examination of defense
witnesses.

57.

[Howard] challenged before the jury the voluntariness of [Howard’s] statement
through the cross examination of state’s witnesses.
Conclusions of Law

58.

[Howard’s] statement was given knowingly, intelligently, and voluntarily.

59.

[Howard] was not mentally ill nor mentally retarded.

60.

[Howard’s] trial counsel’s performance did not fall below an objective standard
of reasonableness.

61.

[Howard’s] trial counsel’s performance was not deficient.

62.

[Howard’s] trial performance did not prejudice [Howard’s] defense.

63.

[Howard’s] trial counsel provided effective assistance of counsel.

34

Sixth Ground for Relief: [Howard’s] state and federal constitutional rights were
violated when his statement was taken involuntarily.
Findings of Fact
64.

[Howard] was provided his Miranda rights by law enforcement prior to
providing his statement.

65.

[Howard] was cognizant of what he was doing at the time he gave his
statement.

66.

[Howard] indicated in writing that he was aware of his Miranda rights.

67.

[Howard] did not object to the introduction of his statement into evidence.

68.

[Howard’s] trial counsel cross examined law enforcement as to [Howard’s]
behavior while providing his statement.

69.

[Howard’s] trial counsel cross examined law enforcement as to the
voluntariness of [Howard’s] statement.
Conclusions of Law

70.

[Howard’s] state and federal constitutional rights were not violated as
[Howard’s] statement was provided intentionally, knowingly, and voluntarily.

Seventh Ground from Relief: [Howard] was denied effective assistance of counsel
on his appeal.
Findings of Fact
71.

[Howard’s] appellate counsel raised nine grounds of error on direct appeal.

72.

Two justices dissented to the affirmation of the conviction herein by the Court
of Criminal Appeals.

73.

The Court finds [Howard’s] appellate counsel raised the errors which were
arguably supported by the record.

35

74.

The Court finds the performance of [Howard’s] appellate counsel was not
deficient.

75.

The Court finds that [Howard] was not prejudiced by his appellate counsel’s
actions.
Conclusions of Law

76.

[Howard] received effective assistance of counsel on direct appeal.

Eighth Ground for Relief: [Howard] was denied due process and a fair and
impartial jury trial because of jury misconduct.
Findings of Fact
77.

The Court finds that [Howard] does not claim that any individual juror
obtained knowledge about his competency, and that knowledge affected any
individual juror’s deliberations.

78.

The Court finds that [Howard] does not claim that any individual juror with
knowledge of [Howard’s] competency shared his independent knowledge with
any other juror.

79.

This Court finds that [Howard] does not claim that the jury was aware of
[Howard’s] competency or that [Howard’s] competency entered into the jury’s
deliberations.

80.

[Howard] does not allege that knowledge of [Howard’s] competency affected
the jury’s verdict in either phase of the trial.

81.

The Court finds that [Howard] has not shown jury misconduct.
Conclusions of Law

82.

[Howard] was not denied due process and did receive a fair and impartial jury,
as there was no jury misconduct.

36

Ninth Ground for Relief: Article 37.071 because it prohibits against informing jurors
that a single holdout juror could cause the imposition of a life sentence violated
[Howard’s] rights under the Eighth and Fourteenth Amendments to the United States
Constitution.
Tenth Ground for Relief: The trial court’s instructions at the punishment phase
undermined the jury’s sense of responsibility for the consequences of its verdict.
Eleventh Ground for Relief: In view of the many different capital sentencing
schemes that have been in operation in Texas since 1989, the Texas death penalty has
been arbitrarily imposed, and thus is unconstitutional under the Eighth Amendment
and Equal Protection Clause of the Fourteenth Amendment.
Twelfth Ground for Relief: The death penalty, at least as presently administered in
Texas, is cruel and unusual punishment under the Eighth and Fourteenth Amendments
to the United States Constitution.
Fifteenth Ground for Relief: The Texas capital murder sentencing statute’s
definition of “mitigation evidence” is facially unconstitutional because it limits the
Eighth Amendment concept of “mitigation” to factors that render a capital defendant
less morally “blameworthy” for commission of the capital murder.
Findings of Fact
83.

The Court finds that [Howard] did not object to the Texas death penalty
scheme or the jury charge at punishment on the basis that the trial court
allegedly misinformed the jury as to the effect of a single juror’s vote at
punishment, and [Howard] did not request a jury instruction on such a basis.

84.

The Court finds that the trial court instructed the jury at punishment that if any
juror had a reasonable doubt as to whether the answer to a special issue should
be “yes,” then such juror should vote “no;” and, that only if ten or more jurors
vote “no” to a special issue, the answer to the jury shall be “no” to that issue.

85.

The Court finds that [Howard] did not object that the Texas death penalty was
arbitrarily imposed in the case at bar.

37

Conclusions of Law
85.

Because [Howard] neither objected to the Texas death penalty scheme or the
trial court’s instructions on the basis that the trial court allegedly misinformed
the jury as to the effect of a single juror’s vote at punishment nor requested a
charge on such basis, [Howard] is procedurally barred from asserting such
contention on habeas.

86.

In the alternative, the Texas death penalty scheme does not unconstitutionally
mislead the jury as to the effect of a single “no” vote at punishment. [Howard]
fails to show that the provisions of Art. 37.071, Tex. Code Crim. Proc., violate
[Howard’s] rights pursuant to the Eighth and Fourteenth Amendments to the
United States Constitution.

Thirteenth Ground for Relief: [Howard’s] prosecution, conviction and sentence
were the products of improper considerations of race.
Findings of Facts
87.

The Court finds that [Howard] did not object at trial to the prosecution,
conviction, nor sentencing of him as being based upon the considerations of his
race, African-American.

88.

The Court finds that [Howard] stated in the hearing on his motion for new trial
that the number of African-Americans called for jury service comports with the
percentage of African-Americans in Hardin County, Texas.

89.

The Court finds that [Howard] stated in the hearing on his motion for new trial
that the number of African-Americans called on the venire panel from which
his jury was selected comported with the number of African-Americans called
for jury service in prior years.

90.

The Court finds that the number of African-Americans called for jury service
in the trial herein was a fair cross section of the Hardin County community, as
stated by [Howard].

38

Conclusions of Law
91.

Because [Howard] never objected to the prosecution, conviction, nor
sentencing of him as being based upon considerations of his race, [Howard] is
procedurally barred from asserting such contention on habeas.

92.

Alternatively, because [Howard] stated that the number of African-Americans
called for jury service comports with the percentage of African-Americans in
Hardin County, Texas, and with the number of African-Americans called for
jury service in prior years, [Howard] is barred from asserting his prosecution,
conviction, or sentencing was based upon consideration of his race on habeas.

Fourteenth Ground for Relief: The due process clause of the Fourteenth
Amendment to the Constitution of the United States requires a proportionality review
of death penalty verdicts by reviewing courts.
Findings of Fact
93.

The Court finds that the Court of Criminal Appeals has consistently rejected
proportionality reviews of death penalty sentencings.

94.

The Court finds [Howard] has presented nothing to distinguish this cause from
other identical claims of proportionality reviews.
Conclusions of Law

95.

[Howard’s] claims of proportionality review is not cognizable on habeas.

Seventeenth Ground for Relief: [Howard] was denied the right to a fair and impartial
jury trial.
Findings of Fact
96.

[Howard] voluntarily absented himself from a portion of voir dire based upon
his trial counsel’s advice.

39

Conclusions of Law
97.

Because [Howard] cannot create reversible error based upon his own actions,
[Howard] is barred from asserting that his voluntary absence from a portion of
individual voir dire denied him a fair and impartial jury trial on habeas.

98.

Alternatively, because [Howard] did not object to the trial court that his
absence during a portion of the individual voir dire denied him a fair and
impartial jury trial, he is procedurally barred from rising such a contention on
habeas.

Eighteenth Ground for Relief: [Howard’s] conviction and death sentence violated
the Due Process Clause of the Fourteenth Amendment to the United Sates
Constitution because [Howard] was incompetent to stand trial.
Nineteenth Ground for Relief: [Howard’s] conviction and death sentence violate the
due process clause of the Fourteenth Amendment to the United States Constitution
because the trial court failed to conduct a sua sponte examination into [Howard’s]
competency to stand trial.
Findings of Fact
99.

Dr. James A. Duncan, Ph.D., a licensed psychologist, raised the issue of
competency to stand trial during his testimony.

100.

The trial court ordered the District Clerk of Hardin County to immediately
summon a panel of jurors to determine the issue of [Howard’s] competency.

101.

The trial court ordered the Sheriff of Hardin County, Texas, to personally serve
the summoned jurors to appear the following morning.

102.

[Howard] specifically stated he had no objection to the procedure.

103.

A competency hearing was conducted before a jury, which ended in an agreed
mistrial when the jury could not reach a conclusion as to competency.

104.

The trial court then summoned another jury panel without objection by
[Howard].

105.

The second jury found [Howard] to be competent to stand trial.
40

Conclusions of Law
106.

As a competency hearing was conducted before a jury to verdict, and [Howard]
was found to be competent to stand trial, his conviction and death sentence
does not violate the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.

Twentieth Ground for Relief: [Howard’s] conviction and death sentence violates the
Due Process Clause of the Fourteenth Amendment to the United States Constitution
because [Howard] is incompetent to meaningfully participate or assist counsel in
seeking relief under this application for post-conviction writ of habeas corpus.
Findings of Fact
107.

[Howard] has not demonstrated that he is incompetent, and therefore cannot
assist his habeas counsel.

108.

[Howard] has not shown that it is required that he be competent to assist his
habeas counsel.
Conclusions of Law

109.

Because there is no requirement that an applicant be competent to assist his
counsel in filing a post-conviction writ of habeas corpus, [Howard’s] claim is
not cognizable, and [Howard] is procedurally barred from raising such
contention on habeas.

Twenty-first Ground for Relief: [Howard’s] execution will violate the prohibition
against cruel and unusual punishment under the Eighth Amendment to the United
States Constitution because [Howard] is incompetent to be executed.
Twenty-second Ground for Relief: The infliction of [Howard’s] death sentence
violates the common law prohibition against executing those persons who are
mentally incompetent.
Findings of Fact
110.

[Howard] is under a death sentence; however, no execution date has been
scheduled.

41

111.

[Howard] has previously been found to be competent.

112.

[Howard] has provided nothing to demonstrate he is incompetent to be
executed.

113.

The previous common law prohibition against executing incompetent persons
has been codified by the Texas Legislature as Art. 46.05, Tex. Code Crim.
Proc.

114.

Art. 46.05, Tex. Code Crim. Proc., provides the mechanism for alleging
[Howard] is incompetent to be executed.

115.

[Howard] has not complied with Art. 46.05, Tex. Code Crim. Proc.
Conclusions of Law

116.

Because no execution date has been set for [Howard], [Howard’s] claim is not
ripe for review.

117.

Because there is no common law prohibition against executing incompetent
persons apart from Art. 46.05, Tex. Code Crim. Proc., [Howard] is barred from
raising any contention under common law on habeas.

118.

Because [Howard] has not complied with Art. 46.05, Tex. Code Crim. Proc.,
[Howard] is procedurally barred from raising any contention thereunder on
habeas.

119.

[Howard] fails to demonstrate that his conviction and sentence was unlawfully
obtained.

120.

[Howard] fails to demonstrate that there are any controverted, previously
unresolved factual issues material to the legality of his confinement.

121.

It is recommended to the Texas Court of Appeals that relief be denied.

42

(Supp. SHCR 23–42).

The Texas Court of Criminal Appeals subsequently denied the

application for a writ of habeas corpus “based upon the findings and conclusions of the trial
court and its own review.” Ex parte Howard, 2012 WL 6200688, at *1. (SHCR 2.).
As discussed more fully below, this Court must give deference to the state court’s
findings and conclusions as instructed in § 2254(d), and presume the state court’s factual
findings to be correct unless the petitioner rebuts the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). State court decisions must be given the benefit of the doubt.
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citation omitted).
V. STANDARD OF REVIEW
1.

Section 2254 standards.
The role of federal courts in reviewing habeas corpus petitions by prisoners in State

custody is exceedingly narrow. A person seeking federal habeas corpus review must assert a
violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir.
1993). Federal habeas corpus relief will not issue to correct errors of State constitutional,
statutory, or procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S.
62, 67–68 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996), cert. denied, 520 U.S.
1242 (1997). In the course of reviewing State proceedings, a federal court does “not sit as a
super state supreme court to review error under state law.” Wood v. Quarterman, 503 F.3d 408,
414 (5th Cir. 2007) (citations omitted), cert. denied, 552 U.S. 1314 (2008); Porter v. Estelle, 709
F.2d 944, 957 (5th Cir. 1983), cert. denied, 466 U.S. 984 (1984).

43

The petition was filed in 2013; thus, review is governed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 327 (1997).
Under AEDPA, a petitioner who is in custody “pursuant to the judgment of a State court” is not
entitled to federal habeas corpus relief with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim:
(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). “By its terms § 2254 bars relitigation of any claim ‘adjudicated on the
merits’ in State court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, 562 U.S. 86, 98 (2011). AEDPA imposes a “highly deferential standard for evaluating
state-court rulings, and demands that state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (citation and internal quotation marks omitted).
With respect to the first provision, a “state court decision is ‘contrary to’ clearly
established federal law if (1) the State court ‘applies a rule that contradicts the governing law’
announced in Supreme Court cases, or (2) the State court decides a case differently than the
Supreme Court did on a set of materially indistinguishable facts.” Nelson v. Quarterman, 472
F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540 U.S. 12, 15–16
(2003)), cert. denied, 551 U.S. 1141 (2007). “[R]eview under § 2254(d)(1) is limited to the
record that was before the State court that adjudicated the claim on the merits.” Pinholster, 563
44

U.S. at 180–81. As such, “evidence later introduced in federal court is irrelevant.” Id. at 184.
“The same rule necessarily applies to a federal court’s review of purely factual determinations
under § 2254(d)(2), as all nine Justices acknowledged.” Blue v. Thaler, 665 F.3d 647, 656 (5th
Cir. 2011), cert. denied, 568 U.S. 828 (2012).
With respect to § 2254(d)(2), a Texas court’s factual findings are presumed to be sound
unless a petitioner rebuts the “presumption of correctness by clear and convincing evidence.”
Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (citing 28 U.S.C. § 2254(e)(1)). The “standard is
demanding but not insatiable; . . . [d]eference does not by definition preclude relief.” Id.
(citation and internal quotation marks omitted).
More recently, the Supreme Court held that a “state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Richter, 562 U.S. at 101 (citation omitted). The
Supreme Court has explained that the provisions of AEDPA “modified a federal habeas court’s
role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to
ensure that state-court convictions are given effect to the extent possible under law.” Bell v.
Cone, 535 U.S. 685, 693 (2002). Federal habeas corpus relief is not available just because a
state court decision may have been incorrect; instead, a petitioner must show that a state court
decision was unreasonable. Id. at 694. Furthermore, when a state court provides alternative
reasons for denying relief, a federal court may not grant relief “unless each ground supporting

45

the state court decision is examined and found to be unreasonable under the AEDPA.” Wetzel v.
Lambert, 565 U. S. 520, 525 (2012) (emphasis in original).
2.

Exhaustion of state remedies and procedural default.
The resolution of Howard’s amended petition concerns complex procedural issues

involving exhaustion of state remedies, procedural default, and whether Howard can overcome
the procedural default via Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S.
413 (2013). The analysis of Howard’s claims should begin with a discussion of the exhaustion
requirement.
State prisoners bringing petitions for a writ of habeas corpus are required to exhaust their
state remedies before proceeding to federal court unless “there is an absence of available State
corrective process” or “circumstances exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254(b)(1). In order to exhaust properly, a state prisoner
must “fairly present” all of his claims to the state court. Picard v. Connor, 404 U.S. 270, 275
(1971). In Texas, all claims must be presented to and ruled upon the merits by the Texas Court
of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). When a
petition includes claims that have been exhausted along with claims that have not been
exhausted, it is called a “mixed petition,” and historically federal courts in Texas have dismissed
the entire petition for failure to exhaust. See, e.g., Galtieri v. Wainwright, 582 F.2d 348, 355
(5th Cir. 1978) (en banc).

46

The exhaustion requirement, however, was profoundly affected by the procedural default
doctrine that was announced by the Supreme Court in Coleman v. Thompson, 501 U.S. 722
(1991). The Court explained the doctrine as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.
Id. at 750. As a result of Coleman, unexhausted claims in a mixed petition are ordinarily
dismissed as procedurally barred. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied,
515 U.S. 1153 (1995); see also Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Such
unexhausted claims are procedurally barred because if a petitioner attempted to exhaust them in
state court, they would be barred by Texas abuse-of-the-writ rules. Fearance, 56 F.3d at 642.
The procedural bar may be overcome by demonstrating either cause and prejudice for the
default or that a fundamental miscarriage of justice would result from the court’s refusal to
consider the claim. Id. (citing Coleman, 501 U.S. at 750–51). Dismissals pursuant to abuse of
writ principles have regularly been upheld as a valid state procedural bar foreclosing federal
habeas review. See Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008); Hughes v.
Quarterman, 530 F.3d 336, 342 (5th Cir. 2008), cert. denied, 556 U.S. 1239 (2009); Coleman v.
Quarterman, 456 F.3d 537, 542 (5th Cir. 2006), cert. denied, 549 U.S. 1343 (2007).

47

3.

Application of Martinez and Trevino standards.
Howard’s amended petition couches some of his claims regarding ineffective assistance

of counsel claims in light of Martinez and Trevino. Howard has been given the opportunity to
explore new evidence in order to determine whether trial and state habeas counsel were
ineffective. Based on the arguments presented by Howard, his investigation focused on whether
trial and state habeas counsel discharged their respective duties to uncover and present
mitigating evidence. This endeavor inevitably involves the discovery and presentation of new
evidence that has not been presented to the state courts, particularly the Texas Court of Criminal
Appeals.
Until recently, Howard’s new evidence and claims would have undoubtedly been
dismissed as procedurally barred as an abuse of the writ. The Supreme Court, however, opened
the door slightly for a showing of cause and prejudice to excuse the default in Martinez and
Trevino.

In Martinez, the Supreme Court answered a question left open in Coleman v.

Thompson: “whether a prisoner has a right to effective counsel in collateral proceedings which
provide the first occasion to raise a claim of ineffective assistance at trial.” 566 U.S. at 8 (citing
Coleman, 501 U.S. at 755). The Court held:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar
a federal habeas court from hearing a substantial claim of ineffective assistance of
counsel at trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.
Id. at 17.

48

The Supreme Court extended Martinez to Texas in Trevino. Although Texas does not
preclude appellants from raising ineffective assistance of trial counsel claims on direct appeal,
the Court held that the rule in Martinez applies because “the Texas procedural system—as a
matter of its structure, design, and operation—does not offer most defendants a meaningful
opportunity to present a claim of ineffective assistance of trial counsel on direct appeal.”
Trevino, 569 U.S. at 428. The Court left it to the lower courts to determine on remand whether
Trevino’s claim of ineffective assistance of counsel was substantial and whether his initial state
habeas attorney was ineffective. Id. at 429.
The Fifth Circuit subsequently summarized the rule announced in Martinez and Trevino
as follows:
To succeed in establishing cause to excuse the procedural default of his
ineffective assistance of trial counsel claims, [petitioner] must show that (1) his
underlying claims of ineffective assistance of trial counsel are “substantial,”
meaning that he “must demonstrate that the claim[s] ha[ve] some merit,”
Martinez, 132 S. Ct. at 1318; and (2) his initial state habeas counsel was
ineffective in failing to present those claims in his first state habeas application.
See id.; Trevino, 133 S. Ct. at 1921.
Preyor v. Stephens, 537 F. App’x 412, 421 (5th Cir. 2013), cert. denied, 134 S. Ct. 2821 (2014).
“Conversely, the petitioner’s failure to establish the deficiency of either attorney precludes a
finding of cause and prejudice.” Sells v. Stephens, 536 F. App’x 483, 492 (5th Cir. 2013), cert.
denied, 134 S. Ct. 1786 (2014). The Fifth Circuit reaffirmed this basic approach in Reed v.
Stephens, 739 F.3d 753, 774 (5th Cir.), cert. denied, 135 S. Ct. 435 (2014). The Fifth Circuit has
also reiterated that a federal court is barred from reviewing a procedurally defaulted claim unless

49

a petitioner shows both cause and actual prejudice. Hernandez v. Stephens, 537 F. App’x 531,
542 (5th Cir. 2013), cert. denied, 134 S. Ct. 1760 (2014). To show actual prejudice, a petitioner
“must establish not merely that the errors at his trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Id. (citations omitted) (emphasis in original).
The Fifth Circuit has held that “[t]he exhaustion requirement is not satisfied if the
petitioner ‘presents material additional evidentiary support in the federal court that was not
presented to the state court.’” Lewis v. Quarterman, 541 F.3d 280, 284 (5th Cir. 2008) (quoting
Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000)). A court must accordingly ask whether
a claim is “in a significantly different and stronger evidentiary posture than it was before the
state courts.” Dowthitt, 230 F.3d at 746 (citation omitted).
Howard may proceed with an unexhausted and procedurally barred claim if he can satisfy
the requirements of Martinez and Trevino. The question before the Court is whether Howard has
made the requisite showing under Martinez and Trevino as to each of his applicable claims.
VI. DISCUSSION AND ANALYSIS
Howard alleges his trial counsel provided ineffective assistance of counsel in four out of
his five federal habeas claims, in violation of Strickland v. Washington, 466 U.S. 668 (1984).
Strickland provides a two-pronged standard, and a petitioner bears the burden of proving both
prongs. 466 U.S. at 687.

50

Under the first prong, a petitioner must show that counsel’s performance was deficient.
Id. To establish deficient performance, he must show that “counsel’s representation fell below
an objective standard of reasonableness,” with reasonableness judged under professional norms
prevailing at the time counsel rendered assistance. Id. at 688. “Judicial scrutiny of counsel’s
performance must be highly deferential. It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, . . .” Id. at 689
(citations omitted). “Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.” Id. (internal quotation marks
omitted).
Under the second prong, the petitioner must show that his attorney’s deficient
performance resulted in prejudice. Id. at 687. To satisfy the prejudice prong, the habeas
petitioner “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.” Id. at 694. An ineffective
assistance of counsel claim fails if a petitioner cannot satisfy either the deficient performance or

51

prejudice prong; a court need not evaluate both if he makes an insufficient showing as to either.
Id. at 697.
The Supreme Court discussed the difficulties associated with proving ineffective
assistance of counsel claims as follows:
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,
559 U.S. 356, 371 (2010). An ineffective-assistance claim can function as a way
to escape rules of waiver and forfeiture and raise issues not presented at trial, and
so the Strickland standard must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very adversary process the right to
counsel is meant to serve. Strickland, 466 U.S. at 689–690. Even under de novo
review, the standard for judging counsel’s representation is a most deferential
one. Unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with the client,
with opposing counsel, and with the judge. It is “all too tempting” to
“second-guess counsel’s assistance after conviction or adverse sentence.” Id. at
689; see also Bell v. Cone, 535 U.S. at 702; Lockhart v. Fretwell, 506 U.S. 364,
372 (1993). The question is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not whether it deviated
from best practices or most common custom. Strickland, 466 U.S. at 690.
Richter, 562 U.S. at 105. In a separate opinion issued on the same day, the Court reiterated that
the “question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from the best practices or most common
custom.” Premo v. Moore, 562 U.S. 115, 122 (2011) (citing Strickland, 466 U.S. at 690).
In the context of § 2254(d), the deferential standard that must be accorded to counsel’s
representation must also be considered in tandem with the deference that must be accorded to
state court decisions, which has been referred to as “doubly” deferential. Richter, 562 U.S. at
105. “When § 2254(d) applies, the question is not whether counsel’s actions were reasonable.

52

The question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. “If the standard is difficult to meet, that is because it was meant to
be.” Id. at 102; also see Morales v. Thaler, 714 F.3d 295, 302 (5th Cir.), cert. denied, 571 U.S.
883 (2013). The Strickland standard also applies to ineffective assistance of counsel claims in
the context of Martinez and Trevino. See Martinez, 566 U.S. at 14.
A.

Howard’s First Claim (IATC): Trial Counsel provided constitutionally ineffective
representation by failing to adequately investigate, develop, and present evidence of
Howard’s life history and mental health in mitigation of punishment.
Howard’s first ineffective assistance of trial counsel (“IATC”) claim concerns his trial

counsel’s investigation and use of mitigating evidence. Howard complains that his trial counsel
failed to take steps to discover all reasonably available mitigating evidence and argues that his
trial counsel was constitutionally ineffective in investigating, developing, and presenting
mitigation evidence at the punishment stage. Howard complains that counsel did not offer
known critical mitigating evidence that could have been provided by his mother, sister, other
family members, and friends.
1.

Exhaustion of the claim.

As a threshold matter, the Court must determine whether this issue was exhausted or
procedurally defaulted. Under the exhaustion requirement, a federal court may not grant habeas
relief unless it appears that the applicant has exhausted the remedies available in the courts of the
state. See § 2254(b)(1)(A); Richter, 562 U.S. at 86, 103–04. This requirement is satisfied when
a petitioner fairly presents the substance of the federal habeas claim to the highest state court.

53

Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (quoting Mercadel v. Cain, 179 F.3d 271,
275 (5th Cir. 1999)) abrogated in part by Lewis v. Thaler, 701 F.3d 783, 790 (5th Cir. 2012),
cert. denied, 569 U.S. 910 (2013).
The Court observes that the issue of whether trial counsel was ineffective during the
punishment phase of the trial was fully developed during the state habeas corpus proceedings.
Although Howard’s grounds for relief during the state habeas corpus proceedings were not
specifically worded in terms of ineffective assistance of counsel for not calling additional family
and friends regarding Howard’s life history and mental health or for failing to provide a more
fully developed psycho-social history to the mental health expert, Dr. Fason, state habeas
counsel fully explored the possible gambit of Howard’s ineffective of assistance claim.
State habeas counsel argued that while trial counsel investigated and determined that
Howard had mental deficiencies—and discussed Howard’s ADHD and potential diagnosis of
schizophrenia—trial counsel did not use of any of this evidence or any of the state habeas
counsel’s evidence of mental retardation to attack the voluntariness of Howard’s confession
(claim 5). (SHCR 53). State habeas counsel also argued that trial counsel failed to: (1) handle
mental competency issues appropriately; (2) timely raise the notice of insanity; (3) develop the
available evidence of mental illness, specifically obtaining the jail records, which included a
report from Dr. Guillett that supported a theory of mental illness; and (4) call Dr. Fason
(Howard’s trial mental health expert) in the second competency hearing (Dkt. 78-46, pp. 53–55).

54

State habeas counsel also argued that trial counsel failed to investigate and present
mitigating evidence at the punishment phase (claim 16) of: (1) Howard’s 1997 head injury, (2)
medical records and a neurological exam to support the head injury, (3) Howard’s jail records,
(4) evidence of low I.Q. and mental retardation, (5) request a jury instruction on mitigation, and
(6) object to prejudicial improper jury argument by the prosecutor regarding “stalking a young
lady.” (SHCR 74–79).
After reviewing the pleadings and evidence accumulated in this case, the state trial court
issued findings of fact regarding whether trial counsel was ineffective during the sentencing or
punishment phase of the trial as it pertains to Grounds Five and Sixteen, which includes the
following findings:
47.

[Howard’s] trial counsel presented evidence to the jury regarding [Howard’s]
mental state and claim of mental retardation.

48.

[Howard’s] trial counsel presented expert testimony regarding [Howard’s] mental
state from Dr. James Duncan, Ph.D., a licensed psychologist.

49.

[Howard’s] trial counsel presented non-expert testimony from [Howard’s] prior
educators, coaches, friends, and family all regarding [Howard’s] behavior and
mental capabilities in their individual interactions with him.

56.

[Howard] placed before the jury the issue of [Howard’s] mental issues through
both cross examination of state’s witnesses and direct examination of defense
witnesses.

Supp. SHCR 29.
The state habeas court went on to issue the following conclusions of law regarding
allegations of ineffective assistance of trial counsel:

55

59.

[Howard] was not mentally ill nor mentally retarded.

60.

[Howard’s] trial counsel’s performance did not fall below an objective standard
of reasonableness.

61.

[Howard’s] trial counsel’s performance was not deficient.

62.

[Howard’s] trial performance did not prejudice [Howard’s] defense.

63.

[Howard’s] trial counsel provided effective assistance of counsel.

Supp. SHCR 27.
As noted previously, this Court must give deference to the state habeas court’s findings
on this issue. See Cullen, 563 U.S. at 181; Richter, 562 U.S. at 105 (applying “doubly”
deferential when § 2254(d) is applicable). The Court finds that Howard’s first ineffective
assistance claim has been exhausted.
2.

Professional norms prevailing at the time.

Howard’s capital trial, including his two competency trials, began and were completed in
2001.

Many of the current legal standards regarding death penalty counsel’s obligations

regarding investigation of mitigation evidence were not available sixteen years ago when this
case was tried. Cases such as Wiggins v. Smith, 539 U.S. 510 (2003) (“not only the quantum of
evidence already known to counsel, but also whether the known evidence would lead a
reasonable attorney to investigate further”), were not the prevailing standard at the time of
Howard’s capital trial. Strickland instructs this Court that reasonableness is judged under the
professional norm prevailing at the time that counsel rendered assistance. Strickland, 466 U.S.
at 688. The Fifth Circuit has “repeatedly held that ‘there is no general duty on the part of
56

defense counsel to anticipate changes in the law.’” United States v. Fields, 565 F.3d 290, 294
(5th Cir. 2009) (internal citations omitted). The Court further found that attorneys are not
required to be clairvoyant. Id. at 294–95 (“Clairvoyance is not a required attribute of effective
representation.”). As this Court is required to assess Howard’s trial counsel’s performance with
deference, it is only fitting that this Court apply the standard that was in effect at the time of the
trial.
Howard is accurate that the prevailing professional norm at the time was found in
Strickland, Williams v. Taylor, 529 U.S. 362, 390-94 (2000), and Lockett v. Anderson, 230 F.3d
695, 714 (5th Cir. 2000). “It is clear that defense counsel’s failure to investigate the basis of his
client’s mitigation defense can amount to ineffective assistance of counsel.” Lockett, 230 F.3d at
711 (citing Williams v. Taylor, 529 U.S. 362). When considering a failure to investigate claim,
the Supreme Court has said,
[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.
Strickland, 466 U.S. at 691. In Lockett, the Fifth Circuit criticized Lockett’s trial counsel for
failing to conduct any investigation into his client’s obvious mental health problems. Unlike
Lockett’s counsel here, Howard’s trial counsel did investigate and provide witnesses and records
as to Howard’s childhood background, educational struggles, depression, and mental health
issues. See supra, Part IV, 2 A, B, & C.

57

As to Howard’s suggestion that this Court should apply the American Bar Association
guidelines to the analysis of trial counsel’s performance, that suggestion is declined.
Restatements of professional standards, such as the American Bar Association guidelines, are
“only guides” to what is reasonable and are properly considered only to the extent they describe
the prevailing professional norms and standard practice, and are not so detailed that they
“interfere with the constitutionally protected independence of counsel and restrict the wide
latitude counsel must have in making tactical decisions.” See Bobby v. Van Hook, 558 U.S. 4,
8–9 n.1 (2009) (per curiam).
The Constitution imposes “one general requirement: that counsel make objectively
reasonable choices.”

Id. at 9.

Counsel is “strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Pinholster, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 690). This standard not
only gives trial counsel the benefit of the doubt, but affirmatively entertains the range of possible
reasons counsel may have had for proceeding as they did. Id. at 196. Regarding counsel’s duty
to investigate, strategic decisions made by counsel following a thorough investigation are
“virtually unchallengeable.” Strickland, 466 U.S. at 690. “[S]trategic choices made after a less
than complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. Id. at 691.
Interestingly, the Wiggins Court, in discussing Strickland, stated that the investigation
into mitigating evidence has limits:

58

[We] emphasize that Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would
be to assist the defendant at sentencing. Nor does Strickland require defense
counsel to present mitigating evidence at sentencing in every case. Both
conclusions would interfere with the “constitutionally protected independence of
counsel” at the heart of Strickland, 466 U.S. at 689. We base our conclusion on
the much more limited principle that “strategic choices made after less than
complete investigation are reasonable” only to the extent that “reasonable
professional judgment support the limitations on investigation.” Id. at 690–91. A
decision not to investigate thus “must be directly assessed for reasonableness in
all the circumstances.” Id. at 691.
Wiggins, 539 U.S. at 533. This Court will not examine what trial counsel “should have done” as
suggested by Howard, but rather, whether trial counsel’s actions were reasonable regarding the
investigation of mitigating evidence.
3.

Deficient Representation of Trial Counsel.

Howard argues that his trial counsel’s performance fell below an objective standard of
reasonableness with respect to the duty to investigate, develop, and present mitigating evidence
documenting Howard’s unusual behaviors and deteriorating mental condition at the punishment
phase of his trial. (Dkt. #76, pp. 23–72). Howard contends that his trial counsel only had a
rudimentary knowledge of Howard’s psycho-social history and the information that he had
obtained was only the “most memorable highlights” and “was the result of perfunctory
investigation.”
a.

Howard fails to show the state habeas court’s decision was unreasonable.

As previously noted, Howard’s state habeas application challenged trial counsel’s
mitigation investigation and argued that the deficiencies led to the failure to locate certain

59

mitigation records regarding mental deficiencies and previous head injuries (jail records) and for
failing to develop evidence of mental retardation (SHCR 50, 94–95, 96–98, 146–55). Howard’s
state application asserted that the omitted evidence “would have supported a finding of
incompetency or [served] as mitigating evidence at the punishment stage.” (SHCR 50). In
rejecting Howard’s claims (claims 5 and 16), the state habeas court found that Howard failed to
prove deficient performance and prejudice (Supp. SHCR 26–27), and the Texas Court of
Criminal Appeals denied relief. Ex parte Howard, 2012 WL 6200688, at *1.
As to performance, the state habeas court found that trial counsel presented evidence to
the jury regarding Howard’s mental state and claim of mental retardation. (Supp. SHCR 26).
Trial counsel did so by presenting expert testimony regarding Howard’s mental state and by
presenting non-expert testimony from Howard’s prior educators, coaches, friends, and family
regarding his behavior and mental capabilities in their individual interactions with him. (Supp.
SHCR 26). Trial counsel also placed the mental health issue before the jury through cross
examination of state’s witnesses and direct examination of defense witnesses. (Supp. SHCR 26).
The state habeas court found that trial counsel’s performance was not deficient and did not
prejudice Howard’s defense, and that trial counsel provided effective assistance. (Supp. SHCR
27). The Court now turns to whether the state habeas court’s denial of relief was unreasonable
under § 2254(d).
Howard does not specify how the state habeas court’s decision was unreasonable, but
simply reasserts his argument that trial counsel’s representation was deficient in conducting the

60

mitigation investigation. Howard asserts that the psycho-social history prepared for trial did not
meet prevailing professional standards because (1) trial counsel did not meet long enough with
key witnesses or only met with the witnesses on the eve of trial or outside the courtroom; and (2)
the investigation failed to locate or did not include all of the people necessary to compile an
adequate psycho-social history and overlooked educators, family friends, neighbors, and
members of Howard’s extended family. He argues that this deficient investigation prejudiced
his defense because it led to Dr. Fason having insufficient information of Howard’s psych-social
history to adequately explain to the jury the depth of Howard’s mental illness and how his
mental illness shaped him and the murder that he committed.
Howard’s claim is essentially a complaint about the strategy employed by his trial
counsel. Federal courts “will not question a counsel’s reasonable strategic decisions.” Bower v.
Quarterman, 497 F.3d 459, 470 (5th Cir. 2007), cert. denied, 553 U.S. 1006 (2008). In applying
Strickland, the Fifth Circuit has held that “the failure to present a particular argument or
evidence is presumed to have been the result of strategic choice.” Taylor v. Maggio, 727 F.2d
341, 347–48 (5th Cir. 1984). Because of the risk that hindsight bias will cloud a court’s review
of counsel’s trial strategy, “a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 689.

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To the extent Howard now argues that trial counsel should have presented more or
different evidence of his mental decline or illness, this argument narrows down to a matter of
degrees. Courts must be “particularly wary of arguments that essentially come down to a matter
of degrees. Did counsel investigate enough? Did counsel present enough mitigating evidence?
Those questions are even less susceptible to judicial second-guessing.” Skinner v. Quarterman,
576 F.3d 214, 220 (5th Cir. 2009) (quoting Dowthitt, 230 F.3d at 743). In fact, Howard’s trial
counsel recognized, developed, and presented evidence of mental illness that Howard now
claims counsel overlooked. The record reflects that trial counsel presented a psychologist, a
psychiatrist, and nineteen lay witnesses, consisting of close family members, extended family,
educators, coaches, neighbors, and friends to testify regarding his mental decline and odd
behavior throughout the years. Trial counsel also utilized a trial investigator and obtained
Howard’s medical and school records.
Under the reasonableness standard, trial counsel is not required to call every known
person that has information regarding Howard and have them testify. The Court will not second
guess trial counsel’s decisions regarding how many witnesses he should have called to present
mitigation matters to the jury. Trial counsel is entitled to strategize as to: (1) how many witness
are enough, (2) which possible witnesses should be selected to testify as they have better jury
appeal, and (3) which possible witnesses should be deselected because trial counsel feels the
potential testimony becomes cumulative and duplicitous and is not beneficial to the defense.
Richards v. Quarterman, 566 F.3d 553, 568 (5th Cir. 2009) (“[C]umulative testimony generally

62

cannot be the basis of an ineffective assistance of counsel claim”) (citing United States v. Harris,
408 F.3d 186, 191 (5th Cir. 2005) (“This Court has previously refused to allow the omission of
cumulative testimony to amount to ineffective assistance of counsel.”)). Howard fails to show
on this record that the Texas Court of Criminal Appeals unreasonably denied his claims
challenging trial counsel’s investigation into mitigating evidence regarding his metal illness.
b.

No evidence that Dr. Fason’s opinion or testimony was affected by a lack
of psycho-social information.

Howard asserts that if Dr. Fason had been provided a better or adequate life history
report, Dr. Fason could have offered “insights into the issues that matter most in a capital trial,”
including how Howard’s mental illness shaped the course of his life, his prior misconduct or
criminal behavior, and his commission of the murder. (Dkt. #76, p. 55). As to his claim that Dr.
Fason had insufficient information to form an opinion and explain Howard’s mental decline and
illness to the jury, Howard is missing a key element. Howard fails to attach any sworn affidavit
or statement from Dr. Fason stating that: (1) he had insufficient information to form an opinion
regarding Howard’s mental decline and illness or even that he felt if he had more information he
could have better formed a diagnosis or explanation to the jury regarding Howard’s issues; (2)
that he had asked trial counsel to provide additional psycho-social information; and (3) that trial
counsel refused or failed to provide him with the requested additional information.
Howard cannot, however, prove that trial counsel was ineffective under Strickland for
failing to provide an expert with information by merely asserting that the information was
necessary for the expert to make a proper determination or even by producing a new expert
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opinion that disagrees with his prior expert. To establish that trial counsel’s performance was
deficient for failing to provide information to one or more of his mental-health experts at trial,
Howard must show that his expert requested the information in question:
To now impose a duty on attorneys to acquire sufficient
background material on which an expert can base reliable
psychiatric conclusions, independent of any request for
information from an expert, would defeat the whole aim of having
experts participate in the investigation. An integral part of an
expert’s specialized skill at analyzing information is an
understanding of what information is relevant to reaching a
conclusion.
Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995). To make a viable claim of the
deprivation of the effective assistance of counsel under Strickland for failing to provide an
expert with information, the petitioner must show that the expert requested the information and
that the information would have made a difference to the expert’s opinion. See Bloom v.
Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997); Roberts v. Dretke, 356 F.3d 632, 640 (5th Cir.
2004); Hendricks, 70 F.3d at 1038; Fairbank v. Ayers, 650 F.3d 1243, 1252 (9th Cir. 2011);
Roberts v. Singletary, 794 F. Supp. 1106, 1131–32 (S.D. Fla. 1992). Howard has not shown that
Dr. Fason or any other expert requested additional information from his trial counsel.
Howard’s mere speculation that Dr. Fason had insufficient information to form an
opinion or testify as to his opinion or explain to the jury the impact that a mental illness would
have on Howard’s life and criminal conduct, is just that, rank speculation. “While counsel
cannot completely abdicate a responsibility to conduct a pre-trial investigation simply by hiring
an expert, counsel should be able to rely on that expert to alert counsel to additional needed
64

information . . .” Turner v. Epps, 412 F. App’x 696, 704 (5th Cir. 2011); see also Segundo v.
Davis, 831 F.3d 345 (5th Cir. 2016), cert. denied, 137 S. Ct. 1068 (2017) (affirming the rationale
that “none of the experts retained by trial counsel indicated that they were missing information
needed to form an accurate conclusion that Segundo is not intellectually disabled”).
Howard also criticizes his trial counsel (and the prosecution) for failing to ask any
questions of Dr. Fason pertaining to his impressions regarding his diagnosis and conclusions
regarding Howard’s inappropriate behavior and affect (Dkt. #76, pp. 63-64). Howard speculates
that trial counsel did not ask any questions regarding Dr. Fason’s impressions and Dr. Fason did
not volunteer any impressions because Dr. Fason had only rudimentary knowledge of Howard’s
life history. Howard does not specify or identify which of Dr. Fason’s impressions that trial
counsel should have questioned Dr. Fason over, and if and how, such information would have
been sufficient to change the jury verdict from death to life. The record does not support
Howard’s speculation and speculation cannot form the basis for habeas relief.
The record reflects that trial counsel provided records from several sources, including
medical and school records, to Dr. Fason (29 R.R. 96, 106). Dr. Fason conducted two clinical
interviews of Howard. (26 R.R. 20; 29 R.R. 106). He tried to administer the Minnesota
Multiphasic Personality Inventory 2 (MMPI-2) to Howard during the initial interview but was
unsuccessful, so counsel obtained additional expert assistance. (2 R.R. 48–51). Dr. James
Duncan then evaluated Howard’s competency and administered some projective psychological
tests. (22 R.R. 48–51; 26 R.R. 23). Dr. Fason read Dr. Duncan’s report (26 R.R. 63; 29 R.R.

65

101) and talked with Dr. Duncan (26 R.R. 26). Dr. Fason examined Howard’s school records
and medical records and relied on them in reaching his opinion (26 R.R. 4, 24–26, 28; 29 R.R.
101).

Additionally, Dr. Fason had Howard’s mother fill out a three or four page

autobiographical form regarding her son’s history and relied on it in forming his opinions. (26
R.R. 4–5; 29 R.R. 89). Dr. Fason reviewed the medical file of Dr. Laine (Howard’s therapist for
three years in adolescence), called Dr. Laine, and discussed the case with him. (26 R.R. 4, 6–8,
28, 36, 54; 29 R.R. 91, 101). He talked with Howard’s mother (26 R.R. 29; 29 R.R. 88, 91), one
of Howard’s sisters (26 R.R. 5), and a nurse at the jail (26 R.R. 56, 31). Dr. Fason also
apparently did a “total history of the case” and reviewed Howard’s “psychological profile.” (29
R.R. 114).
There is no indication from the record that Dr. Fason stated or believed he had
insufficient information from trial counsel to form an opinion or testify on Howard’s behalf.
Even if Dr. Fason had additional psycho-social information from trial counsel, even the
information attached to Howard’s amended petition (Dkt. #76-1 – #76-9), there is no indication
that the additional psycho-social evidence would have altered the outcome of the trial. See
Anderson v. Collins, 181 F.3d 1208, 1221 (5th Cir. 1994) (requiring petitioner to show with
specificity: (1) what the investigation would have revealed, (2) what specific evidence would
have been disclosed, and (3) how the evidence would have altered the outcome of the trial);
Hernandez v. Thaler, 398 F. App’x 81, 88 (5th Cir. 2010). Additionally, “[c]ounsel should be
permitted to rely upon the objectively reasonable evaluations and opinions of expert witnesses

66

without worrying that a reviewing court will substitute its own judgment . . . and rule that his
performance was substandard for doing so.” Smith v. Cockrell, 311 F.3d 661, 676–77 (5th Cir.
2002), overruled in part on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004); Wilson v.
Sirmons, 536 F.3d 1064, 1089 (10th Cir. 2008) (noting that, to a degree, counsel should be able
to rely on an expert to determine what evidence is necessary to an effective evaluation, and what
additional evidence the expert needs to complete testing).
Ultimately, Dr. Fason opined that Howard was suffering from schizophrenia and offered
that opinion during the first trial on competency and at the punishment phase proceedings. (29
R.R. 106–08; 26 R.R. 33). Dr. Fason also testified that Howard’s diagnoses of ADHD and
depression as an adolescent were much more consistent with a diagnosis of schizo-affective
schizophrenia or simple schizophrenia (26 R.R. 33–34). Dr. Fason also gave an opinion stating
that Howard was incompetent to stand trial. (34 R.R. at DX-2). He testified in a similar manner
during the first trial on competency, which ended with the jury deadlocked. (29 R.R. 85–118; 30
R.R. 37).
The record reflects that trial counsel provided Howard’s medical and school records to
Dr. Fason, a licensed mental health expert. In turn, Dr. Fason conducted two clinical evaluations
of Howard and collected information from various sources that he deemed necessary to forming
his opinions. There is no indication that he requested information from trial counsel that trial
counsel refused to provide. Trial counsel was entitled to rely on the expertise of his expert who
diagnosed Howard as schizophrenic. See Couch v. Booker, 632 F.3d 241, 246 (6th Cir. 2011)

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(“[T]rial counsel may rely on an expert’s opinion on a matter within his expertise when counsel
is formulating trial strategy.”); Sims v. Brown, 425 F.3d 560, 585–86 (9th Cir. 2005)
(“[A]ttorneys are entitled to reply on the opinions of mental health experts, and to impose a duty
on them to investigate independently of a request for information from an expert would defeat
the whole aim of having experts participate in the investigation.”) (internal citation omitted).
Based on this record, Howard has failed to show that the state habeas court was unreasonable in
finding that his trial counsel did not render ineffective assistance of counsel. Furthermore,
Howard has failed to show that his trial counsel’s performance was deficient.
c.

Howard must demonstrate prejudice.

When a petitioner fails to meet the deficiency prong of Strickland, a court is not required
to proceed further in its Strickland analysis. Strickland, 466 U.S. at 697 (“[T]here is no reason
for a court deciding an ineffective assistance claim to approach the inquiry in the same order or
even to address both components of the inquiry if the defendant makes an insufficient showing
on one.”). In the interests of completeness and justice, this Court will examine whether Howard
has demonstrated that his trial counsel’s performance caused him prejudice.
To demonstrate prejudice, the second prong of Strickland’s test, Howard must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.

“A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Id.

The “reasonable

probability” standard is less demanding than a “more likely than not” standard, and the

68

defendant does not need to “show that counsel’s deficient conduct more likely than not altered
the outcome in the case.” Id. at 693. “[T]he question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at
695. Similarly, when the defendant challenges a death sentence, “the question is whether there
is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to
the extent it independently reweigh[ed] the evidence—would have concluded that the balance of
the aggravating and mitigating circumstances did not warrant death.” Id. The Supreme Court
has further held that the likelihood of a different outcome must be “substantial, not just
conceivable.” Richter, 562 U.S. at 112.
In evaluating the issue of prejudice at capital sentencing, courts must reweigh the quality
and quantity of the available mitigating evidence, both that adduced at trial and that adduced in
the state habeas proceeding, against the aggravating evidence. Williams, 529 U.S. at 397–98;
Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008), cert. denied, 556 U.S. 1240 (2009).
A court then should ask whether the changes to the mitigation case would have a reasonable
probability of causing a juror to change his or her mind about imposing the death penalty. See
Tex. Code Crim. Proc. art. 37.071, § 2(f)(2) (stating that the jury must unanimously answer “no”
to the mitigation special issue to impose the death penalty); Neal v. Puckett, 286 F.3d 230, 241
(5th Cir. 2002), cert. denied, Neal v. Epps, 537 U.S. 1104 (2003). “[T]here is no prejudice when
the new mitigating evidence ‘would barely have altered the sentencing profile presented’ to the
decision-maker.” Sears v. Upton, 561 U.S. 945, 954 (2010) (citing Strickland, 466 U.S. at 700).

69

The inquiry requires a court to engage in a “probing and fact-specific analysis.” Id. at 955. The
Strickland standard in analyzing the prejudice prong “necessarily requires a court to ‘speculate’
as to the effect of the new evidence—regardless of how much or how little mitigation evidence
was presented during the initial penalty phase.” Id. at 956.
In the present case, the evidence at trial showed a cold and deliberate murder. The
evidence showed Howard stealing the gun from his grandfather’s room and walking several
blocks to the convenience store. The convenience store video tape showed Howard peering
through the window several times to ensure that no other persons were present before entering
the store (SX-1). The video tape showed Howard entering the store and walking to the secured
office area where the victim was sitting, cocking the gun, and shooting the victim in the chest.
As she lay screaming in pain on the floor, Howard asked “Do you have any more money in
here?” (20 R.R. 112). Howard then reached over the victim to steal a carton of cigarettes and
taking money from the cash register before leaving through the back door. (20 R.R. 112–13).
The video tape is a compelling and powerful piece of aggravating evidence. The jury is able to
visually assess what they perceive as to the defendant’s mental status, intent, motive, and
deliberateness. The visceral effect on a jury watching such a scene play out on the video as
described above is difficult to overcome for any defense counsel.
The additional aggravating evidence showed that Howard had: (1) possible gang ties, (2)
was taking crack cocaine at least two weeks prior to the murder, (3) was dealing and selling
crack cocaine (e.g., conviction for delivery of a controlled substance, and arrest for possession of

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5 rocks of crack cocaine two weeks prior to the murder), (4) had been arrested several times for
various crimes (burglary of a habitation, delivery and possession of a controlled substance), (5)
defiance with authority and police officers, (6) tendencies toward violence (punching a teacher
in the chest, fighting while in jail awaiting trial), and (7) had been expelled from school despite
efforts by his mother and educators to help him complete his education. The aggravating
evidence also included the police officers testifying that Howard expressed no remorse for the
murder and telling the officers that he was not sorry for his actions (20 R.R. 126, 129; see 33
R.R. at SX-46).

Finally, the state’s mental health expert witness testified that Howard’s

behavioral issues derived from anti-social personality disorder, rather than from prodromal
symptoms prior to the onset of schizophrenia. (26 R.R. 112–15, 26 R.R. 57, 65–66).
The mitigating evidence presented at trial derived from the nineteen lay witnesses
consisting of family members, friends, educators, coaches, jailors, and two defense mental health
experts. The friends and family testimony focused on Howard’s declining mental health and odd
behaviors while growing up, while the expert testimony focused on an explanation for Howard’s
odd behavior, diagnosing him with prodromal symptoms10 of schizophrenia.
The “new” mitigating evidence submitted by state habeas counsel consisted of Hardin
County jail records while Howard was awaiting trial for murder and TDCJ medical records. The
Hardin County jail records reflects that a “mental deficiency” was noted on the day of the arrest.

10

The “prodromal syndrome or symptoms” is not a diagnosis, but the technical term used by mental health professionals
to describe a specific group of symptoms that may precede the onset of a mental illness. For example, a fever is
“prodromal” to measles, which means that a fever may be a risk factor for developing this illness. Prodome, Wikipedia,
https://en.wikipedia.org/wiki/Prodrome (last visited July 18, 2018).
71

(SHCR 54, 157). Additionally, a Physician’s Certificate of Medical Examination for Mental
Illness report from Dr. Guillett, presumably a Hardin County Jail medical provider, was a part of
the jail records (SHCR 151–54). State habeas counsel characterized this document as one which
could have supported a theory of mental illness (SHCR 54).

The Physician’s Certificate,

however, appears to be double-edged. The Certificate reflects that Howard was “oriented as to
time and place,” “aware of having premeditatedly [sic] robbed a store,” “aware of having shot
the clerk,” and “is likely to cause serious harm to others.” (SHCR 151–54). Likewise, the jail
records also are double-edged as they reflect that Howard was designated as representing: (1) an
escape threat, (2) a serious threat of violence, and (3) having substance abuse issues. (SHCR
157).
The Fifth Circuit recently reiterated that it has held that “double-edged evidence cannot
support a showing of prejudice under Strickland.” Reed v. Vannoy, 703 F. App’x 264, 270 (5th
Cir. 2017) (citing Dowthitt, 230 F.3d at 745); see also Matthews v. Davis, 665 F. App’x 315, 319
(5th Cir. 2016) (trial counsel’s failure to investigate and introduce evidence was not prejudicial
because it would be double-edged); Gray v. Epps, 616 F.3d 436, 449 (5th Cir. 2010), cert.
denied, 563 U.S. 905 (2011) (petitioner could not show prejudice because much of the new
evidence was double-edged and could be interpreted as aggravating).
State habeas counsel also presented Howard’s incarceration medical records collected
from TDCJ. These incarceration medical records reflect a five year period of time from 2001 to

72

2006.

These medical records show that prison doctors diagnosed and treated Howard for

schizophrenia. These records did not exist at the time of Howard’s capital trial.
Even assuming, arguendo, that trial counsel should have done more to create a more
complete life history of Howard’s mental illness to provide to Dr. Fason, the jury heard Dr.
Fason’s testimony regarding his opinion that Howard suffered from schizophrenia. Howard’s
federal habeas counsel summarized Dr. Fason’s testimony as follows:
1.

The first factor was Howard’s stark decline in standardized math scores in school,
going from the 91st percentile in the second grade to the 23rd percentile in the
eighth or ninth grade. 26 R.R. 24–25. Dr. Fason explained that “it is not normal”
for a child to have this kind of precipitous decline in these scores. Id. “[I]t was
as if some malignant process started affecting his brain because he went
downhill.” Id. at 25. This caused Dr. Fason to look for that malignant process.

2.

Dr. Fason then talked with Dr. Duncan, who informed him that “there was a
poverty of information on the psychological test that Dr. Duncan gave Howard;
the inkblot test.” Id. at 26. Learning of “this poverty of thought . . . I began to
move towards the schizophrenia disorder because that’s the characteristic.” Id.

3.

Dr. Fason then explained that the “thought disorder” of schizophrenia “usually
goes back to prepuberty . . . [where] [y]ou begin to see not only a certain
weirdness in the individual beginning to develop, but you see a decline in
cognitive abilities.” Id. at 27. Dr. Fason affirmed that Howard’s “third or fourth
grade [teacher]” having “to put him under the table so he could focus and read”
would be an example of such weird behavior. Id. at 27–28.

4.

Dr. Fason also found that Dr. Laine’s diagnosis of Howard having ADHD in
childhood and depression in adolescence was likely a sign of the early onset
(“prodormal” phase, id. at 28) of schizophrenia. See also id. at 36.

5.

Dr. Fason found additional confirmation for his diagnosis in Howard’s
“inappropriate affect,” e.g., laughing or smiling when the situation called for a
different emotion, id. at 30–31—a feature that he called “one of the cardinal signs
of schizophrenia,” id. at 31—and also, in Howard’s “looseness of associations
when he is pressed on things,” id. at 33, like his understanding of the punishment
73

he could receive, id. at 30, or his two differing accounts of what happened at the
time of the crime, id. at 31–33.
The record demonstrates that Howard’s trial counsel’s mitigation investigation was
reasonable and supported by qualified experts and records provided. The jury was aware of
Howard’s mental state and mental health decline, and counsel formulated an objectively
reasonable strategy to counter the aggravating evidence in an attempt to obtain a life sentence.
The claim that trial counsel’s investigation was deficient is a simple disagreement with trial
counsel’s chosen tactics, belies the wealth of contrary evidence in the record, or is a matter of
degrees that this Court will not second-guess. Howard has failed to demonstrate that it was
unreasonable for the state habeas court to conclude: (1) that he did not overcome the strong
presumption of trial counsel’s competence, and (2) that he failed to undermine confidence in the
jury’s sentence of death. See § 2254(d).
Howard’s assertion that he was prejudiced by trial counsel’s failure to present all possible
mitigation evidence regarding his possible diagnosis of schizophrenia is wholly conclusory.
There is no method by which to gauge the weight the jury might have given additional testimony
regarding his behavior. There is no magical equation which guarantees that testimony from
additional witnesses would have resulted in a substantial change in the outcome of the
sentencing. Based on the weighing of the available mitigating evidence, both that adduced at
trial and at the state habeas proceeding, against the aggravating evidence, Howard cannot show
that there was a reasonable probability that, absent the perceived errors, that the outcome would

74

have substantially changed. Howard has failed to show that his trial counsel’s performance
caused him prejudice.
4.

Howard’s new evidence in light of Martinez and Trevino.

Although this Court finds that Howard’s first IATC claim was exhausted, and not
procedurally defaulted, this Court will consider Howard’s Martinez and Trevino argument as it
applies to his first IATC claim. Howard attached new evidence to his federal habeas petition
asserting that it supports his claim of ineffective assistance of counsel. Specifically, his claim
that his trial counsel failed to provide a complete psycho-social history to Dr. Fason. The
Strickland standard applies to ineffective assistance of counsel claims in the context of Martinez
and Trevino. See Martinez, 566 U.S. at 14. Assuming, arguendo, that the Court can consider
this new evidence that Howard attached to his federal habeas petition, the new evidence is as
follows:
1.

Shirley Howard Declaration,

2.

Gina Vitale Declaration,

3.

Sheanna Howard Declaration,11

4.

Kim Lewis Declaration,

5.

Gaye Lokey Declaration (#1),

6.

Gaye Lokey Declaration Exhibit School Records (#2),12

11

The medical and school records for Howard attached to Mrs. Howard’s declaration are already included in the state
court record. Cf. Dkt. #76-1, pp. 14–79 with 35 R.R. at DX-3 and DX-4.
12

The school records presented with this declaration are already included in the state court record. Cf. Dkt. #76-6, pp.
1–32 with 35 R.R. at DX-3 and DX-4.
75

7.

Lisa Sanchez Declaration,

8.

Linda McCarter Declaration,

9.

Thomas Tyler Declaration,

10.

TDCJ Jester Unit Medical Records (Part 1),

11.

TDCJ Jester Unit Medical Records (Part 2),

12.

TDCJ Jester Unit Medical Records (Part 3),

13.

George Woods, M.D., Declaration,

14.

George Woods, M.D., Preliminary Report,

15.

J. Howard Voluntary Statement (Confession),

16.

Hamm [state habeas counsel’s] Billing Records, and,

17.

Milstein Funding Request & Judge’s Order.
a.

New testimonial evidence of family and friends.

Howard asserts the individuals identified within his new evidence “had significant and
relevant information regarding his life history that is critical to the development of an accurate
and reliable life history and proper mental health evaluation.” (Dkt. #76, p. 35). Howard names
Shirley Howard (Howard’s mother), Sheanna Howard (Howard’s sister), Jasmonique (“Treci”)
Howard (Howard’s youngest sister), Jerry Howard, Sr. (Howard’s biological father), Patricia
Robertson (Howard’s paternal aunt), Karrion Cartwright (Howard’s best friend), George Desha
(a neighbor), Jinneh Dyson (a neighbor), Kim Lewis (a friend), Michael Lewis (a friend),
Alfredrick (“Fred”) McGrue (a friend of Howard’s older brother), James A. Duncan, Ph.D.

76

(clinical psychologist), Gaye Lokey (Assistant Principal at Silsbee Middle School when Howard
was in 7th grade), and Lisa Sanchez (Howard’s 4th grade teacher). Howard contends that trial
counsel either did not interview the above persons at all or the interviews were perfunctory and
conducted on the eve of trial, sometimes taking place outside the courtroom just before they
testified.
In response, the Director contends (and the record supports) that family members
testified on Howard’s behalf: his mother, Shirley Howard (testified four times), his sister,
Sheanna Howard (testified twice), his older brother, Jerry Howard, Jr., his grandfather, R. C.
Kyles, cousin Pamela Fulton, and cousin Tonya Moffett. Additionally at least ten of Howard’s
friends, neighbors, and peers testified including Lola Thomas, Milton Young, Tyre Thomas
(testified three times), William Bass, Sandra Johnson (testified twice), Denise Young, Iby G.
Young, Keesha McKinney, Deanne Johnson, and Linda Lacy. Howard’s 4th grade teacher, Lisa
Sanchez, and two of his coaches Michael Sanchez, and Joe Neely, also testified for the defense
at both stages of the trial. Moreover, clinical psychologist James A. Duncan, Ph.D., testified
during Howard’s capital trial.13 The Director also correctly points out Howard’s new “evidence .
. . suffers from a host of problems that largely render it inadmissable. Counsel cannot perform
deficiently for failing to discover inadmissible evidence nor can Howard [show] prejudice by its
omission.” (Dkt. #79, p. 64).

13

Dr. Fason testified that he relied on Dr. Duncan’s psychological testing and interviews with Howard, and consulted
directly with Dr. Duncan regarding Howard’s issues and symptomology.
77

Howard claims that several individuals had significant and relevant information
pertaining to Howard’s life history that was critical to the development of an accurate and
reliable life history and proper mental health evaluation. “To prevail on an ineffective assistance
claim based upon uncalled witnesses, an applicant must name the witness, demonstrate that the
witness would have testified, set out the content of the witness’s proposed testimony, and show
that the testimony would have been favorable.” Trevino v. Stephens, No. SA-01-CA-306-XR,
2015 WL 3651534 at *7–8 (June 11, 2015) (unpublished) (citing Gregory v. Thaler, 601 F.3d
347, 352 (5th Cir.), cert. denied, 562 U.S. 911 (2010)). “An applicant ‘who alleges a failure to
investigate on the part of his counsel must allege with specificity what the investigation would
have revealed and how it would have altered the outcome of the trial.’” Id.
Howard contends his trial counsel failed to locate and obtain psycho-social information
from several “key persons;” however, Howard did not submit a sworn affidavit or declaration
from all of the alleged “key persons.”

Rather, Gina Vitale, Howard’s federal habeas

investigator, provided a declaration summarizing her interview of nine “key persons:” Karrion
Cartwright, George Desha, Jinneh Dyson, Ph.D., Jasmonique “Treci” Howard, Jerry Howard, Sr.
(Howard’s father), Alfredrick McGue, Patricia Robertson, and Towona Washington.14 Howard,
however, did provide a signed declaration from Kim Lewis, Gaye Lokey, Linda McCarter, and
Thomas Tyler. None of these particular “key” witnesses testified during Howard’s capital trial.

14

The State identifies Jerry Howard, Jr., Howard’s older brother, as one of the key persons whom did not provide an
affidavit. The Court notes that Jerry Howard, Jr. testified at Howard’s trial on his behalf.
78

Howard does not provide any explanation of how the testimony from these additional
thirteen “key persons” is different from the nineteen persons who testified at various stages of
his trial on his behalf. Furthermore, Howard does not explain how the proposed testimony from
the thirteen “key persons” would not have been cumulative or duplicative of the testimony that
was presented at trial or only of collateral significance. Moreover, the failure to produce an
affidavit from each of the nine uncalled witness, identified by Gina Vitale, severely undermines
a claim of ineffective assistance. Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001).
Another deficiency noted in the affidavits or the interview notes is a lack of any
statements indicating any of these nine witnesses above (identified by Gina Vitale), and Kim
Lewis, Linda McCarter, and Tyler Thomas were available and willing to testify during Howard’s
2001 capital murder trial.15 See Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010) (holding
petitioner complaining of uncalled witness must show the witness was available and willing to
testify to satisfy the prejudice prong of Strickland); Day v. Quarterman, 566 F.3d 527, 538 (5th
Cir. 2009) (holding the same). Moreover, the Fifth Circuit “has repeatedly held that complaints
of uncalled witnesses are not favored in federal habeas review because the presentation of
testimonial evidence is a matter of trial strategy and because allegations of what a witness would
have stated are largely speculative.” Day, 566 F.3d at 538 (citation omitted); see also Charles v.
Stephens, 736 F.3d 380, 390–91 (5th Cir. 2013), cert. denied, 135 S. Ct. 52 (2014). Although the
statements of these nine key persons were presented through the declaration of Gina Vitale, and
the other four “key” witnesses through each’s own declaration, the above noted deficiencies
15

Ms. Lokey is the only new witness who stated under oath that she was willing and able to testify.
79

requires the Court to exclude the statements of these thirteen “key persons” from consideration
as presented. Gina Vitale’s summary of information collected from these “key persons” is not
competent evidence. See Bruce v. Cockrell, 74 F. App’x 326, 335 (5th Cir. 2003) (criticizing
reliance on the “affidavit of federal habeas counsel’s investigator, relating statements allegedly
made to her by [the defendant’s family]” instead of relying on “any affidavits by the uncalled
witnesses themselves or offer any evidence that they would have been willing to testify at the
punishment phase of his trial”).

To the extent that the Court may review Howard’s new

evidence, there are deficiencies that render this new testimonial evidence inadmissible.
Furthermore, Howard has not shown that his claims concerning uncalled witnesses are not
merely a disagreement regarding strategic choice by trial counsel. The above-described new
evidence is unreviewable by the Court.
As to the witnesses that testified during Howard’s capital trial that Howard now claims
their individual testimony was not sufficiently flushed out in questioning,16 the Fifth Circuit has
held that “the failure to present a particular argument or evidence is presumed to have been the
result of strategic choice.” Taylor, 727 F.2d at 347–48. Howard argues that trial counsel did not
elicit enough or more information regarding his mental decline from his testifying witnesses.
Howard is particularly critical of his trial counsel for questioning each witness as to their
empathy for him, the victim, and her family. Questions designed to elicit empathetic responses
from witnesses before a jury are not unusual in criminal cases and are a matter of strategy. A
federal court will not question counsel’s reasonable strategic decisions. Bower, 497 F.3d at 470.
16

Shirley Howard (testified four times), Sheanna Howard (testified twice), and Lisa Sanchez (testified twice).
80

Habeas corpus relief is unavailable if a petitioner fails to overcome the presumption that counsel
made sound strategic decisions. Del Toro v. Quarterman, 498 F.3d 486, 491 (5th Cir. 2007),
cert. denied, 552 U.S. 1245 (2000).
Assuming, arguendo, that trial counsel’s representation was deficient for failing to
interview and call the additional thirteen “key witnesses,” Howard is not entitled to relief
because he has not shown prejudice. There is no reasonable probability that the outcome of the
trial would have been different if trial counsel had interviewed and called the additional thirteen
“key witnesses” and each had testified in a manner consistent with his affidavit or interview with
the federal habeas investigator.

There is no reasonable probability that this additional

information as part of a more complete psycho-social history would have advanced Dr. Fason’s
understanding or testimony regarding Howard’s condition—especially because evidence was
presented on these issues, which the jury rejected.
Furthermore, the Court further notes that the additional thirteen key witnesses’ potential
testimony was “double-edged.”

Any benefit Howard may have had by presenting more

witnesses as to his life history may have been outweighed by the negative things each witness
would have said regarding his inappropriate behaviors and responses. “[D]ouble-edged evidence
cannot support a showing of prejudice under Strickland.” Reed, 703 F. App’x at 270 (citing
Dowthitt, 230 F.3d at 745); see also Matthews, 665 F. App’x at 319 (trial counsel’s failure to
investigate and introduce evidence was not prejudicial because it would be double-edged); Gray,
616 F.3d at 449 (petitioner could not show prejudice because much of the new evidence was

81

double-edged and could be interpreted as aggravating). “Mitigation, after all, may be in the eye
of the beholder.” Martinez v. Cockrell, 481 F.2d 249, 258 (5th Cir. 2007) (quoting Burger v.
Kemp, 483 U.S. 776, 794 (1987)), cert. denied, 552 U.S. 1146 (2008). The Fifth Circuit has
observed that evidence of “brain injury, abusive childhood, and drug and alcohol problems is all
‘double-edged.’ In other words, even if the jury heard this additional testimony, it could have
been interpreted by the jury to support, rather than detract, from his future dangerousness claim.”
Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002), cert. denied, 538 U.S. 926 (2003). Had
trial counsel presented the new proposed mitigating evidence at trial, the prosecution would have
had additional evidence to explain why Howard would pose a future danger—e.g., his refusal to
take his medication, his refusal to seek help for his mental issues, his disassociation from his
behaviors, etc. The new proposed mitigating evidence submitted by federal habeas counsel is
“double-edged,” and could be viewed as more aggravating than mitigating. For these reasons,
Howard cannot demonstrate prejudice.
b.

Reports and statements of Dr. George Woods.

Howard attached a June 20, 2014 declaration (Dkt. #76-13) and an unsworn September
16, 2015 expert witness report (Dkt. #76-14) from Dr. George Woods, a neuropsychiatrist, to his
amended petition. Both of these documents suffer from fatal deficiencies that do not promote
Howard’s position in his federal habeas petition.
In the declaration, Dr. Woods opines about two questions: (1) whether the evaluation
conducted by the defense mental health expert was adequate under the standards required for

82

forensic mental health evaluation, and (2) whether a professionally adequate evaluation be
conducted now and what would such an evaluation entail. The issues that Dr. Woods addressed
in his declaration do not support any issue for federal habeas relief raised by Howard in his
federal habeas petition. Essentially, the expert opinions raised by Dr. Woods in the declaration
are not relevant to the live issues before the Court.
In the expert witness report, Dr. Woods recommended further evaluation and testing of
Howard’s intellectual disability and adaptive abilities.

In his September 12, 2017, second

motion for additional funding for previously-authorized expert, Howard, however, conceded that
an intellectual disability claim was not a viable claim. (Dkt. #74, p. 2). As such, Dr. Woods’
recommendations are not relevant to the live issues before the Court.
Moreover, the expert witness report is not sworn or verified in any acceptable manner.
See 28 U.S.C. § 1746. As a result, the unsworn expert report is not admissible evidence in this
proceeding. See FED. R. CIV. P. 56(c), (e); see also Payne v. Collins, 986 F.Supp. 1036, 1054
n.41 (E.D. Tex. 1997) (“[S]ua sponte evidentiary rulings fulfill the court’s duty to ‘assess the
evidence presented upon the motion for summary judgment to determine its admissibility.”’)
(quoting Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965)).
In addition to the above issues, neither the declaration nor the expert witness report state
that Dr. Woods, as an uncalled witness, could have or would have been available and testified as
to his opinions at Howard’s trial. As discussed, supra, a witness must assert that she is available
and willing to testify on behalf of the defendant. See Woodfox, 609 F.3d at 808 (holding

83

petitioner complaining of uncalled witness must show the witness was available and willing to
testify to satisfy the prejudice prong of Strickland); Day, 566 F.3d at 538. The failure of the
declaration and the expert witness report to include this assertion precludes a showing of
prejudice under Strickland.
Furthermore, additional opinion testimony that Howard suffered from prodromal
schizophrenia or schizophrenia is cumulative of the testimony of provided by Dr. Duncan (21
R.R. 26, 29, 36) and Dr. Fason (26 R.R. 3–4, 26, 33) at the trial and punishment phases. Howard
cannot demonstrate that he was prejudiced by the absence of another opinion regarding a
diagnosis of schizophrenia.
Throughout multiple places in Howard’s briefing, Howard summarizes information
provided by Dr. Woods during phone calls to Howard’s counsel and offers the summarized
information to prove the truth of the matters asserted. (Dkt. #76, pp. 57–62, 66–71). Howard’s
federal habeas counsel’s reporting of her telephone conversations with Dr. Woods regarding his
opinions pertaining to Howard’s mental illness, organic brain impairments, cognitive deficits,
competency to stand trial in 2001, waiver of Howard’s Miranda rights, and subsequent
confession are nothing more than hearsay. See FED. R. EVID. 801(c). Dr. Woods’ statements,
through counsel, do not qualify for an exception under FED. R. EVID. 803; and thus, they are not
allowed to be considered by this Court. Howard cannot demonstrate that he was prejudiced by
the absence of inadmissible, hearsay testimony.

84

c.

Conclusion regarding new evidence.

Having reweighed all of the mitigating evidence, both old and new, against the
aggravating evidence, the Court is of the opinion–and so finds–that there is no reasonable
probability that a juror would have found that the mitigating evidence outweighed the
aggravating evidence. The following conclusion by the Fifth Circuit is equally applicable to the
present case: “the additional mitigating evidence was not so compelling, especially in light of the
horrific facts of the crime, that the sentencer would have found a death sentence unwarranted.”
Martinez, 481 F.2d at 259. Howard has not proven prejudice. He has not shown that he is
entitled to federal habeas corpus relief on this issue.
5.

Perceived under-funding of an expert.

In multiple places throughout Howard’s habeas petition, Howard states that his expert,
Dr. George Woods, was partially funded or under-funded (Dkt. #76, pp. 61, 65, 66, 72). Howard
asserts that Dr. Woods needed additional funding to interview Howard again and draft and
discuss his final report with Howard’s counsel. (Dkt. #76, p. 66). Howard also asserts that the
Court twice denied additional funding for Dr. Woods. As a result of this perceived underfunding, Howard implies that he has been hindered in the presentation of his federal habeas
petition, and thus, he must rely upon the hearsay conversations between Dr. Woods and his
counsel to present Dr. Woods’ opinions as evidence in support of his grounds for relief. (Dkt.
#76, pp. 66–67, et seq.). Howard complains that he would have had a finalized report from Dr.

85

Woods but for the Court disallowing the request for additional funds for Dr. Woods’ services
(Dkt. 76, p. 66).
In pertinent part, 18 U.S.C. § 3599 states:
Upon a finding that investigative, expert, or other services are reasonably
necessary for the representation of the defendant, whether in connection
with issues relating to guilt or the sentence, the court may authorize the
defendant’s attorneys to obtain such services on behalf of the defendant
and, if so authorized, shall order the payment of fees and expenses therefor
under subsection (g).
The Court is mindful that it is required to evaluate funding requests in light of whether the
requested funding for a particular expert’s service is “reasonable and necessary to provide fair
compensation for services of an unusual character or duration.” The Court does not view the
Martinez/Trevino cases as opening the door for unlimited investigation, especially where the
goals are not clearly articulated and supported with evidence.

The Court authorized over

$36,000 in expert fees for this case (see Dkt. ##31, 56, 71). Of this approved funding, more than
$20,000 was allocated solely for Dr. Woods’ services.
Howard’s requests for funding began with his September 23, 2013, budget letter. (Dkt.
#14).

Howard proposed funding in the amount of $33,750 for expert and investigative

assistance. (Dkt. #14). Specifically, Howard proposed that $26,250 would be expended for the
mitigation investigator and $7,500 for a forensic psychological expert. (Dkt. #14, p. 19).
On October 30, 2013, the Court issued a Sealed Ex Parte Memorandum Opinion and
Order (Dkt. #15) addressing Howard’s specific funding motion for mitigation investigator
services. In that Memorandum Opinion and Order, the Court expressed concerns about the
86

intent of the various investigatory aims.

The Court specifically inquired whether some

claims—such as a claim pursuant to Atkins v. Virginia, 536 U.S. 304 (2002)—have previously
been presented to and ruled upon by the state courts in this case, and, whether the scope and
breadth of the mitigation investigation in support of ineffective assistance of counsel claims
related to the analysis under Martinez and Trevino. The Court granted Howard’s request for an
initial funding of $7,500 for mitigation investigation services but directed Howard, through
counsel, to submit certain reports to the Court based on the results of that initial investigation
before the Court would recommend further funding in that vein. (Dkt. #15, p. 10). The Court
also ordered that any further ex parte proceedings and funding beyond that already granted was
subject to Howard’s compliance with the reporting standards set out in the order. (Dkt. #15, p.
11).
In the January 30, 2014 Memorandum Opinion and Order, the Court explained that it
provisionally denied Howard’s budget request to the extent his Budget Letter: (1) sought a
forensic psychological expert in pursuit of an Atkins type claim that has already been ruled upon
by the state court, and (2) sought further mitigation investigation services, pending a justifiable
reason for the additional funding supported by the requested reports. (Dkt. #18, p. 2).
In Howard’s Second Application for Authorization for Additional Funding (Dkt. #23, p.
29), Howard requested $14,000 (40 hours x $350 per hour) for a preliminary evaluation
conducted by Dr. Woods. This Court recommended to the Chief Circuit Judge of the United
States Court of Appeals for the Fifth Circuit that the amount of $14,000 for expenses for the

87

services of a mental health consultant was reasonable and necessary to provide fair
compensation for services of an unusual character and duration. (Dkt. #31, p. 3). The Chief
Circuit Judge of the Fifth Circuit approved the amount of $14,000 for Dr. Woods’ services.
(Dkt. #55).
On September 22, 2015, Howard filed his opposed motion for funding for two additional
experts. (Dkt. #44). Howard asserted that Dr. Woods believed that Howard suffered from an
intellectual disability or mild mental retardation and he should be examined by a
neuropsychologist, Dr. Richard Temple, and by a intellectual disability expert, Dr. James Patton.
Howard requested that the Court authorize $4,000 for each expert plus reasonable expenses for
each expert for his services. On September 30, 2016, the Court approved funding for Dr. Patton
and Dr. Temple in the amount of $4,000, for each expert, plus reasonable expenses for each
expert. (Dkt. #56).
On December 28, 2015, Howard filed his motion for additional funding for previouslyauthorized expert (Dkt. #50). Howard stated that the time for Dr. Woods to perform his services
in evaluating Howard and court and medical records had been underestimated and that an
additional 18.75 hours were needed.

Howard requested additional funds in the amount of

$6,562.50 (18.75 x $350) to pay Dr. Woods for services performed over the $14,000 that had
been previously authorized. Without meeting the Court’s reporting requirements articulated in
Dkt. #15, Howard also requested funding for an additional 10 hours of time for a total amount of
$3,500 for Dr. Woods.

88

On September 30, 2016, the Court approved the amount of $6,562.50 for Dr. Woods’
previously performed services. (Dkt. #56). The Court denied the request for the additional
$3,500 for Dr. Woods for possible work that might be needed in the future because Howard did
not demonstrate that there was a need for additional services service by Dr. Woods at that time.
(Dkt. #56, pp. 5–6).
Approximately eight months later, on May 24, 2017, Howard filed his renewed motion
for additional funding for previously-authorized expert, Dr. Woods (Dkt. #66). In his motion,
Howard requested an additional $5,000 in funding so that Dr. Woods could review the work of
experts, Drs. Temple and Patton, and complete a final report concerning the mental health issues
of Howard. Once again, Howard did not address the necessary reporting standards set out in
Dkt. #15, pp. 10–11.
On June 15, 2017, the Court issued its order on Howard’s renewed motion (Dkt. #66) and
found that of the approved $36,000 in experts fees that more than $20,000 had been allocated for
the services of Dr. Woods. (Dkt. #71). The Court held that the request for additional funding in
the amount of $5,000 for Dr. Woods for developing the potential claim did not rise to the level
of “reasonable and necessary to provide fair compensation for services of an unusual character
or duration,” and, as such, did not meet the standard for authorizing the additional funds. (Dkt.
#71, p. 2).
On September 12, 2017, Howard filed his second motion for additional funding for
previously-authorized expert, Dr. Wood. (Dkt. #74). Howard requested additional funding in

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the amount of $21,350 for Dr. Woods to compensate him for the time had already spent
investigating the possibility that Howard has an intellectual disability, and to permit him to
conduct an in-depth review of the trial record, and materials generated in the course of the
federal habeas investigation, and complete a final report addressing the mental health issues.
In his motion, Howard conceded that although his three experts investigated the viability
of an Intellectual Disability (formerly mental retardation) claim from each’s perspective
specialty, the experts concluded that an intellectual disability claim was not feasible. (Dkt. #74,
p. 2). Howard stated that since the intellectual disability claim was not feasible, that Dr. Woods
needed to assess the effect of the psychotic mental illness Howard suffers, schizophrenia, and his
neuropsychological impairments on his functioning at the time of crime, at the time his
confession was taken by the police, and at trial, and how Howard’s illness and brain impairments
would have reduced his moral culpability for the crime. (Dkt. #74, p. 3).
On September 13, 2017, the Court’s Order (Dkt. #75) found that Howard acknowledged
that there was no basis for a claim under Atkins. The Court noted that the Fifth Circuit has
declined to extend Atkins further to claims of mental illness and has rejected a claim that counsel
was ineffective for failing to investigate “organic brain damage” and obtaining a proper
neuropsychological exam. Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014), cert. denied, 135 S.
Ct. 951 (2015). The Court found that the pending request for $21,350 for additional services by
Dr. Woods did not rise to the level of “reasonable and necessary to provide fair compensation for
services of an unusual character or duration,” and, as such, did not meet the standard for the

90

authorization of additional funds because he was seeking funding for a claim that was not
cognizable.
Howard was provided a total of $36,000 in expert funding to explore viable areas
pertaining to cognizable claims to assist his efforts in obtaining federal habeas relief. Howard’s
requests for additional funding after it was determined that his Atkins’ claim was not viable was
nothing more than a fishing expedition in the hopes of uncovering evidence, which may or may
not be admissible in a federal habeas proceeding. Howard’s ancillary complaints of harm
pertaining to the denial of his additional requests for funding for Dr. Woods is considered
specious and disingenuous.
6.

Further Application of Martinez and Trevino to Howard’s claim.

While this Court remains unconvinced that Howard’s first IATC claim is procedurally
defaulted, the Court will assume, arguendo, that the claim is unexhausted and will examine his
arguments on the merits. To succeed in establishing cause to excuse the procedural default of
his ineffective assistance of trial counsel claims, [petitioner] must show that: (1) his underlying
claims of ineffective assistance of trial counsel are “substantial,” meaning that he “must
demonstrate that the claim[s] ha[ve] some merit,” Martinez, 132 S. Ct. at 1318; and (2) his
initial state habeas counsel was ineffective in failing to present those claims in his first state
habeas application. See id.; Trevino, 133 S. Ct. at 1921.
As to his Martinez and Trevino claim, the controlling question is simply whether the
petitioner fairly presented the substance of the federal habeas claim to the state court. Claims

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made under Strickland and Wiggins challenge “counsel’s decision to limit the scope of their
investigation into potential mitigating evidence” and focus on the adequacy of the investigation
supporting counsel’s strategic decisions to direct their limited resources for further investigation
and trial preparation. See Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 673, 699–700.
Although Howard’s federal Petition contends his trial counsel overlooked additional
evidence, it alleges the same deficiencies and necessarily challenges the same strategic decisions
challenged in his state habeas proceeding based on the same investigation conducted by trial
counsel up to that point. As demonstrated at considerable length above, see supra, Howard
fairly presented the substance of the claim in state court and it is exhausted. This Court may not
consider the new evidence submitted by Howard. See Escamilla v. Stephens, 749 F.3d 380,
394–95 (5th Cir. 2014) (“We conclude that Martinez does not apply to claims that were fully
adjudicated on the merits by the state habeas court because those claims are, by definition, not
procedurally defaulted.…Thus, once a claim is considered and denied on the merits by the state
habeas court, Martinez is inapplicable, and may not function as an exception to Pinholster’s rule
that bars a federal habeas court from considering evidence not presented to the state court.”).
(citations omitted).
In his briefing, Howard discusses Sorto v. Davis regarding the issue of whether the court
may consider evidence that was not presented to the state court. 859 F.3d 356 (5th Cir. 2017),
opinion withdrawn on grant of rehearing, 881 F.3d 933 (5th Cir. 2018). Sorto dealt at length
with the issue of whether evidence that was not presented to the state courts may be considered

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by a federal district court. The Fifth Circuit observed that only the record that was before the
state court is exhausted and ordinarily only such evidence may be considered by a federal district
court. Id. at 361 (citations omitted).
The Fifth Circuit, however, recognized an exception.

Exhaustion is not required if

“circumstances exist that render [the available state corrective] process ineffective to protect the
rights of the applicant.” Id. at 363 (citing § 2254(b)(1)(B)(ii)). It was noted that “Texas law
does not provide for ‘investigative or expert funding . . . for the preparation of subsequent writ
applications, as it does for preparation of an initial writ application.’” Id. at 364 (quoting Ex
parte Blue, 230 S.W.3d 151, 167 (Tex. Crim. App. 2007)). Due to the lack of funding, the Fifth
Circuit found that “Texas procedures did not afford Sorto an adequate opportunity to vindicate
his federal rights.” Id. The Court accordingly held that he was excused from the exhaustion
requirement. Id. at 365.
As was previously noted, the Fifth Circuit subsequently withdrew the Sorto opinion and
remanded the case to the district court because of the funding issue in light of the Supreme
Court’s recent decision in Ayestas v. Davis, 138 S. Ct. 1080 (2018). Sorto v. Davis, 716 F.
App’x 366 (5th Cir. 2018). Despite the withdrawal of the opinion, the opinion is noteworthy in
recognizing once again that exhaustion is ordinarily required, in the absence of an exception. In
the present case, Howard did request and receive funding for a mitigation investigator at the state
habeas level.

(Dkt. #76-17).

Howard also received significant funds for a mitigation

investigator and experts at the federal habeas level. (See Section V.A.5). He is not in the same

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posture as the petitioner in Sorto. He has not shown a basis for being excused from the
exhaustion requirement.
Having re-weighed the “new” mitigating evidence together with the mitigating evidence
actually presented to Howard’s jury at trial against: (1) the facts and circumstances of Howard’s
offense and (2) Howard’s history of criminal and antisocial behavior detailed in Howard’s new
evidence, this Court finds there is no reasonable probability that, but for the failure of Howard’s
trial counsel to more fully investigate Howard’s background, develop, and present any of the
“new” evidence contained in Howard’s amended petition and the exhibits accompanying same,
the jury’s answers to any of the Texas capital sentencing scheme’s special issues would have
been any different. In fact, as explained above, much of this “new evidence” would likely have
assisted the prosecution in obtaining an affirmative answer to the future dangerousness special
issue. Howard’s ineffective assistance claim in his amended petition fails to satisfy the prejudice
prong of the Strickland analysis. Since Howard has not show prejudice, he has not satisfied the
requirements of Martinez/Trevino.
7.

Review of State Habeas Counsel’s performance.

Although this Court finds that Howard’s trial counsel was not deficient in his
performance nor prejudiced Howard’s defense, this Court will review Howard’s claim that his
state habeas counsel provided ineffective assistance of counsel post-conviction. Specifically,
Howard claims his state habeas counsel was purportedly ineffective for failing to conduct any
meaningful extra-record investigation of Howard’s life history. Howard asserts that state habeas

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counsel’s purported ineffective of assistance of counsel is “cause to excuse any procedural
default of the substantial, underlying clam that trial counsel was ineffective in failing to
investigate, develop and present an adequate life history and to undertake the mental health
assessment called for by the life history.” (Dkt. #76, p. 66).
Howard contends that his state habeas counsel failed to: (1) adequately reinvestigate
Howard’s mitigation evidence, (2) attach adequate extra-record evidence to the state habeas
petition to support the raised challenges to the ineffective assistance of counsel claims against
trial counsel, (3) have any evidence in his [state habeas counsel] files of affidavits or memos to
the file of interviews of family, friends, educators, or other persons who had knowledge of
Howard’s psycho-social history, including no evidence that any expert witnesses, particularly
those with mental health expertise, had been consulted or hired, despite claims raised in the state
writ application pertaining to competency, the insanity defense and mental retardation, (4) have
his billing records show that he independently investigated Howard’s psycho-social history, and
(5) preserve for the record any external impediment that prevented state habeas counsel from
investigating and developing crucial evidence of Howard’s psycho-social history. (Dkt. #76, pp.
66–70).
Much of Howard’s argument is based on the assumption that state habeas counsel is
ineffective if his billing records and file documentation are not detailed enough to show that
counsel conducted a comprehensive inquiry into Howard’s life and background.17 Howard also
17

To the extent that Howard asserts a claim of ineffective assistance of post-conviction counsel, he fails to state a claim
for which relief may be granted. Title 28 U.S.C. § 2254(I) provides, “[t]he ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising
under section 2254.” See also Martinez v. Ryan, 566 U.S. 1, 17 (2012) (“[W]hile § 2254(i) precludes Martinez from
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presents an underlying theme that if state habeas counsel did not spend at least a set amount of
time researching Howard’s background and psycho-social history that state habeas counsel is per
se ineffective in providing representation. There is no case law that supports a per se finding of
ineffective assistance of counsel based on the amount of time that counsel spends researching a
criminal defendant’s background.
The precise issue before the Court with respect to Howard’s claim, however, is whether
Howard can satisfy the requirements of Martinez and Trevino. He has not satisfied his burden of
showing that: (1) his underlying claims of ineffective assistance of trial counsel are substantial,
see discussion supra, and (2) his state habeas counsel was ineffective in failing to present those
claims in his state habeas application. Preyor, 537 F. App’x at 421. Specifically, Howard fails
to satisfy Martinez’s and Trevino’s test for establishing cause. Under those decisions, Howard
may show cause for his default by demonstrating that his underlying ineffective assistance of
trial counsel claim is substantial and that his state post conviction counsel was ineffective under
Strickland. The problem for Howard, however, is that his claim of ineffective assistance of trial
counsel is not substantial.
To demonstrate that it is substantial, Howard would have to show that he might be able to
satisfy Strickland, 466 U.S. at 687, which requires a prisoner to prove both deficient
performance and actual prejudice. As discussed previously, Howard failed to demonstrate that
his trial counsel’s performance was deficient and caused him actual prejudice. Moreover, even

relying on the ineffectiveness of his post conviction attorney as a ‘ground for relief,’ it does not stop Martinez from using
it to establish ‘cause.’”).
96

considering the admissible18 new evidence Howard attached to his federal petition, Howard still
fails to show that his IATC claim against his trial counsel was substantial. As the Court did not
find that Howard’s trial counsel was deficient, Howard is “preclude[d] [from] a finding of cause
and prejudice,” sufficient to trigger the application of Martinez and Trevino. Sells, 536 F. App’x
at 492. For reasons heretofore explained, the Court is of the opinion, and so finds, that Howard
has not satisfied either requirement in order to overcome the purported procedural default with
respect to his ineffective assistance of counsel claims.
The Supreme Court has held that “appellate counsel who files a merits brief need not
(and should not) raise every nonfrivolous claim, but rather may select from among them in order
to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000).
In order to prove ineffective assistance, the defendant must demonstrate that “a particular
nonfrivolous issue was clearly stronger than issues that counsel did present.” Id. Moreover,
“[c]ounsel cannot be deficient for failing to press a frivolous point.” Sones v. Hargett, 61 F.3d
410, 415 n.5 (5th Cir. 1995); see also Koch v. Puckett , 907 F.2d 524, 527 (5th Cir. 1990).
Howard has not attempted to demonstrate that his ineffective assistance of trial counsel
claims were “clearly stronger” than the claims raised by his state habeas counsel. Additionally,
as already discussed, the ineffective assistance claims that Howard asserts should have been
raised are without merit. Accordingly, state habeas counsel did not perform deficiently by
failing to raise those claims.

18

The Court will not consider the inadmissible evidence for purposes of this analysis.
97

Deference is owed to the strategic decisions of state habeas counsel in deciding which
claims to raise. Jones v. Barnes, 463 U.S. 745, 751–54 (1983). State habeas counsel is not
ineffective and a petitioner is not prejudiced for failing to raise meritless claims. Segundo, 831
F.3d at 350–51.
For reasons heretofore explained, the Court is of the opinion, and so finds, that Howard
has not satisfied the necessary requirements in order to overcome the alleged procedural default.
Nonetheless, to the extent that Howard’s ineffective assistance of counsel claims overlap with
claims that were actually raised by state habeas counsel, he has not satisfied the requirements of
§ 2254(d). Howard has not shown that he is entitled to relief on his first IATC claim.
B.

Howard’s Second Claim (IATC): Trial counsel provided constitutionally ineffective
representation by failing to thoroughly investigate Howard’s psychosocial history and
seek timely and relevant evaluations of his mental condition regarding (a) competence to
stand trial; (b) criminal responsibility for capital murder; and (c) whether his waiver of
Miranda rights and subsequent confession were knowing and intelligent.
Howard’s second ineffective assistance of counsel claim asserts that his trial counsel’s

alleged failure to adequately investigate Howard’s psycho-social history and mental disorders
prevented trial counsel from making a successful challenge to Howard’s: (1) competency to
stand trial, (2) his criminal responsibility for capital murder, and (3) whether his waiver of his
Miranda rights and subsequent confession were knowing and intelligent.

In his amended

petition, Howard further explains the “criminal responsibility for capital murder” issue as his
trial counsel’s alleged failure to adequately investigate Howard’s psycho-social history and

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mental disorder; thus, preventing trial counsel “from presenting a potentially successful insanity
defense.” (Dkt. #76, p. 81).
1.

Exhaustion of the claim.

As noted previously, this Court must determine whether these three sub-issues of
Howard’s second IATC claim were exhausted or procedurally defaulted. A federal court may
not grant habeas relief unless it appears that the applicant has exhausted the remedies available
in the courts of the state. See § 2254(b)(1)(A); Richter, 562 U.S. at 86, 103–04. Howard’s
amended petition is silent as to the issue of exhaustion of his second IATC claim or the subissues raised under his second IATC claim. The Director contends that Howard’s IATC claims
regarding competency and his confession under Miranda were reasonably adjudicated in state
court, and thus, exhausted. (Dkt. #79, p. 78). The Director also contends that Howard’s IATC
claim regarding criminal responsibility is unexhausted, defaulted, and meritless. (Id.).
In the state court below, state habeas counsel raised the argument that while trial counsel
investigated and determined that Howard had mental deficiencies, and discussed Howard’s
ADHD and potential diagnosis of schizophrenia, trial counsel did not use of any of this evidence
or any of the state habeas counsel’s evidence of mental retardation to attack the voluntariness of
Howard’s confession (claim 5). (SHCR 53). State habeas counsel also argued that trial counsel
failed to: (1) handle mental competency issues appropriately, (2) raise the notice of the insanity
defense timely, (3) develop the available evidence of mental illness, specifically obtaining the
jail records, which included a report from Dr. Guillett, the Hardin County Jail medical provider,

99

that supported a theory of mental illness, and (4) call Dr. Fason (Howard’s trial mental health
expert) in the second competency hearing (SHCR 53–55).
After reviewing the pleadings and evidence accumulated in this case, the state trial court
issued findings of fact regarding whether trial counsel was ineffective regarding the issues of
mental competency and the voluntariness of Howard’s confession responsive to Grounds Five
and Sixteen, which includes the following findings:
47.

[Howard’s] trial counsel presented evidence to the jury regarding [Howard’s]
mental state and claim of mental retardation.

48.

[Howard’s] trial counsel presented expert testimony regarding [Howard’s] mental
state from Dr. James Duncan, Ph.D., a licensed psychologist.

49.

[Howard’s] trial counsel presented non-expert testimony from [Howard’s] prior
educators, coaches, friends, and family all regarding [Howard’s] behavior and
mental capabilities in their individual interactions with him.

50.

[Howard] was provided his Miranda rights by law enforcement prior to providing
his statement.

51.

[Howard] was cognizant of what he was doing at the time he gave his statement.

52.

[Howard] indicated in writing that he was aware of his Miranda rights.

53.

[Howard] did not object to the introduction of his statement into evidence.

54.

[Howard’s] trial counsel cross examined law enforcement as to [Howard’s]
behavior while providing his statement.

55.

[Howard’s] trial counsel cross examined law enforcement as to the voluntariness
of [Howard’s] statement.

56.

[Howard] placed before the jury the issue of [Howard’s] mental issues through
both cross examination of state’s witnesses and direct examination of defense
witnesses.
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57.

[Howard] challenged before the jury the voluntariness of [Howard’s] statement
through the cross examination of state’s witnesses.

Supp. SHCR 29.
The state habeas court went on to issue the following conclusions of law regarding
allegations of ineffective assistance of trial counsel pertaining to the issues of mental
competency and voluntariness of Howard’s confession:
58.

[Howard’s] statement was given knowingly, intelligently, and voluntarily.

59.

[Howard] was not mentally ill nor mentally retarded.

60.

[Howard’s] trial counsel’s performance did not fall below an objective standard
of reasonableness.

61.

[Howard’s] trial counsel’s performance was not deficient.

62.

[Howard’s] trial performance did not prejudice [Howard’s] defense.

63.

[Howard’s] trial counsel provided effective assistance of counsel.

Supp. SHCR 30.
This Court must give deference to the state habeas court’s findings on these issues. See
Cullen, 563 U.S. at 181; Richter, 562 U.S. at 105 (finding that courts must be “doubly”
deferential when § 2254(d) applies). The Court finds that two of Howard’s three sub-claims
raised in his second ineffective assistance claim have been exhausted—(1) mental competency to
stand trial and (2) the voluntariness of his confession.
While the state habeas record establishes that Howard’s state habeas counsel did raise an
issue as to the timeliness of asserting an insanity defense by trial counsel, the state habeas record

101

does not reflect that an issue for failing to raise a potentially successful insanity defense was
presented to the state habeas court. It does not appear from the state habeas record that Howard
exhausted the claim that his trial counsel was ineffective because his trial counsel failed to
“present[] a potentially successful insanity defense.”19 As such, this sub-claim is unexhausted
and procedurally defaulted.
2.

Deficient Representation of Trial Counsel.

Howard’s second IATC claim is a continuation of his first IATC claim. As this Court
has already reviewed Howard’s claim that his trial counsel was ineffective for failing to
adequately investigate his psycho-social history and mental disorder in his first IATC claim, this
Court will not repeat the full analysis here. The Court incorporates its above discussion into its
analysis regarding Howard’s second IATC claim.
a.

Howard fails to show the state habeas court’s findings were unreasonable
regarding his mental competency claim.

Howard’s amended petition is silent regarding how the state habeas court is unreasonable
pertaining to its findings of fact and conclusions of law regarding Howard’s competency to stand
trial. Howard also fails to discuss and establish how trial counsel was deficient for the purposes
of Strickland, other than his complaint that trial counsel is deficient for allegedly failing to
conduct an adequate mitigation investigation regarding Howard’s mental illness. The Court has
already addressed Howard’s complaint regarding the adequacy of trial counsel’s mitigation
investigation above.
19

This Court found that Howard’s ineffective of assistance claim regarding the alleged failure to adequately investigate
mitigation evidence was exhausted, see supra.
102

Howard merely points to the 2017 hearsay statements of his federal habeas expert
witness—Dr. Woods—as reported to his federal habeas attorney, regarding Howard’s prodromal
mental illness to suggest incompetency during the guilt/innocence portion of his 2001 trial.20
(Dkt. #76, pp. 81–82). Without more, however, such inadmissible hearsay evidence fails to
negate whether Howard had “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he ha[d] a rational as well as factual
understanding of the proceedings against him.” Indiana v. Edwards, 554 U.S. 164, 170 (2008)
(citing Dusky v. United States, 362 U.S. 402 (1960)) (per curiam). The two are not coextensive:
a defendant can be both mentally ill and competent to stand trial. Mays, 757 F.3d at 216; see
Mata v. Johnson, 210 F.3d 324, 329 n.2 (5th Cir. 2000) (finding “presence or absence of mental
illness or brain disorder is not dispositive” of competency); see also Patterson v. Cockrell, 69 F.
App’x 658, 2003 WL 21355999 at *4–6 (5th Cir.) (not published), cert. denied, 540 U.S. 1008
(2003).

Other than Dr. Wood’s inadmissable hearsay statements regarding Howard’s

competency, Howard failed to present any other admissible evidence or legal argument that
Howard was incompetent to stand trial. (See Dkt. #76, pp. 81–82).
The record in this case reveals that the issue of whether Howard was competent to stand
trial was a major concern at trial, and the trial court went to great lengths to ensure that he was

20

Howard’s federal habeas counsel’s reporting of her telephone conversation with Dr. Woods regarding his opinion
pertaining to Howard’s competency to stand trial in 2001 is nothing more than hearsay. See FED. R. EVID. 801(c). Dr.
Woods’ statements, through counsel, do not qualify for an exception under FED. R. EVID. 803, and thus, is not allowed
to be considered by this Court. As to the claim that the Court did not sufficiently provide funds for Howard’s expert
witnesses, that claim has been addressed in Section VI.A.5. The Court still finds this argument to be specious and
disingenuous.
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competent before preceeding with the trial on the merits. At Howard’s second competency
trial,21 the State’s psychiatric expert, Dr. Ned Groves testified that a person can be competent and
still suffer from schizophrenia.22 (32 R.R. 26–28). Dr. Groves also testified that a person can
have ADHD and still be competent to stand trial.23 (32 R.R. 31). He further testified that he
found Howard competent to stand trial based on his examination of Howard. (32 R.R. 33).
Dr. James Duncan, Howard’s court-appointed psychological expert, testified that Howard
was able to tell Dr. Duncan of the criminal charge against him and gave “a straightforward
description of the events leading to his arrest.” (31 R.R. 117–20). Under cross-examination by
the prosecutor, Dr. Duncan testified:
Q.

A.

He seemed to give me a straightforward description of the events
leading to his arrest.

Q.

In fact, he said it was an incident in a store. “I attempted to rob the
store. It was a Chevron car wash in Silsbee,” right?

A.

Yes, sir.

Q.

“I intentionally shot a woman,” right?

A.

Yes.

Q.
21

And Jamaal Howard went into a lot of detail about the facts of the
crimes that he was charged with, didn’t he?

“It was in May, I think May 12th.” Is that what he said?

Howard’s first competency trial ended in a mistrial. (30 R.R. 36–37).

22

Dr. Groves provided a report detailing all the topics covered or attempted with Howard during his examination (1 C.R.
138–42), and testified for the State regarding these matters during both competency hearings (29 R.R. 120–46; 32 R.R.
20–63). Likewise, Dr. Gripon provided a report (2 C.R. 213–17), and testified for the State during the first trial on
competency (29 R.R. 146–69), and in the rebuttal during both stages of trial. (23 R.R. 92–117; 26 R.R. 98–117).
23

Howard was diagnosed with ADHD as a child.
104

A.

Yes.

Q.

He told you he had a gun?

A.

Yes, he did.

Q.

He said he decided to go into the store; “Did not know I was going
to shoot someone,” right?

A.

Yes.

Q.

He said when he went in the store, “she,” meaning the clerk, “She
got up. She was sitting on the counter.” He told you that?

A.

Yes.

Q.

“I shot the gun at her.” That’s what he told you?

A.

Yes.

Q.

“I seen it hit her”?

A.

Yes.

Q.

“She fell on the floor”?

A.

Yes.

Q.

“I took money, cash; and I left,” right?

A.

Yes.

Q.

“I ran to the back of the store, and I left,” correct?

A.

Yes.

Q.

“I ran to my house,” is what he told you?

A.

As I recall.

105

Q.

And you made notes, too, about it, didn’t you?

A.

Yes, I did.

Q.

“I was afraid somebody was going to come to the store,” right?

A.

Yes.

Q.

“The police came to my house soon afterwards,” right?

A.

Yes.

Q.

“I was next door because no one lives there,” is what he told you?

A.

That’s what he told me.

Q.

“And they checked that house and found me,” is what he told you?

A.

Yes.

Q.

He told you it was capital murder during an attempted robbery?

A.

Yes.

Q.

And, in fact, y’all talked a little bit about the possible punishment
that Jamaal might get?

A.

I asked what he understood to be the possible consequences.

Q.

And what did he tell you?

A.

He told me that he — as I recall, he told me that he could get
substantial jail time; he could get life in prison or something.

(31 R.R. 117–120).
Dr. Duncan also testified that schizophrenia could be one explanation for some of the
symptoms Howard was exhibiting, (31 R.R. 121–22), and he concluded that Howard’s

106

competency to stand trial was questionable and that he may need psychiatric treatment. (31 R.R.
123). Based on the evidence and credible testimony of the witnesses, the competency trial jurors
made the factual determination and concluded that Howard was competent to stand trial. (32
R.R. 133–34).
The Supreme Court has concluded that competency to stand trial is a question of fact.
Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); see also Thompson v. Keohane, 516
U.S. 99, 113 (1995) (noting the “practical considerations that have prompted the Court” to
consider competency a “factual issue,” namely that the trial court has a “superior capacity to
resolve credibility issues”); Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per curiam)
(considering the state court’s conclusion regarding the defendant’s competence to be a factual
finding). In Felde v. Blackburn, the Fifth Circuit relied on Fulford in determining that a state
court’s finding of competence to stand trial is a finding of fact. Felde v. Blackburn, 795 F.2d
400, 402 (5th Cir. 1986) (“The state court’s finding of mental competence to stand trial...is a
finding of fact entitled to a presumption of correctness.”) (citing Fulford, 462 U.S. at 116-17).
Section 2254(e) limits the Court’s review of state-court fact findings, even if no claims
were presented on direct appeal or state habeas. Under § 2254(e)(1), “a determination of a
factual issue made by a State court shall be presumed to be correct” and the habeas petitioner
bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1). To the extent Howard’s claim challenges factual determinations made
by the state trial court, the Court applies § 2254(e)(1). Because competency is a question of fact,

107

the Court affords the state trial court the deference due under § 2254(e)(1). Austin v. Davis, 876
F.3d 757, 779 (5th Cir. 2017); see Appel v. Horn, 250 F.3d 203, 210 (3rd Cir. 2001).
Under § 2254(e)(1), the state trial court’s determination that Howard was competent to
stand trial is presumed correct. In his interview with Dr. Duncan, Howard clearly demonstrated
an understanding of the charges against him and the possible consequences, as well as an ability
to make strategic choices and to communicate clearly. Howard bears the burden of rebutting
that presumption of correctness by clear and convincing evidence. Although Howard presents
some evidence of mental illness that developed after his trial with his federal habeas petition,24
he has not demonstrated by clear and convincing evidence that he was not competent to stand
trial.
Howard contends that trial counsel was ineffective because he allegedly failed to
adequately investigate Howard’s psycho-social history and mental disorders thus preventing trial
counsel from making a successful challenge to Howard’s competency. The fallacy in this
argument is that competency to stand trial revolves around the criminal defendant’s
understanding of the charges and proceedings and his ability to communicate with his
counsel–not with trial counsel’s investigative abilities to search for every person who has
knowledge of the defendant’s past. “There comes a point at which evidence from more distant
relatives can reasonably be expected to be only cumulative, and the search for it distractive from
more important duties.” Bobby v. Van Hook, 558 U.S. at 11. Even if it were debatable whether
trial counsel did as thorough a job as appropriate in adequately investigating Howard’s psycho24

TDCJ medical records demonstrate that Howard was diagnosed with schizophrenia in July 2002. (Dkt. #76-11).
108

social history and mental disorders, trial counsel’s investigation into more mitigating evidence
has little bearing on Howard’s understanding of the proceedings and consequences and his
ability to communicate.
Moreover, Howard fails to establish that the state court decision—that Howard failed to
prove deficient performance and prejudice (Supp. SHCR 26-27)—was based on an unreasonable
determination of the facts in light of the evidence presented in the state proceedings or that its
decision was an unreasonable application of Strickland under § 2254(d). Without this, Howard
also has not shown that there is a reasonable probability that, but for trial counsel’s failure to
adequately conduct a mitigation investigation, the result of the proceeding would have been
different and Howard would have been found incompetent to stand trial. Strickland, 466 U.S. at
694; Felde v. Butler, 871 F.2d 281, 282–83 (5th Cir. 1987). He cannot establish that reasonable
jurists could debate this conclusion by the state court. Because Howard has not shown prejudice,
there is no need to consider whether counsel was constitutionally deficient. Howard has failed to
overcome § 2254(d). This request for relief is denied.
b.

Howard’s insanity claim is unexhausted, procedurally defaulted and
meritless.

In his amended petition, Howard explains his “criminal responsibility for capital murder”
issue as his trial counsel’s alleged failure to adequately investigate Howard’s psycho-social
history and mental disorder; thus, preventing trial counsel “from presenting a potentially
successful insanity defense.” (Dkt. #76, p. 72). Above, this Court finds that this claim is

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unexhausted. In addition to this claim being unexhausted, this claim is also procedurally barred
and meritless.
1.

The procedural default doctrine.

The AEDPA requires that a prisoner exhaust his available State remedies before raising a
claim in a federal habeas petition. See § 2254(b)(1)(A) (stating that habeas corpus relief may not
be granted “unless it appears that...the applicant has exhausted the remedies available in the
courts of the State”). The exhaustion requirement is satisfied if the substance of the federal
habeas claim was presented to the highest state court in a procedurally proper manner. Baldwin
v. Reese, 541 U.S. 27, 29–32 (2004); Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002). In
Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals.
Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). To properly exhaust a claim the
petitioner must “present the state courts with the same claim he urges upon the federal courts.”
Picard, 404 U.S. at 276.
Howard did not raise this particular insanity claim before the Texas Court of Criminal
Appeals; thus, this claim is unexhausted. Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.
2001). If Howard, however, were to return to state court to satisfy the exhaustion requirement
and if the state court found that his insanity claim was procedurally barred, the unexhausted
claim would be considered procedurally barred from federal habeas review. See Keeney v.
Tamayo-Reyes, 504 U.S. 1, 9–10 (1992) (holding an unexhausted claim is procedurally defaulted

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for federal habeas purposes if the claim would now be procedurally barred by state court);
Coleman v. Thompson, 501 U.S. at 735 n.1 (same).
Even though Howard did not request a stay and abeyance on his insanity claim, the Court
should consider whether this issue should be stayed, as opposed to being dismissed for failure to
exhaust. The Supreme Court has held that a district court has the discretion to stay a mixed
petition to allow a petitioner to present his unexhausted claims to the state court in the first
instance and then return to federal court for review of his perfected petition. Rhines v. Weber, 544
U.S. 269 (2005). The Supreme Court stressed that a stay should rarely ever be granted:
For these reasons, stay and abeyance should be available only in
limited circumstances. Because granting a stay effectively excuses
a petitioner’s failure to present his claims first to the state courts,
stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to
exhaust his claims first in state court. Moreover, even if a petitioner
had good cause for that failure, the district court would abuse its
discretion if it were to grant him a stay when his unexhausted claims
are plainly meritless.
Id. at 277. The Supreme Court further held that a stay and abeyance is appropriate only if the
petitioner has not engaged in intentional delay. Id. at 278.
Even if a stay and abeyance were potentially available, Howard has not shown good cause
for failing to exhaust his insanity claim, that his insanity claim was not plainly meritless or that he
has not engaged in intentional delay. See Miller v. Dretke, 431 F.3d 241, 254 (5th Cir. 2005)
(citing Rhines). A stay is not appropriate.

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In this case, Howard is unable to return to state court to present any unexhausted claims,
because doing so would be barred by Texas’ abuse of the writ doctrine codified in Article
11.071, Section 5(a) of the Texas Code of Criminal Procedure.25 Fuller v. Johnson, 158 F.3d
903, 906 (5th Cir. 1998). The Fifth Circuit has consistently held that Texas’ abuse of the writ
doctrine is an independent and adequate state procedural bar foreclosing federal habeas review
of unexhausted claims. See Williams v. Thaler, 602 F.3d 291, 305–06 (5th Cir. 2010) (holding a
petitioner’s claims were procedurally defaulted because if the petitioner returned to state court,
the court would not consider the merits under Article 11.071, § 5(a)); Rocha v. Thaler, 626 F.3d
815, 832 (5th Cir. 2010); Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001). As a result,
Howard’s unexhausted insanity claim should be deemed procedurally defaulted in federal court.
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir.
2004).
Federal habeas relief on the basis of a procedurally defaulted claim is barred unless the
petitioner can demonstrate cause for the default and actual prejudice arising from the default or
demonstrate the failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). Howard
makes no attempt to show a “fundamental miscarriage of justice” will result from the Court’s
dismissal of this claim. (See Dkt. #76, p. 83).

25

Article 11.071, Section 5(a) provides that a state court may not consider the merits of, or grant relief on, claims
presented in a successive state habeas application unless the legal or factual issues were unavailable at the time the
previous application was filed or, but for a violation of the Constitution, no rational juror could have found the applicant
guilty or voted in favor of a death sentence.
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Howard does not raise the specter of Martinez or Trevino to establish that the alleged
ineffectiveness of his post-conviction counsel should be cause to excuse the default. Even if he
had addressed Martinez and Trevino in his briefing, they would be inapplicable to this claim as
he has failed to demonstrate that the claim is “substantial” See Garza v. Stephens, 738 F.3d 669,
676 (5th Cir. 2013) (finding that Martinez requires a showing that the defaulted IATC claim is
“substantial” and that state habeas counsel was constitutionally ineffective under Strickland for
not raising it) (citing Martinez, 566 U.S. at 14)). Prior to Martinez, an attorney’s negligence in a
postconviction proceeding could not serve as “cause.” Coleman, 501 U.S. at 755. Martinez and
Trevino carved out a “narrow” exception to the Coleman rule for claims asserting ineffective
assistance of trial counsel (IATC). Trevino, 569 U.S. at 422. Now, a petitioner may meet the
cause element by showing: (1) “that habeas counsel was ineffective in failing to present those
claims in his first state habeas proceeding” and (2) “that his [IATC claim] is substantial—i.e.,
has some merit.” Garza, 738 F.3d at 676. Neither of these “cause” elements are satisfied
regarding this claim.
With regard to this IATC claim, Howard fails to assert, let alone establish, that his habeas
counsel was “ineffective in failing to present those claims in his first state habeas proceeding.”
Garza, 738 F.3d at 676. In the habeas context, allegations of ineffective assistance are reviewed
under the familiar two-prong test established in Strickland. To establish deficient performance
under Strickland, a petitioner must do more than identify issues or claims that habeas counsel did
not raise and are now barred. Strickland, 466 U.S. at 689 (“Even the best criminal defense

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attorneys would not defend a particular client in the same way.”); Smith v. Murray, 477 U.S.
527, 535 (1986) (“[T]he mere fact that counsel failed to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it, does not constitute cause for a
procedural default.”); see also Hittson v. GDCP Warden, 759 F.3d 1210, 1265 (11th Cir. 2014)
(finding “generalized allegations are insufficient in habeas cases” to meet the Martinez
exception).
Indeed, a state habeas attorney “need not (and should not) raise every nonfrivolous claim,
but rather may select from among them in order to maximize the likelihood of success on
appeal,” because “counsel cannot be deficient for failing to press a frivolous point.” Vasquez v.
Stephens, 597 F. App’x 775, 780 (5th Cir. 2015) (unpublished) (citing Smith v. Robbins, 528
U.S. 259, 288 (2000)). Furthermore, Howard has not shown that he was prejudiced by state
habeas counsel’s allegedly deficient performance—that is, “that there is a reasonable probability
that he would have been granted state habeas relief had the claims been presented in the first
state habeas application.”

Barbee v. Davis, 660 F. App’x 293, 314 (5th Cir. 2016)

(unpublished); Martinez v. Davis, 653 F. App’x 308, 318 (5th Cir. 2016) (unpublished).
The record in this case demonstrates that state habeas counsel raised an IATC claim
relating to insanity asserting that trial counsel was deficient for failing to timely file the notice of
insanity defense. (Supp. SHCR 54). With the heavy deference given to state habeas counsel’s
strategic choices under Strickland, Howard has not shown a reasonable probability that the state
habeas court would have granted relief had state habeas counsel advanced this unexhausted

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claim, much less that the new claim had a better chance of success than the claim raised by state
habeas counsel during Howard’s state habeas proceedings. Accordingly, Howard has not shown
that state habeas counsel’s representation was either deficient or prejudicial enough to provide
cause to overcome the procedural bar of this unexhausted claim.
Finally, regardless of whether Howard establishes a valid claim of ineffective state
habeas counsel under Martinez, he still is not entitled to excuse the procedural bar because the
defaulted claims are also plainly meritless. Again, to overcome a default under Martinez, a
petitioner must also demonstrate that the underlying IATC claim “is a substantial one.”
Martinez, 566 U.S. at 14 (citing Miller-El, 537 U.S. at 322). “For a claim to be ‘substantial,’ a
petitioner ‘must demonstrate that the claim has some merit.’” Reed, 739 F.3d at 774 (quoting
Martinez, 566 U.S. at 14). “Conversely, an ‘insubstantial’ ineffective assistance claim is one
that ‘does not have any merit’ or that is ‘wholly without factual support.’” Reed, 739 F.3d at 774
(quoting Martinez, 566 U.S. at 15–16).
As discussed in below, Howard fails to meet this criteria as well. Consequently, Howard
fails to establish cause under Martinez that would excuse his unexhausted IATC claim regarding
the insanity defense from being procedurally defaulted. Howard is thus barred from receiving
federal habeas relief on this claim.
2.

Insanity defense is meritless.

Howard asserts that his trial attorney was ineffective because he failed to investigate
Howard’s psycho-social history thoroughly and failed to seek timely and relevant evaluations of

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Howard’s mental condition regarding his criminal responsibility for the death of the victim.
(Dkt. #76, p. 81). His argument to support this thesis is that Dr. Woods needs the opportunity to
examine Howard again, but for the Court denying further funding, to test the validity of the
hypothesis of insanity. (Dkt. #76, p. 83).
The Court notes that it has reviewed Howard’s claim that his trial counsel was ineffective
for failing to adequately investigate his psycho-social history and mental disorder in his first
IATC claim, and will rely on its previous analysis here. As to additional funding for Dr. Woods
to conduct extraneous examinations, see supra, Section VI.A.5.
Howard is essentially complaining that his trial counsel was ineffective because he was
not successful in persuading the jury to find that Howard was entitled to the defense of insanity.
Howard’s briefing fails to establish that his counsel’s performance was deficient and that the
alleged deficient performance prejudiced the defense as to Howard’s insanity defense.

In

reviewing counsel’s performance, courts must be “highly deferential,” must eliminate the
“distorting effect of hindsight,” and “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 687.
Howard has failed to put forth any evidence or argument that shows the likelihood of a different
result is substantial, not just conceivable. See Harrington, 562 U.S. at 112.
Under Texas law, “[i]nsanity is an affirmative defense to prosecution when, at the time of
the conduct charged, the actor, as a result of a severe mental disease or defect, did not know that
his conduct was wrong.” Tex. Pen. Code Ann. § 8.01(a) (emphasis added). “There is a general

116

presumption of sanity and the defendant bears the burden of proving, by a preponderance of the
evidence, his insanity at the time of the conduct charged.” Martinez v. State, 867 S.W. 2d 30, 33
(Tex. Crim. App. 1993).
The Director points out, and the Court finds persuasive, that in furtherance of the insanity
defense, trial counsel retained Dr. Fason, who evaluated Howard prior to trial. Trial counsel
presented testimony from Howard’s mother, sister, older brother, cousin, and grandfather
pertaining to Howard’s mental state and unusual behavior the night before the murder. Trial
counsel also presented Howard’s former teachers and coaches to testify the Howard had mental
health issues as a child to help show that Howard did not decide “to act like [he was] crazy”
overnight. (23 R.R. 17). During trial, trial counsel called Dr. Duncan to testify regarding
Howard’s behavior during his March 2001 interview as possibly evidencing an emerging thought
disorder or possible prodromal schizophrenia, and gave his opinion that Howard may be in need
of psychiatric treatment. (See, generally, 21 R.R. 18–44).
On cross-examination, trial counsel elicited testimony from Earl Dabney, a local resident,
that he saw Howard shortly after the crime and described him as having eyes that “looked wild,”
and that were “all glazed over and red like.” (20 R.R. 37). Trial counsel also elicited testimony
on cross-examination of Texas Ranger L. C. Wilson regarding Howard’s unusual behavior at the
time of his arrest, including his being found coiled up like a ball inside a closet in an abandoned
house, grinning from ear to ear, and his laughing in an odd manner at officers who were pointing
guns at him. (20 R.R. 133–35). On the cross-examination of Ranger Wilson, trial counsel

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brought forth details regarding Howard being exceptionally calm and unaffected in talking about
the murder during his statement to the police. (20 R.R. 134–35).
Howard’s jury was instructed and charged on the defense of insanity. (23 R.R. 9–11; 3
C.R. 569–64). In his closing, trial counsel argued how the evidence showed that Howard was
insane at the time of the murder and could not be held criminally responsible for the capital
murder of the victim. (23 R.R. 14–26). The fact that the jury ultimately rejected the defense and
convicted Howard of capital murder does not prove counsel was constitutionally ineffective.
Youngblood, 696 F.2d at 410 (“The fact that trial counsel was unsuccessful in his efforts does not
constitute, in light of the entire record, a basis for habeas relief.”).
This record does not support Howard’s claim that his trial counsel was deficient in
presenting an insanity defense. Howard fails to discuss and establish how trial counsel was
deficient for the purposes of Strickland, other than his complaint that trial counsel is deficient for
allegedly failing to conduct an adequate mitigation investigation into Howard’s prodromal
mental illness. The Court has already addressed Howard’s complaint regarding the adequacy of
trial counsel’s mitigation investigation above.

Even if Howard could establish deficient

performance, he cannot show prejudice. In reviewing such claims, it is important to remember
that counsel’s performance need not be optimal to be reasonable. Richter, 562 U.S. at 104;
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam) (finding a defendant is entitled to
“reasonable competence, not perfect advocacy”).

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Moreover, Howard’s amended petition is silent as to how the state habeas court’s
findings of fact and conclusions of law are unreasonable regarding Howard’s insanity defense.
Howard has not shown, as required by § 2254(d), 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, 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. Howard has not, however, rebutted the finding of fact that he was not insane with
clear and convincing evidence. With respect to the conclusion of law that Howard was not
insane, he at best has only shown that fairminded jurists could disagree about the correctness of
the state court’s decision; thus, the decision was not unreasonable. Coleman, 716 F.3d at 902.
This claim lacks merit. All relief requested for this claim should be denied.
c.

Howard fails to show the state habeas court’s findings were unreasonable
regarding his IATC claim regarding the waiver of his Miranda rights.

Howard argues that if his trial counsel had performed effectively, i.e., conducted an
adequate mitigation investigation regarding Howard’s mental illness, there would be a
reasonable probability that the defense could have successfully challenged his waiver of his
Miranda rights and subsequent confession as not knowing and intelligent and prevented the use
of the confession, which in turn, could have led to a different outcome of the trial. (Dkt. #76, pp.
83–85). Howard’s thesis is tenuous at best, as Howard fails to connect a link between trial
counsel’s alleged failure to conduct an adequate mitigation investigation into Howard’s mental
health background and successfully challenging Howard’s waiver of his Miranda rights and
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subsequent confession.

The Court is also skeptical of the claim that suppression of the

confession could have led to a different outcome of the trial in light of the visual evidence found
on the video tape of the murder at the convenience store. (SX-1).
As this Court has already reviewed Howard’s claim that his trial counsel was ineffective
for failing to adequately investigate his psycho-social history and mental disorder in his first
IATC claim, this Court will not repeat the full analysis here. The Court incorporates its above
discussion into its analysis regarding Howard’s second IATC claim.
d.

Howard fails to show the state habeas court’s findings were unreasonable
regarding the waiver of his Miranda rights.

Howard’s amended petition is silent regarding how the state habeas court is unreasonable
pertaining to its findings of fact and conclusions of law regarding Howard’s waiver of his
Miranda rights. Howard also fails to discuss and establish how trial counsel was deficient for
the purposes of Strickland, other than his complaint that trial counsel is deficient for allegedly
failing to conduct an adequate mitigation investigation regarding Howard’s mental illness. The
Court has already addressed Howard’s complaint regarding the adequacy of trial counsel’s
mitigation investigation above.
Howard merely points to the 2017 hearsay statements of his federal habeas expert
witness—Dr. Woods—as reported by his federal habeas counsel (now hearsay within hearsay),
regarding how Howard’s prodromal mental illness may have impacted his confession and may
have rendered the confession unknowing and unintelligent. (Dkt. #76, pp. 83–85). The Court
cannot accept Dr. Woods’ hearsay statements as clear and convincing evidence on this claim.
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See FED. R. EVID. 801(c). Dr. Woods’ statements, through counsel, do not qualify for an
exception under FED. R. EVID. 803; and thus, the statements are not allowed to be considered by
this Court.
Even if the Court were to accept Dr. Woods’ hearsay statements regarding Howard’s
knowing understanding of his waiver, Howard has failed to show or even allege that the actions
of law enforcement during his arrest and questioning amounted to official coercion such that his
confession was involuntary. See, e.g., Butler v. Stephens, 600 F. App’x 246, 247–48 (5th Cir.
2015); United States v. Blake, 481 F. App’x 961, 962 (5th Cir. 2012) (unpublished) (“While a
defendant’s mental condition ‘may be a significant factor in the voluntariness calculus, this fact
does not justify a conclusion that a defendant’s mental condition, by itself and apart from its
relation to official coercion, should ever dispose of the inquiry into constitutional
voluntariness.’”) (quoting Colorado v. Connelly, 479 U.S. 157, 163–67 (1986)); see also Carter
v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (“[I]n the absence of any evidence of official
coercion, [petitioner] has failed to establish that his confession was involuntary.”).
Consequently, in the absence of any evidence of official coercion, Howard has failed to establish
that his confession was involuntary. See United States v. Raymer, 876 F.2d 383, 386 (5th Cir.
1989).
In his briefing, Howard fails to challenge the state habeas court’s findings of fact or
conclusions of law. Howard has not shown, as required by § 2254(d), that the state court
findings resulted in a decision that was contrary to, or involved an unreasonable application of,

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clearly established federal law as determined by the Supreme Court, 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. Howard has failed to show that the state habeas court’s decision that
trial counsel’s performance was not deficient and did not result in prejudice was a reasonable
application of Strickland’s standards.

Howard has failed to overcome § 2254(d).

Thus,

reasonable jurists could not debate that the state court did not unreasonably apply Strickland in
concluding that trial counsel was not ineffective for not raising a challenge to Howard’s
confession before the state trial court. Howard’s claim is meritless.
Finally, in the context of § 2254(d), the deferential standard that must be accorded to
counsel’s representation must also be considered in tandem with the deference that must be
accorded state court decisions, which has been referred to as “doubly” deferential. Richter, 562
U.S. at 105. “When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. “If the standard is difficult to meet, that is because it was
meant to be.” Id. at 102; see also Morales, 714 F.3d at 302. Howard has not satisfied his burden
of overcoming the “doubly” deferential standard that must be accorded to counsel in conjunction
with § 2254(d). He has not shown that he is entitled to relief based on ineffective assistance of
counsel. The second ground for relief lacks merit.

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C.

Howard’s third IATC Claim: Trial counsel’s lack of, and failure to conduct the
necessary research to develop a reasonable understanding of the difference between
competency to stand trial and mental defenses to criminal responsibility deprived
Howard of his right to effective assistance of counsel.
Howard argues that his trial counsel provided ineffective assistance because he did not

have a “reasonable understanding of the difference between competency to stand trial and mental
defenses to criminal responsibility,” and failed to conduct the “necessary research” to develop
such an understanding. Howard does not address whether this claim is exhausted in his briefing.
The Director asserts that Howard’s third IATC claim is unexhausted and defaulted. The Court
agrees.
Howard failed to raise this IATC claim in state court as required under § 2254(b)(2). If
he tried to raise the claim now, the Texas Court of Criminal Appeals would dismiss it as a
successive habeas application under Texas Code of Criminal Procedure Article 11.071, Section
5. Williams, 602 F.3d at 305–06. Accordingly, this claim is defaulted. Rocha, 626 F.3d at 832;
Beazley, 242 F.3d at 305–06 (unexhausted claims are defaulted).

As a result, Howard’s

unexhausted IATC claim is deemed procedurally defaulted in federal court. O’Sullivan, 526
U.S. 838 at 848; Bagwell, 372 F.3d at 755.
Federal habeas relief on the basis of a procedurally defaulted claim is barred unless the
petitioner can demonstrate cause for the default and actual prejudice arising from the default or
demonstrate the failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Barrientes, 221 F.3d at 758. Howard makes no attempt to show

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cause and actual prejudice26 or a “fundamental miscarriage of justice” that would result from the
Court’s dismissal of this claim. (See Dkt. #76, pp. 85–87).
Howard does not raise either Martinez or Trevino to establish that the alleged
ineffectiveness of his post-conviction counsel to raise this claim should be cause to excuse the
default.

Even if he had addressed Martinez and Trevino in his briefing, they would be

inapplicable to this claim as he has failed to demonstrate that the claim is “substantial.” See
Garza, 738 F.3d at 676 (finding that Martinez requires a showing that the defaulted IATC claim
is “substantial” and that state habeas counsel was constitutionally ineffective under Strickland
for not raising it) (citing Martinez, 566 U.S. at 14)). Prior to Martinez, an attorney’s negligence
in a post-conviction proceeding could not serve as “cause.” Coleman, 501 U.S. at 755. Martinez
and Trevino carved out a “narrow” exception to the Coleman rule for claims asserting ineffective
assistance of trial counsel. Trevino, 569 U.S. at 422. Now, a petitioner may meet the cause
element by showing: (1) “that habeas counsel was ineffective in failing to present those claims in
his first state habeas proceeding” and (2) “that his [IATC claim] is substantial—i.e., has some
merit.” Garza, 738 F.3d at 676. Howard does not attempt to satisfy either of these “cause”
elements regarding this claim.
Howard also fails to assert that his habeas counsel was “ineffective in failing to present
those claims in his first state habeas proceeding.” Garza, 738 F.3d at 676. In the habeas
context, allegations of ineffective assistance are reviewed under the familiar two-prong test
26

Howard does allege that trial counsel’s alleged failure to understand the difference between competency and sanity
results in an “immense” prejudice to Howard’s defense. (Dkt. #76, p. 87). Prejudice in this context, however, is not the
same as actual prejudice arising from the default.
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established in Strickland. To establish deficient performance under Strickland, a petitioner must
do more than identify issues or claims that habeas counsel did not raise and are now barred.
Strickland 466 U.S. at 689 (“Even the best criminal defense attorneys would not defend a
particular client in the same way.”); Smith v. Murray, 477 U.S. at 535 (“[T]he mere fact that
counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim
despite recognizing it, does not constitute cause for a procedural default.”). Indeed, a state
habeas attorney “need not (and should not) raise every nonfrivolous claim, but rather may select
from among them in order to maximize the likelihood of success on appeal,” because “counsel
cannot be deficient for failing to press a frivolous point.” Vasquez, 597 F. App’x at 780 (citing
Smith v. Robbins, 528 U.S. at 288). Furthermore, Howard has not shown that he was prejudiced
by state habeas counsel’s allegedly deficient performance—that is, “that there is a reasonable
probability that he would have been granted state habeas relief had the claims been presented in
the first state habeas application.” Barbee, 660 F. App’x at 314; Martinez v. Davis, 653 F.
App’x at 318.
The Director argues and the Court agrees that Howard’s third IATC claim is meritless.
Howard asserts that “[t]hroughout the record,” trial counsel used the terms “competent” and
“insanity” or “insane” interchangeably and inaccurately. (Dkt. #76, p. 86). While Howard
alleges that trial counsel used the terms inaccurately throughout the entire trial process, Howard
only supplies one example from the opening statement.

Howard points to the following

statement made during the opening statements of the guilt/innocence phase:

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[W]hen this case is over, we’ll show to you that Jamaal Howard
was incompetent. May the 11th, he began to lose his mind. He
was incompetent when he walked into that room [at the] Chevron
station and shot that girl. If you watch this trial and if [Howard]
ever starts laughing or doing something odd as he sits at that table,
you will see that he is incompetent as he sits in this courtroom
today.
(20 R.R. 20).
While trial counsel’s statement reflects the inaccurate use of the term “incompetent”
during the opening statements, Howard fails to show that this inaccurate use affected trial
counsel’s performance for the remainder of the trial. As to competency, after Dr. Duncan
testified that he had concerns regarding Howard’s competency to stand trial and the court
recessed the murder trial to conduct competency proceedings, trial counsel did present evidence
regarding Howard’s competency. (See 29 R.R.–32 R.R. ). Likewise, trial counsel presented
testimony regarding Howard’s insanity defense during the guilt/innocence and punishment
phases of the trial, see Section VI.B.2.b.2, for trial counsel’s affirmative steps in presenting an
insanity defense.
While trial counsel may have misspoken during opening statements, this error does not
demonstrate that trial counsel did not understand the difference between the competency defense
and an insanity defense. Moreover, the Sixth Amendment’s guarantee of effective assistance of
counsel does not entitle the accused to error-free representation. See United States v. Freeman,
818 F.3d 175, 178 (5th Cir. 2016) (citing Emery v. Johnson, 139 F.3d 191, 197 (5th Cir. 1997);
Williams, 695 F.2d at 123 (same)). Counsel’s effectiveness is judged in light of the entire record

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and the totality of the circumstances. Beavers v. Balkcom, 636 F.2d 114, 115 (5th Cir. 1981).
Howard’s claim does not establish that trial counsel was substantially deficient and more
importantly, Howard fails to demonstrate that he was prejudiced by the trial counsel’s
inadvertent statement. Howard’s third IATC claim is meritless.
D.

Howard’s Fourth Claim: The prosecutor’s closing argument violated Howard’s Eighth
and Fourteenth Amendment rights to have the jury give effect to mitigating evidence
even if the evidence had no causal relationship to the capital crime.
Howard asserts that the prosecutor’s statement during closing arguments violated his

Eighth and Fourteenth Amendment right to have the jury give effect to mitigating evidence even
if the mitigating evidence had no causal relationship to the crime. (Dkt. #76, pp. 87–93). More
specifically, Howard is arguing that the prosecutor’s statement did not allow the jury to give
“full consideration and full effect” to the mitigating evidence, i.e., the possibility of
schizophrenia, that Howard presented at the punishment phase of his trial. Howard relies on
Tennard v. Dretke, 542 U.S. 274 (2004) to support his contention. Howard contends that he is
entitled to a new sentencing hearing.
1.

Howard’s fourth claim for relief is unexhausted and procedurally defaulted.

Howard does not address whether this claim is exhausted in his briefing. The Director
asserts that Howard’s fourth claim for relief is unexhausted and defaulted. The Court agrees.
Howard failed to raise this claim in state court as required under § 2254(b)(2). If he tried to raise
the claim now, the Texas Court of Criminal Appeals would dismiss it as a successive habeas
application under Texas Code of Criminal Procedure Article 11.071, Section 5. Williams, 602

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F.3d at 305–06. Accordingly, this claim is defaulted. Rocha, 626 F.3d at 832; Beazley, 242 F.3d
at 305–06 (unexhausted claims are defaulted). As a result, Howard’s unexhausted claim is
deemed procedurally defaulted in federal court. O’Sullivan, 526 U.S. at 848; Bagwell, 372 F.3d
at 755.
Federal habeas relief on the basis of a procedurally defaulted claim is barred unless the
petitioner can demonstrate cause for the default and actual prejudice arising from the default or
demonstrate the failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Barrientes, 221 F.3d at 758. Howard makes no attempt to argue
cause and actual prejudice exist or allege a “fundamental miscarriage of justice” that would
result from the Court’s dismissal of this claim. (See Dkt. #76, pp. 87–93).
Whether a petitioner’s claims are procedurally defaulted or procedurally barred, the way
he may overcome these barriers is the same. First, he can overcome the procedural default or bar
by showing cause for it—and actual prejudice from its application. To show cause, a petitioner
must prove that an external impediment (one that could not be attributed to him) existed to
prevent him from raising and discussing the claims as grounds for relief in state court. See
United States v. Flores, 981 F.2d 231 (5th Cir. 1993). To establish prejudice, a petitioner must
show that, but for the alleged error, the outcome of the proceeding would have been different.
Pickney v. Cain, 337 F.3d 542 (5th Cir. 2003). Even if a petitioner fails to establish cause for his
default and prejudice from its application, he may still overcome a procedural default or bar by
showing that application of the bar would result in a fundamental miscarriage of justice. To

128

show that such a miscarriage of justice would occur, a petitioner must prove that, “as a factual
matter, that he did not commit the crime of conviction.” Fairman v. Anderson, 188 F.3d 635,
644 (5th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). Further, he must
support his allegations with new, reliable evidence—that was not presented at trial—and must
show that it was “more likely than not that no reasonable juror would have convicted him in light
of the new evidence.” Fairman, 188 F.3d at 644 (citations omitted).
Howard never exhausted this claim by presenting it to the Texas Court of Criminal
Appeals, and the deadline for doing so has expired. As such, his claims are procedurally
defaulted. Finley, 243 F.3d at 220 (“If a petitioner fails to exhaust state remedies, but the court
to which he would be required to return to meet the exhaustion requirement would now find the
claim procedurally barred, then there has been a procedural default for purposes of federal
habeas corpus relief.”).

Howard has shown neither cause for his default, prejudice from

application of the default, nor that he is actually innocent of the crime. As such, he cannot
overcome the default.
2.

Howard’s fourth claim for relief is meritless.

Howard’s federal petition raises issues that relate to the jury’s ability to evaluate and give
effect to mitigating evidence during the punishment phase of his trial. The core of Howard’s
mitigating evidence claim finds root in Penry v. Lynaugh, 492 U.S. 302 (1989). Federal courts
have incrementally developed extensive and detailed jurisprudence involving Texas’ method of
placing mitigating evidence before capital juries. Other decisions have elaborately traced the

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“long and contentious line of cases” in which Penry law has evolved. Pierce v. Thaler, 604 F.3d
197, 204 (5th Cir. 2010); see also McGowen v. Thaler, 675 F.3d 482, 490–91 (5th Cir. 2012);
Blue v. Thaler, 665 F.3d 647, 664 (5th Cir. 2011). The Supreme Court first questioned the
absence of a specific mitigation instruction or interrogatory to the jury in 1989. As a result, the
Texas Legislature in 1991 amended the statute regarding the sentencing scheme to ask the jury a
new special issue: “whether, taking into consideration all of the evidence, including the
circumstances of the offense, the defendant’s character and background, and the personal moral
culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment without parole rather than a death sentence be
imposed.” Tex. Code Crim. Pro. art. 37.0711, § 2(e)(1).
The law has coalesced into a constitutional expectation that “sentencing juries must be
able to give meaningful consideration and effect to all mitigating evidence that might provide a
basis for refusing to impose the death penalty on a particular individual, notwithstanding the
severity of his crime or his potential to commit similar offenses in the future.”27 Abdul–Kabir v.
Quarterman, 550 U.S. 233, 246 (2007).

“[W]hen the defendant’s evidence may have

meaningful relevance to the defendant’s moral culpability ‘beyond the scope of the special
issues,’” omitting a specific mitigation question amounts to constitutional error. Abdul–Kabir,

27

In application, the Supreme Court’s Penry jurisprudence involves a two-part inquiry. See Mines v. Quarterman, 267
F. App’x 356, 361 (5th Cir. 2008) (describing the process by which a court assesses a Penry claim); Coble v.
Quarterman, 496 F.3d 430, 444 (5th Cir. 2007) (same). A reviewing court first asks whether the complained-of evidence
meets a low relevance standard. See Tennard v. Dretke, 542 U.S. 274, 283 (2004). Second, a court must decide whether
the defendant’s evidence had “mitigating dimension beyond” the special issue questions actually posed to the jury.
Tennard, 542 U.S. at 288; see also Smith v. Texas, 543 U.S. 37, 43–45 (2004) (reaching the same result in a case on
certiorari review from the Texas Court of Criminal Appeals).
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550 U.S. at 254 n.14. Howard does not contend that he was prevented from presenting his
mitigating evidence during the punishment phase of his trial or that the jury instructions, the
special interrogatories, or verdict form were defective in some manner and prevented the jury
from giving his mitigating evidence full effect and consideration.
Instead, Howard argues that the prosecutor’s singular statement in closing argument
convinced the jury to disregard Howard’s mitigating evidence pertaining to Dr. Fason’s
diagnosis of prodromal schizophrenia; thus, the jury was not able to give full effect and
consideration to Howard’s mitigating evidence in assessing his blameworthiness. (Dkt. #76, pp.
87–89). Howard complains that the prosecutor said:
And in the punishment phase you’re asked to – you’re asked to find that he
[Howard] has got schizophrenia as a mitigating circumstance. In the first place,
so what? What if he does have schizophrenia? Does that reduce his moral
blameworthiness?
You know, Dr. Fason didn’t say that this [the crime] was any way related to
someone having schizophrenia. He didn’t say that there was any medication that
he could take that would make him a pleasant fellow, get rid of any antisocial
disorder.28
(Dkt. #76, p. 89 (citing 27 R.R. 20–21)). Based on the above statement, Howard contends that
“the prosecutor effectively narrowed the scope of Special Issue No. 2 by arguing to the jury that
because [Howard] failed to show a nexus between his mental impairment (schizophrenia) and

28

Dr. Gripon, the prosecutor’s psychiatric expert witness, testified in the innocence/guilt phase and in the punishment
phase that he diagnosed Howard as having antisocial personality disorder rather than having schizophrenia. (23 R.R.
113–18, 26 R.R. 112–14).
131

the crime (“Nexus Argument”), the jury should answer “no” to the second special issue.”29 (Dkt.
#76, p. 88).
a.

Howard fails to establish prejudice regarding his “nexus” evidentiary
burden argument.

In his briefing, Howard states that “both Texas and Fifth Circuit precedent imposed a
nexus showing between the crime and the mental impairment” at the time of Howard’s 2001 trial
(Dkt. #76, p. 89). Howard presents Rhoades v. State, 934 S.W.2d 113, 126 (Tex. Crim App.
1996) (“[I]f evidence has no relation to a defendant’s moral culpability for the charged crime,
then it is irrelevant to mitigation.”), to support his position.
Based on Rhoades and its progeny, there is no requirement that there must be a showing
“between the crime and the mental impairment” but rather there is a relevance requirement30 for
29

The jury instruction for Issue No. 2 provides in pertinent part:
If the jury has answered Issue No. 1 [future dangerousness] in the affirmative, the jury will answer the
following issue, Issue No. 2: Whether taking into consideration all of the evidence, including the
circumstances of the offense, the defendant’s character, and background, and the personal moral
culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant
that a sentence of life imprisonment rather than a death sentence be imposed.
You are further instructed that the term “mitigating evidence” means evidence that a juror might
regard as reducing the defendant’s moral blameworthiness.

(27 R.R. 9–10; 3 C.R. 574–575).
30

The Court of Criminal Appeals relied on Franklin v. Lynaugh, 487 U.S. 164 (1988), in which a plurality of the
Supreme Court remarked that it had “never suggested that sentencers be given—in the context of mitigation—‘unbridled
discretion in determining the fates of those charged with capital offenses.’” Id. at 125. “The Franklin plurality
recognized a relevance requirement to evidence bearing on the jury’s mitigation determination.” Rhoades, 934 S.W.2d
at 126. The Court of Criminal Appeals quoted Justice Sandra Day O’Connor’s concurrence in Franklin when
demarcating the limits of relevancy:
[E]vidence about the defendant’s background and character is relevant because of the belief, long held
in society, that defendants who commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less culpable than defendants who have
no such excuse. Franklin, supra, 487 U.S. at 184 (citing California v. Brown, 479 U.S. 538 (1987))]
[emphasis added].
To Justice O’Connor, the evidence is relevant because it relates to the moral culpability of a defendant’s act. By this
logic, if evidence has no relation to a defendant’s moral culpability for the charged crime, then it is irrelevant to
132

the “evidence bearing on the jury’s mitigation determination.” Rhoades, 934 S.W2d at 126. As
discussed in Rhoades v. Davis, No. 4:14-3152, 2016 WL 8943327 (S.D. Tex. July 20, 2016),
Rhoades attempted to have admitted into evidence eleven pictures of himself as a child at trial.
The photographs showed common childhood scenes such as Rhoades posing with family,
fishing, and holding a trophy. The defense argued that the photographs were a response to the
State’s punishment-phase evidence. Rhoades, 2016 WL 8943327, at *5. The State objected to
the photographs on the basis that the photographs were not relevant to the punishment hearing
and the trial court ruled that the photographs were not relevant to the issue before the jury, and
thus, not admissible. Id.
The Rhoades federal habeas court denied Rhoades’ complaint that the trial court
improperly denied the admissibility of his photographs into evidence. Rhoades, 2016 WL
8943327, at *8.31 On review, the Fifth Circuit affirmed the federal habeas court’s finding that
the denial of the admissibility of the photographs into evidence was harmless error. Rhoades v.
Davis, 914 F.3d 357, 368–69 (5th Cir. 2019). In finding that he had failed to meet his burden for
habeas relief, the Fifth Circuit also held that Rhoades had failed to show how the exclusion of
the photographs had a substantial or injurious effect on the jury’s deliberations. Rhoades, 914
F.3d at 369. The Fifth Circuit’s holding in Rhoades does not advance Howard’s argument.
Howard also cites Davis v. Scott, 51 F.3d 457, 460–61 (5th Cir. 1995), abrogated by
Tennard v. Dretke, 542 U.S. 274 (2004) (“In order to present relevant [mitigating] evidence that
mitigation. Rhoades, 2016 WL 8943327, at *6.
31

The Fifth Circuit granted a certificate of appealability on this issue in Rhoades v. Davis, 852 F.3d 422, 428–29 (5th
Cir. 2017).
133

one is less culpable for his crime, the evidence must show (1) a ‘uniquely severe permanent
handicap[] with which the defendant was burdened through no fault of his own,’ and (2) that the
criminal act was attributable to this severe permanent condition.”). Once again the focus of the
opinion and the discussion in Tennard regarding Davis v. Scott, is whether the evidence was
constitutionally relevant and beyond the effective reach of the jury. Tennard, 572 U.S. at 283
(discussing Davis v. Scott) (emphasis added)..
Even though Rhoades, 934 S.W.2d at 126, and Davis v. Scott were in effect at the time of
Howard’s 2001 trial and both cases focused on the admissibility or relevance of evidence for
mitigation purposes, Howard cannot show prejudice in his punishment phase as there is no
application of then Rhoades’ “nexus” evidence burden in his trial. There is no complaint in
Howard’s briefing that any evidence, mitigating or not, was denied admittance and excluded
from presentment to the jury. (See Dkt. #76). The Court notes that Tennard was not in existence
at the time of Howard’s criminal trial.
Moreover, Howard’s trial court never instructed the jury that: (1) the defendant had to
prove that his mitigating evidence was relevant to the defendant’s moral culpability for the
charged crime or (2) if the presented evidence had no relation to a defendant’s moral culpability
for the charged crime, then it is irrelevant to the issue of mitigation; and thus, the jury could
disregard the evidence. (See 1 R.R.–27 R.R.). There is nothing in Howard’s seven-week trial
that indicates to the jury that a “nexus” requirement existed in Texas case law and “if evidence
ha[d] no relation to a defendant’s moral culpability for the charged crime, then it is irrelevant to

134

mitigation.” (See 1 R.R.–27 R.R.). Moreover, neither the prosecutor nor defense counsel argued
to the jury that the defendant failed to meet his “nexus” evidentiary burden or the defendant had
met his “nexus” evidentiary burden; and thus, the jury could consider the evidence in deciding
the issue of mitigation. (See 1 R.R.–27 R.R.). Howard has failed to show that the jury would
draw a connection between the prosecutor’s statement and a case law proposition regarding an
evidentiary burden, which there is no evidence that anyone informed the jury that it even existed.
The mere existence of a “nexus” evidentiary burden at time of Howard’s 2001 trial is not
sufficient to establish prejudice in conjunction with the particular facts of Howard’s trial and the
prosecutor’s statement.
b.

Examination of Tennard and prosecutorial misconduct.

Tennard does not purport to establish standards for evaluating alleged prosecutorial
misconduct. Rather, it addresses the Eighth Amendment requirement that the states give the jury
a vehicle for considering and giving effect to constitutionally relevant mitigating evidence,
which it defines as evidence the sentencer could reasonably find justifies a sentence less than
death. Id. at 285. Abdul–Kabir and Brewer, however, indicate that courts should consider
whether the prosecutor’s comments to the jury may have “undermined” the jury’s ability to give
meaningful consideration and effect to all of the petitioner’s mitigating evidence by suggesting
that the jurors may not consider mitigating evidence for relevance outside the special issues.
Abdul–Kabir, 550 U.S. at 261; Brewer v. Quarterman, 550 U.S. 281, 291 (2007).

135

In Abdul-Kabir, during the voir dire, the prosecutor advised the jurors that they had a
duty to answer the special issues based on the facts, and the extent to which such facts
objectively supported findings of deliberateness and future dangerousness, rather than their
views about what might be an appropriate punishment for this particular defendant.

For

example, juror Beeson was asked:
[I]f a person had a bad upbringing, but looking at those special issues, you felt
that they [sic] met the standards regarding deliberateness and being a continuing
threat to society, could you still vote ‘yes,’ even though you felt like maybe
they’d [sic] had a rough time as a kid? If you felt that the facts brought to you by
the prosecution warranted a ‘yes’ answer, could you put that out of your mind and
just go by the facts?
[T]hat would not keep you from answering ‘yes,’ just because a person had a poor
upbringing, would it?
The prosecutor began his final closing argument with a reminder to the jury that during the voir
dire they had “promised the State that, if it met its burden of proof,” they would answer “yes” to
both special issues. The trial judge refused to give any of several instructions requested by
[Abdul-Kabir] that would have authorized a negative answer to either of the special issues on the
basis of “any evidence which, in [the jury’s] opinion, mitigate[d] against the imposition of the
Death Penalty, including any aspect of the Defendant’s character or record.” Abdul-Kabir, 550
U.S. at 241–42 (internal citations omitted). Ultimately, the jurors answered both issues in the
affirmative, and the defendant was sentenced to death. Id. The Supreme Court in its analysis
focused on the trial court’s failure to give an appropriate instruction directing the jury to fully
consider the mitigating evidence, such that a negative answer to the special issues could be

136

given. The factual circumstance discussed in Abdul-Kabir is not the equivalent of what occurred
in Howard’s trial. Moreover, the Abdul-Kabir prosecutor’s statements are not at all similar to
the statements made by Howard’s prosecutor.
In Brewer, the prosecutor stressed that the jurors lacked the power to exercise moral
judgment in determining Brewer’s sentence, admonishing them that “[y]ou don’t have the power
to say whether [Brewer] lives or dies. You answer the questions according to the evidence,
mu[ch] like you did at the guilt or innocence [sic]. That’s all.” Id. at 114. Ultimately, the jury
answered both special issues in the affirmative, and Brewer was sentenced to death. Brewer, 550
U.S. at 291 (internal citation omitted). By comparison, the prosecutor’s statement in Howard’s
trial, however, is not similar at all to the argument presented by the Brewer prosecutor. More
importantly, the 2001 jury instruction for Issue No. 2 used in Howard’s trial directs the Howard
jury to consider all the evidence, including the circumstances of the offense, the defendant’s
character, and background, and the personal moral culpability of the defendant.32 See, supra,
note 29. In the present case, the prosecutor’s statement did not tell the jury that they had to
disregard the mitigating evidence or that they were prohibited from answering “yes” to Special
Issue No. 2 in order to effectuate a death sentence. The prosecutor’s statement did not prevent
the jury from giving full effect to Howard’s mitigating evidence.

32

Howard’s “nexus” argument (Dkt. #76, p. 80) is not applicable in light of the language of the 2001 jury instruction for
Issue No. #2, and the absence of any language in the charge, instructions, or verdict form, instructing the jury that they
must find a nexus between the mitigating evidence and the crime before considering the mitigating evidence. Although
Howard claims the prosecutor’s statement raises a “nexus” issue, nothing about the statement prompts the jury that they
must find a “nexus” between the mitigating evidence and the crime before they could consider it.
137

It is well established under Texas law “that proper jury argument must fall within one of
the following categories: (1) summary of the evidence; (2) reasonable deduction from the
evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement.”
Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). Improper remarks by a prosecutor
“are a sufficient ground for habeas relief only if they are so prejudicial that they render the trial
fundamentally unfair.” Hughes v. Quarterman, 530 F.3d 336, 347 (5th Cir. 2008) (quoting
Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir. 2002)), cert. denied, 556 U.S. 1239 (2009).
“Such unfairness exists only if the prosecutor’s remarks evince either persistent and pronounced
misconduct or . . . the evidence was so insubstantial that (in probability) but for the remarks no
conviction would have occurred.” Id. (quoting Harris, 313 F.3d at 245). “The relevant question
is whether the prosecutor’s comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Id. (quoting Darden v. Wainwright, 477 U.S. 168,
181 (1986)).
To prevail on this claim, Howard must show that in the context of the entire trial, there is
a reasonable probability that the verdict might have differed absent the alleged misconduct.
Styron v. Johnson, 262 F.3d 438, 449 (5th Cir. 2001).

Howard’s claim is based on the

prosecutor’s punishment phase closing argument that “Dr. Fason didn’t say that this was any
way related to someone having schizophrenia.” The prosecutor’s statement is not a suggestion
to the jury to determine if the defense met its “nexus” evidentiary burden and reject Howard’s
mitigating evidence.

Nor does the statement tell the jury that they cannot answer in the

138

affirmative to Special Issue No. 2. Howard’s briefing reads too much into the prosecutor’s
statement. The prosecutor is permitted to summarize the evidence. If the prosecutor was wrong
in his assessment of what the testimony or evidence was, defense counsel is permitted to object.
Howard’s trial counsel did object, stating: “That’s totally improper. Dr. Fason did not say that.”
(27 R.R. 21).
Even if the statement was improper, the prosecution’s argument did not constrict the
jury’s ability to consider mitigating evidence. The punishment phase charge instructed “[y]our
answers must be based exclusively on the law and evidence submitted to you, and your
responsibility is to make certain that justice is done in this case.” (3 C.R. 375).33 The jury was
further instructed at the guilt/innocence phase that the opening statements and closing arguments
of the attorneys “are not evidence” (20 R.R. 8), and “[t]he opening statement is not evidence but
is merely an aid to you in generally understanding the nature of the case and the significance of
evidence when it is introduced.” (20 R.R. 6–7).
The prosecutor’s singular statement was an isolated incident which could hardly
undermine the fairness of the entire trial. Such a singular statement alone cannot so infect the
trial with unfairness “as to make the resulting conviction a denial of due process.” Darden, 477
U.S. at 181; Bradford v. Whitley, 953 F.2d 1008, 1013 (5th Cir. 1992) (prosecutor’s closing
argument, in which he allegedly accused defendant of lying, did not so infect trial with

33

Additionally, at the start of guilt/innocence, the trial court instructed the jury: “You have just taken an oath that you
will render a verdict on the evidence submitted to you under my rulings.” (20 R.R. 5) (emphasis added). The trial court
explained: “It is your duty to determine the facts and to determine them from the evidence and the reasonable inferences
arising from such evidence and in doing so, you must not engage in guesswork or speculation. The evidence which you
are to consider consists of the testimony of witnesses and exhibits admitted into evidence.” (20 R.R. 7).
139

unfairness as to violate defendant’s due process rights, where prosecutor’s comments were
neither persistent nor pronounced in context of closing argument as a whole).
Finally, Howard’s trial is rendered fundamentally unfair34 only if, in the context of the
entire trial, the remarks by the prosecutor were “crucial, critical, highly significant” factors.
Ortega v. McCotter, 808 F.2d 406, 411 (5th Cir. 1987). In other words, Howard has the burden
of showing that the evidence against him was so insubstantial that, but for the remarks of the
prosecution, no conviction would have occurred. Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th
Cir. 1988). At the sentencing phase, Howard must show that but for the prosecutor’s remark, he
would have received a sentence of less than death. A defect of constitutional proportions is not
to be found except in the most egregious circumstances. Ortega, 808 F.2d at 410. In this case,
the alleged misconduct complained of by Howard was an isolated statement. There is no
reasonable probability that the verdict might have differed absent the misconduct. Styron, 262
F.3d at 449.
The Court finds that there was nothing in the prosecutor’s remarks to reflect that he was
asking the jury to forego its duty and automatically answer the special issues in such a way that
Howard would receive the death penalty. Howard has not shown that he is entitled to relief on
his prosecutorial misconduct claim.

34

A trial is fundamentally unfair when the prosecutor engages in persistent or pronounced misconduct, or the evidence
was so insubstantial that in all probability but for the remarks the jury would not have returned a guilty verdict. See
Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000); Rushing v. Butler, 868 F.2d 800, 806 (5th Cir. 1989).
140

c.

Howard’s fourth claim considered under Teague.

In order to preempt the Director from raising the argument that Howard’s fourth claim
for relief was barred under Teague v. Lane, 489 U.S. 288 (1989), Howard asserted that his
conviction was not final for the purposes of Tennard. (Dkt. #76, pp. 92–93). Under Teague,
constitutional rules of criminal procedure announced before a criminal conviction becomes final
apply retroactively to that conviction and sentence. Howard’s direct appeal became final with
the denying of his application for writ of certiorari on February 27, 2006, by the Supreme Court.
Howard states that Tennard created a new rule of criminal procedure by unequivocally
rejecting the nexus requirement imposed by the lower state and federal courts; and thus,
announced a new constitutional rule of criminal procedure. The Court agrees that Tennard did
reject Texas’ and the federal courts’ “nexus” test as Texas’ former capital sentencing scheme did
not provide constitutionally adequate means of presenting mitigating evidence. 542 U.S. at 289.
Howard, however, is not raising a “pure” nexus argument but rather is attempting to extend
Tennard to prosecutorial misconduct claims. Tennard did not create a new constitutional rule of
criminal procedure regarding prosecutorial misconduct claims.

As such, Howard’s fourth

ground for relief is barred by Teague. Moreover, as discussed as above, Howard cannot show
that the prosecutor’s singular comment had “a substantial or injurious effect on the jury’s
deliberations.” See Rhoades, 914 F.3d at 369. Howard’s fourth claim for relief is without merit.

141

D.

Howard’s Fifth Claim (IATC): Assuming the Supreme Court did not announce a new
rule in Tennard v. Dretke, 542 U.S. 274 (2004), Howard was denied his right to effective
assistance of counsel because his attorney failed to object to the prosecutor’s nexus
argument.
Howard argues that his trial counsel failed to provide effective assistance of counsel

because he allegedly failed to raise a Tennard objection in response to the prosecutor’s closing
argument statement and preserve his Eighth Amendment right to have the jury consider his
schizophrenia as mitigating in answering Special Issue No. 2.

More specifically, Howard

contends that his trial counsel failed to properly object to the prosecutor’s statement that “Dr.
Fason didn’t say that this was any way related to someone having schizophrenia.” (Dkt. #76, pp.
93–95). The Court notes that Howard’s trial counsel did object to the prosecutor’s statement,
stating: “That’s totally improper. Dr. Fason did not say that.” (27 R.R. 21). Howard’s IATC
argument is deficient in many aspects.
First, Howard fails to address whether this claim is exhausted in his briefing. The
Director asserts that Howard’s fifth claim is unexhausted and defaulted. The Court agrees.
Howard failed to raise this IATC claim in state court as required under § 2254(b)(2). If he tried
to raise the claim now, the Texas Court of Criminal Appeals would dismiss it as a successive
habeas application under Texas Code of Criminal Procedure Article 11.071, Section 5.
Williams, 602 F.3d at 305–06. Accordingly, this claim is defaulted. Rocha, 626 F.3d at 832;
Beazley, 242 F.3d at 305–06 (noting unexhausted claims are defaulted). As a result, Howard’s
unexhausted IATC claim is deemed procedurally defaulted in federal court. O’Sullivan, 526
U.S. at 848; Bagwell, 372 F.3d at 755.
142

Federal habeas relief on the basis of a procedurally defaulted claim is barred unless the
petitioner can demonstrate cause for the default and actual prejudice arising from the default or
demonstrate the failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Barrientes, 221 F.3d at 758. Howard makes no attempt to show
cause and actual prejudice or a “fundamental miscarriage of justice” that would result from the
Court’s dismissal of this claim. (See Dkt. #76, pp. 93–95). Howard’s fifth claim is procedurally
defaulted.
Secondly, Howard does not even raise the specter of either Martinez or Trevino to
establish that his post-conviction counsel was ineffective for failing to raise this claim, and thus,
have cause to excuse the default. Even if he had addressed Martinez and Trevino in his briefing,
they would be inapplicable to this claim as he has failed to demonstrate that the claim is
“substantial.” See Garza, 738 F.3d at 676 (Martinez requires a showing that the defaulted IATC
claim is “substantial” and that state habeas counsel was constitutionally ineffective under
Strickland for not raising it) (citing Martinez, 566 U.S. at 14)). Prior to Martinez, an attorney’s
negligence in a post-conviction proceeding could not serve as “cause.” Coleman, 501 U.S. at
755. Martinez and Trevino carved out a “narrow” exception to the Coleman rule for claims
asserting ineffective assistance of trial counsel. Trevino, 569 U.S. at 422. Now, a petitioner may
meet the cause element by showing (1) “that habeas counsel was ineffective in failing to present
those claims in his first state habeas proceeding” and (2) “that his [IATC claim] is

143

substantial—i.e., has some merit.” Garza, 738 F.3d at 676. Howard does not attempt to satisfy
either of these “cause” elements regarding this claim.
Third, Howard also fails to assert that his habeas counsel was “ineffective in failing to
present those claims in his first state habeas proceeding” under Strickland. Garza, 738 F.3d at
676. In the habeas context, allegations of ineffective assistance are reviewed under the familiar
two-prong test established in Strickland. To establish deficient performance under Strickland, a
petitioner must do more than identify issues or claims that habeas counsel did not raise and are
now barred. Strickland at 689 (“Even the best criminal defense attorneys would not defend a
particular client in the same way.”); Smith v. Murray, 477 U.S. at 535 (“[T]he mere fact that
counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim
despite recognizing it, does not constitute cause for a procedural default.”). Indeed, a state
habeas attorney “need not (and should not) raise every nonfrivolous claim, but rather may select
from among them in order to maximize the likelihood of success on appeal” because “counsel
cannot be deficient for failing to press a frivolous point.” Vasquez, 597 F. App’x at 780 (citing
Smith v. Robbins, 528 U.S. at 288).
Furthermore, Howard has not shown that he was prejudiced by state habeas counsel’s
allegedly deficient performance—that is, “that there is a reasonable probability that he would
have been granted state habeas relief had the claims been presented in the first state habeas
application.” Barbee, 660 F. App’x at 314; Martinez v. Davis, 653 F. App’x at 318.

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The Director argues and the Court agrees that Howard’s fifth claim is meritless. Tennard
does not purport to establish standards for counsel’s representation under Strickland. Rather, it
addresses the Eighth Amendment requirement that the states give the jury a vehicle for
considering and giving effect to constitutionally relevant mitigating evidence, which it defines as
evidence the sentencer could reasonably find justifies a sentence less than death. Id. at 285. As
noted above, none of Howard’s mitigating evidence was excluded and the jury received a special
mitigation instruction from the court. See, supra, note 29.
Within the context of Strickland’s deficient performance and resultant prejudice
requirements, Strickland, 466 U.S. at 694, Howard has the “difficult burden of showing a
‘reasonable probability’ that the jury would not have imposed the death sentence in the absence
of errors by counsel.” Riley v. Cockrell, 339 F.3d 308, 315 (5th Cir. 2003) (citation omitted).
Howard failed to show that the trial counsel ignored a meritorious objection. Howard’s trial
counsel did object to the prosecutor’s statement. (27 R.R. 21). While the trial court did not
expressly overrule the objection, the trial court did state that “the jury is going to remember the
evidence as they have heard it.” (27 R.R. 21–22).
Howard’s trial counsel did not and could not raise an objection to the prosecutor’s
statement in 2001, based on Tennard, as Tennard was not decided until 2004. Arguing that trial
counsel should have made an objection on the chance that the law might change sometime in the
future to benefit his client cannot form the basis for habeas relief. The Fifth Circuit has
“repeatedly held that ‘there is no general duty on the part of defense counsel to anticipate

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changes in the law.’” Fields, 565 F.3d at 294. Also, attorneys are not required to be clairvoyant.
Id. at 294–95 (“Clairvoyance is not a required attribute of effective representation.”). This Court
refuses to hold trial counsel’s performance as deficient for failing to raise an objection for a case
law concept that did not exist at the time of Howard’s trial.
Moreover, the Fifth Circuit “has made clear that counsel is not required to make futile
motions or objections.” Koch, 907 F.2d at 527 (citing Murray v. Maggio, 736 F.2d 279, 283 (5th
Cir. 1984) (per curiam)). Any objection based on Tennard would certainly have been futile in
this instance since the remark was not erroneous under then-existing law. Trial counsel cannot
perform deficiently by failing to raise a frivolous or meritless objection. Green v. Johnson, 160
F.3d 1029, 1037 (5th Cir. 1998). Accordingly, if any objection by Howard’s trial counsel would
have been futile, then the failure to object would not fall below the standard in Strickland
enunciated above.
Howard has not shown that his trial counsel’s representation in this matter was deficient
or that he was prejudiced by such deficient representation. He failed to satisfy his burden of
proving ineffective assistance of counsel as required by Strickland. The fifth ground for relief
lacks merit and should be denied.
VII. CONCLUSION
The Court is of the opinion, and so finds, that Howard has not shown that he is entitled to
federal habeas corpus relief and his petition should be denied.

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VIII. CERTIFICATE OF APPEALABILITY
“A state prisoner whose petition for a writ of habeas corpus is denied by a federal district
court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S. Ct. 759, 773 (2017).
Instead, under 28 U.S.C. § 2253(c)(1), he must first obtain a certificate of appealability (“COA”)
from a circuit justice or judge. Id. Although Howard has not yet filed a notice of appeal, the
court may address whether he would be entitled to a certificate of appealability. See Alexander
v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (concluding a district court may sua sponte rule on
a certificate of appealability because “the district court that denies a petitioner relief is in the best
position to determine whether the petitioner has made a substantial showing of a denial of a
constitutional right on the issues before the court. Further briefing and argument on the very
issues the court has just ruled on would be repetitious”).
A certificate of appealability may issue only if a petitioner has made a substantial
showing of the denial of a constitutional right. 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.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). The Supreme Court recently emphasized that the COA inquiry “is not coextensive
with 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

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seeking a COA must further show that ‘jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.’” Rhoades, 852 F.3d at 427 (quoting Gonzalez
v. Thaler, 565 U.S. 134, 140–41 (2012)).
In this case, reasonable jurists could not debate the denial of Howard’s § 2254 grounds
for relief on substantive or procedural grounds, nor find that the issues presented are adequate to
deserve encouragement to proceed. Accordingly, the Court finds that Howard is not entitled to a
certificate of appealability as to his grounds for relief. It is accordingly

.

ORDERED that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice. It is further
ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled on are DENIED.
SIGNED this 20th day of September, 2019.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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