Granger v. Director TDCJ-CID
Filing
65
MEMORANDUM OPINION and Order denying and dismissing with prejudice the petition for writ of habeas corpus. The request for an evidentiary hearing is denied. A certificate of appealability is denied. All motions not previously ruled on are denied. Signed by District Judge Marcia A. Crone on 2/24/23. (tkd, )
UNITED STATES DISTRICT COURT
BARTHOLOMEW GRANGER,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:17-CV-291
MEMORANDUM OPINION AND ORDER
Petitioner Bartholomew Granger (“Granger”), a death row inmate confined in the Texas
Department of Criminal Justice, filed the above-styled and numbered petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He challenges his 2013 capital murder conviction and death
sentence imposed by the 58th Judicial District Court of Jefferson County, Texas, in Cause Number
13-16388; The State of Texas vs. Bartholomew Granger. Ex parte Granger, No. WR-83,135-01,
2017 WL 3379285, at *1–2 (Tex. Crim. App. May 17, 2017) (“Ex parte Granger I”); Ex parte
Granger, No. WR-83,135-02, 2020 WL 915434, at *1 (Tex. Crim. App. Feb. 26, 2020) (Ex parte
Granger II). Granger was indicted (#48-3 at 6) and sentenced to death for killing Minnie Sebolt
(“Sebolt”) while retaliating against and intending to kill Claudia Jackson (“Claudia”) due to her
service as a witness in Granger’s prior trial for sexual assault of a child. 1 For the reasons set forth
below, the court finds that the petition should be DENIED.
1
Granger was not indicted or tried for attempting to kill Samantha Jackson (“Samantha”) or Rebecca Richard
(“Richard”) in Cause No. 13-16388.
I.
Background
The Texas Court of Criminal Appeals (“TCCA”) summarized the factual background of
the case as follows:
The record shows that, at the time of Seboldt’s2 [sic] death, [Granger] was on trial
for sexual assault of a child—his then-twenty-year-old brain-damaged and learningdisabled daughter, Samantha Jackson. Samantha and her mother, Claudia Jackson,
had testified against [Granger] on Tuesday, March 13, 2012. Samantha’s crossexamination was to begin when trial resumed at 1 p.m. on Wednesday, March 14,
and Rebecca Richard, [Granger]’s estranged wife, was under subpoena to testify.
[Granger] arrived at the courthouse several hours early on Wednesday and parked
his truck in a lot across the street. He periodically opened the truck’s door and
looked over it toward the street in front of the courthouse. When Samantha,
Claudia, and Richard arrived and began walking toward the courthouse, [Granger]
approached and began shooting at them with a semi-automatic rifle.
Richard fled toward the parking lot and was not hit. Samantha, however, froze in
place when the shooting began. [Granger] shot her multiple times and also ran
over her with his truck before fleeing the scene. Nonetheless, Samantha survived.
Claudia, who also survived the attack, was shot in the buttocks as she ran toward
the courthouse. As she approached the courthouse, Claudia saw a bystander, later
identified as Sebolt, lying on the ground in front of the courthouse doors. Sebolt
suffered multiple gunshot wounds and died at the scene. Leslie King, another
bystander who was in front of the courthouse, saw [Granger] turn his gun in her
direction. King was wounded in the little finger as she heard bullets going past
her.
Law enforcement officers shot and wounded [Granger] as he returned to his truck.
[Granger] fled a short distance, then abandoned his vehicle and took hostages at a
nearby business. He made a number of statements in which he incriminated
himself as the shooter and blamed Samantha, Claudia, and Richard for his actions.
Law enforcement officers took [Granger] into custody after his hostages
overpowered him. [Granger] made additional incriminating statements while
receiving medical care for his wounds.
[Granger] testified at both phases of his capital murder trial. At the guilt-innocence
phase, he admitted to shooting Samantha and to intentionally running over her with
his truck. However, he denied causing Sebolt’s death or Claudia’s and King’s
2
The TCCA’s recitation of the facts repeatedly misspells Sebolt’s name. The court will correctly spell Sebolt’s
name in this section and the section that follows without notation.
2
wounds. [Granger] claimed that he had not shot in the direction of the courthouse
because he had used all of his bullets on Samantha. The jury found [Granger]
guilty of capital murder as alleged in the indictment.
Ex parte Granger I, 2017 WL 3379285, at *1–2.
In addition to the facts of the crime presented during the guilt phase at trial, the State
presented evidence at the punishment phase of the trial to demonstrate Granger’s future
dangerousness:
During the State’s punishment case, the jury heard in graphic detail from Samantha
[Jackson] that [Granger] began sexually molesting her when she was twelve years
old because “he would rather show [her] how to have sex than let [her] go out on
the streets and do it with someone else”; that he first had vaginal intercourse with
her when she was about fourteen or fifteen; and that he also had anal intercourse
with her. Samantha additionally testified that [Granger] was very controlling of her
and that he physically and verbally abused both her and her younger brother,
Bartholomew, Jr. Samantha denied that her mother, Claudia [Jackson], had told
her to accuse [Granger] of molestation.
[Rebecca] Richard testified that, before she and [Granger] separated, he asked her
to take Samantha to the doctor. [Granger] explained to Richard that Samantha had
taken a shower while Richard was not home. “[H]e had a towel on the floor in the
bedroom where he had ejaculated and [Samantha] came in and grabbed the towel
and went to dry off,” and so [Granger] was afraid that she was pregnant. Richard
acknowledged that Samantha denied that anyone had touched her and that she had
not turned out to be pregnant. However, Richard and [Granger] separated soon
after the incident.
The State also presented testimony from three jail guards and a jail nurse who had
interacted with [Granger] while he was incarcerated awaiting trial for capital
murder. Collectively, these witnesses testified that [Granger]: was extremely
verbally abusive, directing racist, misogynistic, and homophobic epithets at them;
engaged in other disruptive behavior that required jail[e]rs [to] use physical force
and chemical measures to subdue him; and falsely alleged that other inmates had
assaulted him by throwing their feces on him.
The jury additionally heard excerpts from numerous profanity-laced telephone calls
[Granger] made from jail while awaiting trial. During these calls, [Granger]
expressed threats, hatred, and a lack of remorse regarding virtually everyone
associated with his sexual assault trial—especially Samantha and her mother—as
well as hatred toward many other groups.
Ex parte Granger I, 2017 WL 3379285, at *1–2.
3
Conversely, the defense presented nine witnesses, including Granger, in mitigation of
punishment. See 27 Reporter’s Record (“RR”) 7–127; 28 RR 13–72. The TCCA summarized
the remaining punishment evidence as follows:
Dr. Edward Gripon, a forensic psychiatrist who examined [Granger] multiple times
as the date of the capital murder trial approached, testified that [Granger] was not
psychotic. However, Gripon agreed that [Granger]’s thoughts and ideas were not
always reasonable, logical, or coherent.
Gripon, who diagnosed [Granger] as having a paranoid personality disorder,
testified that having a personality disorder was a factor that psychiatrists use when
attempting to determine someone’s risk of future dangerousness. Gripon also
acknowledged that [Granger]’s jail phone calls were filled with ranting, threats,
name-calling, and cursing. But on balance, Gripon concluded, [Granger] “was
mostly a lot of talk.” Gripon acknowledged that the courthouse shooting was an
exception and reflected the violence of which [Granger] could be capable in certain
circumstances. However, Gripon opined that [Granger]’s primary pattern was a
verbal response to people and events he perceived negatively.
An inmate who had been housed near [Granger] while [Granger] was awaiting his
capital murder trial testified that: [Granger] acted “normal” in jail; although
[Granger] tried to leave other inmates alone, they harassed him; jail guards treated
[Granger] badly; and [Granger] cursed at guards sometimes, but did not assault
them. Another inmate who had been housed with [Granger] gave substantially
similar testimony.
However, on cross-examination, the second inmate
acknowledged that he heard [Granger] admit to having sexually molested Samantha.
The inmate’s testimony about [Granger]’s admission was consistent with Richard’s
punishment phase testimony.3
Through the testimony of a pastor who visited [Granger] weekly in jail, trial
counsel presented evidence that [Granger] “hated what had happened to” Sebolt.
However, the pastor acknowledged that [Granger] never admitted that he killed
Sebolt and he continued to express hatred for Samantha, Claudia, and Richard.
Through his direct examination testimony and the testimony of his parents,
[Granger] presented evidence of his social history from birth through adolescence
and adulthood. Through their questions, trial counsel also traced [Granger]’s
educational, work, medical, and psychological history. At the end of his direct
examination, [Granger], who had testified at the punishment phase against trial
3
According to the inmate, [Granger] admitted that he had called his daughter to come over to his house, had
her take a shower, masturbated while she did so, and when she finished showering and he finished
masturbating, he and one of his brothers molested her.
4
counsel’s advice, gave non-responsive answers in which he stated that he wanted
to receive the death penalty.
On cross-examination, [Granger] also stated that he wanted the death penalty.
And, among other things, he denied having killed Sebolt and blamed the
responding officers for her death; called Samantha a “liar” and “a whore”; and
declared “[t]his is not a fucking court. This is a lynching of another nigger” by
“a[n] all-white jury” with “one fucking jigaboo bitch.” When the trial court called
a recess and had him removed from the courtroom, [Granger] directed several
mocking and profane remarks at the prosecutor while the jury was still present.
[Granger]’s testimony remained generally combative, profane, and mocking when
his cross-examination resumed. He accused the State of having mounted a “witch
hunt” against him with the sexual assault charges and “then when shit happens,
then everybody want[s] to get upset with me.” When his testimony ended,
[Granger] continued to be obstreperous and mocking in the jury’s presence, stating
“Giving me liberty or give me death. That’s what I want” and laughing aloud.
During the State’s closing arguments, [Granger] displayed to the jury a legal pad
with the word “Death” written on it. After he interrupted the State’s argument
several times and disregarded the trial judge’s admonitions to remain quiet,
[Granger] was removed from the courtroom and taken to a holding cell, where he
stayed for the rest of the argument. While the prosecutor continued his argument,
[Granger] made loud noises from the holding cell that were audible inside the
courtroom and prompted a response from courtroom bailiffs.
Ex parte Granger I, 2017 WL 3379285, at *2–3.
II.
Procedural History
Granger was convicted and sentenced to death for capital murder. Clerk’s Record (“CR”)
19–21. The TCCA affirmed Granger’s conviction and sentence on direct review. Granger v.
State, No. AP-77,017, 2015 WL 1875907, at *1 (Tex. Crim. App. Apr. 22, 2015). Granger did
not seek certiorari review. While the direct appeal was pending, Granger filed a 115-page state
habeas application raising ten claims for relief. 1 SHCR-01 4 at 27–114. The trial court entered
4
“SHCR-01” refers to the State Habeas Transcript compiled by the state court in Granger’s initial state habeas
proceeding, preceded by volume number and followed by page reference. Supplemental transcripts will be
denoted as “SHCR-01.Supp.” with the supplemental number appended at the end of the citation. Similarly,
“SHCR-02” refers to the transcript compiled by the state court in Granger’s subsequent state habeas
proceeding, followed by the page number.
5
findings of facts and conclusions of law recommending denial of relief. SHCR-01.Supp.2 at 329.
The TCCA denied relief based upon the findings and conclusions of the trial court, their own
review of the record, and their independent findings and conclusions. Ex parte Granger I, 2017
WL 3379285, at *5. The United States Supreme Court denied Granger a writ of certiorari.
Granger v. Texas, 138 S. Ct. 470 (2017).
Granger filed his initial federal habeas petition on May 11, 2018. (#11). Pursuant to the
court’s scheduling order, he filed an amended federal habeas petition on December 17, 2018. (#s
15 and 20). Two months after filing his amended petition, Granger filed a motion to stay and
abate his federal habeas proceedings so that he could exhaust twelve unexhausted claims in state
court. (#22). The court granted Granger’s request on September 23, 2019. (#34).
Granger returned to state court to file a second-in-time or successive state habeas
application. SHCR-02 at 20–147. The TCCA dismissed the application as an abuse of the writ.
Ex parte Granger II, 2020 WL 915434, at *1.
Upon return from state court, Granger filed his second amended petition for federal habeas
corpus relief. (#44). The Director filed his response on December 2, 2020. (#53). Granger filed
a Reply on May 27, 2021. (#61).
III.
Grounds for Relief
Granger brings the following grounds for relief:
1.
Trial counsels’ conflicting loyalties actually affected their performance, and the
cumulative effect of their deficient performance prejudiced Granger’s defense.
2.
Trial counsel were ineffective at voir dire for failing to challenge ten of the twelve
seated jurors as biased or otherwise unqualified to serve.
3.
Trial counsel failed to raise an Equal Protection challenge to the State’s racially
disproportionate exercise of peremptory challenges.
6
4.
Granger’s rights were violated by trial counsels’ retention of the court’s
competency expert as a punishment defense expert.
5.
Trial counsel were ineffective for hiring as their lead investigator the father of a
State’s witness.
6.
Trial counsel failed to investigate, prepare, and present readily available mental
health evidence at the punishment phase of trial.
7.
Trial counsel failed to investigate, develop, and present Granger’s life history and
background as mitigation.
8.
Trial counsel failed to investigate and prepare punishment witnesses adequately,
which resulted in the presentation of overtly harmful evidence.
9.
Trial counsel failed to investigate and present Samantha Jackson’s diary to rebut
her claim that Granger sexually assaulted her.
10.
The State’s punishment-phase closing argument was improper.
11.
Trial counsel were ineffective in their guilt-phase representation.
12.
Trial counsel mishandled the State’s false presentation of ballistics evidence
during guilt/innocence.
13.
The State improperly called Granger a “murdering son of a bitch” during
Granger’s guilt-phase cross-examination.
14.
Granger is ineligible for the death penalty because his brain damage and psychosis
are morally indistinguishable from intellectual disability.
15.
His death sentence is unconstitutional because it is inconsistent with evolving
standards of decency.
16.
His rights were violated by the improper presentation of extraneous offense
evidence.
17.
The future dangerousness special issue is unconstitutionally vague.
18.
The trial court was unconstitutionally prohibited from instructing the jury that a
vote for life by one juror would result in a life sentence.
19.
The definition of mitigating evidence is unconstitutionally restrictive.
7
20.
The trial court erred by not charging the jury that mitigating circumstances need
not be proven beyond a reasonable doubt.
(#44 at 42–179).
IV.
State Court Proceedings
In order to discuss and analyze Granger’s grounds for relief, the court reviewed the
evidence presented at Granger’s capital murder trial. In addition to the observations made by the
state courts in the rulings quoted above, this court’s review of the trial transcript reveals the
following:
A.
The Guilt-Innocence Phase
At the guilt-innocence phase of trial, the State’s case against Granger consisted of
testimony from the criminal trial judge overseeing Granger’s sexual abuse of a child trial at the
time of the shooting, numerous eyewitnesses, various police officers who responded to the scene
and collected evidence, an employee of criminal defense attorney, Rife Kimler (“Kimler”) 5, who
spoke with Granger on the phone the night before the shooting, four people who were held hostage
by Granger at a nearby business called RCI, and the medical examiner who conducted the autopsy
of Sebolt. The State also presented numerous maps of the area and the scene of the shooting,
video footage of the parking lot and the courthouse entrance, the semiautomatic rifle recovered
from RCI when Granger was arrested, and an apparent suicide note recovered from Granger’s
briefcase.
The criminal trial judge testified that Granger was on trial for a felony offense and that
Granger’s daughter and her mother had testified against him in that case. The judge did not
describe the nature of the offense. 18 RR 29-32. Kimler’s secretary testified that Granger called
5
Kimler represented Granger in his sexual assault of a child trial.
8
Kimler’s office the night before the shooting upset about how the trial was going, wanting a
change of venue, and then stating he would “take care of it tomorrow.” 18 RR 43-46.
The eyewitnesses presented by the State all agreed that Granger fired in the direction of
Samantha, Claudia, and Richard. The eyewitnesses agreed that Granger returned to his truck and
then ran Samantha over with the truck. Many of these witnesses also testified that a passerby,
Sebolt, was shot and killed at the door of the courthouse during the shooting. 19 RR 7-24
(William Anderson (“Anderson”)), 19 RR 37-53 (Sheriff’s Deputy Anthony Barker (“Barker”)),
19 RR 59-73 (Sheriff’s Deputy Donald Hayes (“Hayes”)), 19 RR 77-87 (Vicki Hollingsworth
(“Hollingsworth”)), 19 RR 106-18 (Richard), 19 RR 140-50 (Officer John Poole (“Poole”)), 19
RR 156-63 (Detective Tomora Hamilton (“Hamilton”)), 19 RR 167-79 (Officer James Robichaux
(“Robichaux”)), 20 RR 5-16 (Attorney David Dies (“Dies”)), 20 RR 23-39 (Attorney Troy
Soileau (“Soileau”)), 20 RR 45-62 (Claudia), and 20 RR 66-75 (Samantha). Many of the
witnesses testified that they saw numerous police officers and court personnel also firing their
weapons, mainly in response to shooting by Granger and mainly at his truck as he pulled away.
See, e.g., 19 RR 161-64 (Police Chief Jim Singletary (“Chief Singletary”)), 19 RR 70-71 (Hayes).
The video footage showed Granger arriving in the parking lot across from the courthouse
at approximately 7:30 a.m. and later getting out of his truck when Samantha, Claudia, and Richard
left their cars and headed toward the courthouse. The video footage did not capture Granger firing
his weapon, but it did capture Sebolt falling to the ground as she attempted to enter the revolving
door that led to the courthouse. The video also showed Granger’s truck running over Samantha.
18 RR 135-42 (State’s Ex. 72A, clips from the video played for the jury).
The medical examiner testified that Sebolt was shot twice, once in her right knee and once
in her left thigh. The fatal bullet entered her thigh from the front, went through her femoral vein,
9
and exited out the back. 21 RR 23-29. Because both bullets exited the body, no bullet was
recovered from the body. 21 RR 21-23. Testimony of law enforcement officers established that
all the bullet fragments and bullet jacket fragments recovered near the courthouse were identified
as coming from Granger’s weapon, numerous shell casings near the courthouse came from law
enforcement weapons, ten shell casings in the street came from Granger’s weapon, and other
ballistics evidence (the nature and location of which were not elicited) was unidentifiable. 21 RR
74-78 (Brandy Henley (“Henley”)), 21 RR 86-91, 95 (Robert Baldwin (“Baldwin”)).
Witnesses at RCI and at the hospital—where Granger was taken after he was
arrested—testified to numerous incriminating statements Granger made about the shooting and his
intentions when he started firing, including “I tried to shoot my daughter, ex-wife and exgirlfriend,” “I wanted to kill them, if I killed anyone else I’m sorry,” “How much can a man
take,” “they set me up,” and “they treat me like a killer, I will act like one.” 20 RR 175-76
(Officer Michael Custer (“Custer”)), 20 RR 117-18 (Melvin Bond (“Bond”)), 20 RR 186-89
(Frank Coffin, III (“Coffin, III”)), and 20 RR 199 (Stuart Hanley (“Hanley”)).
Granger testified that he fired at his daughter, Samantha, and ran her over with his truck,
with the intent to harm her, but denied firing in the direction of Claudia or killing Sebolt. He
maintained that the police firing at him were responsible for her death. 23 RR 29-34.
The defense presented a total of eight guilt-phase witnesses. Seven of the witnesses
testified primarily about the underlying sexual assault charges for which Granger was on trial at
the time of the shooting. See 23 RR 20-22 (Granger’s testimony about the sexual assault charges
he and his brothers faced), 23 RR 88, 98-100 (Lyndon Granger’s testimony about the sexual
assault charges he and his brothers faced (“Lyndon”)), 23 RR 111-12 (Bartholomew Granger, Jr.’s
testimony that he never saw any improper sexual activity (“Bartholomew”)), 23 RR at 128-31
10
(Vallire Ozene’s testimony that the sexual assault allegations were lies (“Vallire”)), 23 RR at 19398 (Ulysses Granger, Jr.’s testimony about false accusations of rape against him, Granger, and
Lyndon in Houston, Texas, and Jefferson County, Texas (“Ulysses”)), 23 RR at 173-75 (Kimler’s
testimony confirming that Granger was on trial for the sexual assault of Samantha, that Claudia
had testified the day before, and that he planned to cross-examine Samantha that day), and 23 RR
at 122-26 (Shemerial Sewell’s testimony that her friend, Samantha, was gullible, easily led, and
never disclosed any sexual abuse (“Sewell”)).
Granger’s direct testimony, in addition to describing the sexual assault charges, and his rap
career, 23 RR 9-12 (Granger and Lyndon rap under the names Ice Man and Cyanide and Dr.
Jekyll and Mr. Hyde), included coverage of additional prior bad acts and propensity for violence.
See, e.g., 23 RR 15-16 (Claudia called the police alleging Granger was abusive and tried to cut
her with a knife), 23 RR 29-32 (detailing the shooting and running over of Samantha at the
Jefferson County courthouse and his desire to kill Claudia). The prosecution cross-examined
Granger and his brother, Lyndon. See 23 RR 49-62 (cross of Granger with jail phone calls), 23
RR 104-05 (cross of Lyndon about his purported admission to fellow inmate that he sexually
assaulted Samantha).
The final defense witness, forensic pathologist, Dr. Lee Ann Grossberg (“Dr. Grossberg”),
testified about Sebolt’s injuries and concluded that the bullets that killed her must have come from
the street, where Granger was located. 23 RR 164-65; 23 RR 155 (as an offer of proof, Dr.
Grossberg states her opinion on the record and in the presence of counsel before she testified).
11
B.
The Penalty Phase
As the jury entered the courtroom for the start of the penalty phase on May 1, 2013,
Granger had an outburst:
THE DEFENDANT: I can’t do this. I don’t care what they are. I’m gonna tell
the truth. I can’t do this. I was lied on. They didn’t give me the opportunity.
25 RR 4. The judge excused the jury, and Sonny Cribbs (“Cribbs”), one of Granger’s trial
counsel, asked the judge to appoint a psychiatrist to determine Granger’s competence to go
forward. The judge indicated that he thought Granger could control himself “when he wants to.”
25 RR 5. The judge attempted to address Granger regarding his courtroom behavior during the
punishment phase. 25 RR 8-9. Outside the presence of the jury, Granger launched into a tirade,
touching on a scrambled set of topics and individuals: Granger’s belief that people were “lying
on me,” his innocence of the sexual assault charges, his opposition to trial in Galveston where they
had built the jail “on the backs of black men,” his sexual impotence, the responsibility of the
police for “kill[ing] the old lady,” the persecution of his brother by the authorities, and the closed
minds of the members of the nearly all-white jury. 25 RR 8-20. The judge ordered Granger to
be escorted from the courtroom and took a short recess. 25 RR 20. Court resumed on the record,
outside the presence of the jury. Prosecutor Ed Shettle (“Shettle”) requested permission to
approach the bench. 25 RR 21. Granger began yelling insults at Shettle. 25 RR 21. James
Makin (“Makin”), another of Granger’s trial counsel, reiterated that he believed that Granger had
suffered a breakdown and could no longer communicate with counsel. Granger interrupted:
THE DEFENDANT: I’m controlling myself. I’m fine. He don’t know what he
talking about. Let’s proceed. Let’s move forward. Give me liberty or give me
death. I want death. (Yelling) Give me fucking death. I want it. I rather be
dead.
12
25 RR 21. After one additional unproductive exchange with Granger, the judge dismissed the
jurors for the day. 25 RR 25-26.
The court appointed Dr. Vincent Scarano (“Dr. Scarano”) to conduct a competency
assessment. Dr. Scarano issued a report the next day, concluding that Granger could control
himself and was only seeking attention. 26 RR 5-9. The judge found Granger competent, and the
trial resumed. 26 RR 5-9. Granger apologized to the judge, the City of Galveston, and Sebolt’s
family, 26 RR 8, but he continued to engage repeatedly in emotional outbursts throughout the
penalty phase of the trial.
The State’s case for death involved evidence of Granger’s jail infractions for outbursts and
threats, testimony by his daughter and former wife describing his alleged sexual assaults, and
excerpts of phone calls he had made from the county jail. The jurors heard from several county
jail employees about verbal insults, threats, one instance of physically resisting detention, and a
purported escape plan. The jail employees testified that Granger cursed at a female disciplinary
officer, 26 RR 19 (C. T. Turner), 26 RR 74 (Bryan Jones), physically resisted while officers
removed him to a detention cell for screaming and kicking the door of his regular cell, 26 RR 43
(Richard Gutierrez (“Gutierrez”)), 26 RR 44 (David Leday (“Leday”)), tauntingly cursed at a
nurse, 26 RR 57 (Marissa Jarell (“Jarrell”)), and repeatedly insulted and taunted an African
American officer, 26 RR 66 (Laquintin Wilson (“Wilson”)).
Samantha testified that, beginning when she was about twelve, her father engaged in acts
of sexual conduct that culminated in sexual intercourse when she was fourteen or fifteen. 26 RR
87-96. She recalled that she had kept a diary during that time. 26 RR 99. In 2009, when she was
about seventeen, her mother, Claudia, invited her to come visit for the summer and Samantha
13
decided to stay with her. When Samantha broke this news to her father, he threatened her. 26
RR 97-99. She claimed that her father was abusive and controlling and also abused her brother,
Bartholomew. 26 RR 100-02.
Granger’s ex-wife, Richard, described an incident in about 2003, when Granger asked her
to take Samantha to the doctor because Samantha had dried off with a towel he had used to
ejaculate and he was afraid she was pregnant. Samantha was not pregnant. When Richard
inquired, Samantha denied that anyone had ever touched her inappropriately. 26 RR 122-24.
The State’s case ended with a series of excerpts from tapes of phone calls by Granger, from
the jail, to his mother and other family members. Makin’s objection that the excerpts were
incomplete was overruled. As part of the defense case, Makin played numerous calls in full. 26
RR 126-34.
In the defense case in chief, Granger called eight witnesses and himself—against the advice
of his attorneys—to testify on his behalf. 27 RR 7-126; 28 RR 13-72. Psychiatrist Edward Gripon
(“Dr. Gripon”) addressed the question of future dangerousness.
On direct examination, Dr. Gripon indicated that the opinion he had formed the year before
as the court’s competency expert had not changed. 27 RR 16. During phone calls Granger had
made to his family from jail, his mood varied from “reasonable emotional control” to quite
agitated and upset. Dr. Gripon recognized that “many of his thoughts or ideas are certainly not
ones I would subscribe to as reasonable, logical, or sometimes coherent.” 27 RR 16. Dr. Gripon
saw no evidence of psychosis. 27 RR 16. He found that Granger had a “paranoid personality,”
a diagnosis that fell on Axis II, but he indicated that this was not a mental illness. 27 RR 19. As
a jail inmate, Granger may have made threats but was “mostly a lot of talk,” and he could control
14
his behavior when he wanted to, despite his struggles to do so during the competency evaluation.
27 RR 20-21.
Dr. Gripon acknowledged that the murder “clearly tells you under certain circumstances
what he’s capable of.” He would not feel comfortable seeing Granger with a loaded weapon.
Because Granger had an intermittent explosive disorder, he was potentially dangerous. 27 RR 2528. In Dr. Gripon’s view, Granger suffered from an “almost uncontrolled level of internalized
anger,” and when he elected not to control that anger, “he can be very dangerous.” 27 RR 30.
Wanda Hayes, Granger’s cousin, testified that Granger had “clowned around with my boys
a lot” when they were younger. She stated that she did not think he deserved to die. 27 RR 4953. Five other witnesses—Granger’s mother and father, a prison chaplain, and two fellow jail
inmates—each were called to testify on Granger’s behalf.
Granger testified against the advice of counsel. 28 RR 8. He touched on his parents’
marriage and divorce, his mother’s abusive relationships, his placement in special education
classes, his sister Samantha Granger’s murder, and his failure to return to school after his sister’s
death. 28 RR 14-27. He had a variety of jobs and suffered a number of accidental injuries, and,
as a result, he needed surgery and medication for the pain. He insisted that he would rather
receive the death penalty than life in prison. 28 RR 45.
Granger’s response to cross-examination was argumentative and intemperate. At one
point, it climaxed in a rambling tirade and his removal from the courtroom. 28 RR 52-64. The
examination continued after a break, but culminated in another tirade. 28 RR 64-72. It ended:
THE DEFENDANT: Say “Hello” to the bad guy. Give me liberty or give me
death. That’s what I want.
28 RR 72.
15
In summation, both Makin and Cribbs focused primarily, but not exclusively, on the issue
of future dangerousness. 29 RR 13, 19. Specifically on future dangerousness, trial counsel told
the jury that, in fourteen months at the jail, despite “all these horrible words and rants,” Granger
had inflicted “not one little injury.” Their client was a “blowhard, a big mouth.” 29 RR 15. For
mitigation, counsel relied on Granger’s phone calls with his mother: “All those phone calls and
language are probably the most inappropriate, bigoted, vulgar, profane, sick collection of
misconceptions, fantasies, unconnected thoughts and words that any of us have ever heard”;
Granger “stands on [his mother’s] shoulders.” 29 RR 15-17. Counsel told the jurors that,
although Granger was not insane or mentally ill, he was “not like us,” and should be “removed
from normal society. He should be locked up, and handled by professionals.” 29 RR 18.
Counsel concluded by advising the jury that he and his co-counsel were “kind of on the life side.”
29 RR 19.
Cribbs argued that “part of the problem was the environment he was raised in,” that none
of the defense witnesses had “testified on his behalf,” but even Cain was only banished for killing
Abel. 29 RR 20-21. He asked the jurors to vote for life “even though he doesn’t want it.” 29 RR
22.
As prosecutor Pat Knauth (“Knauth”) argued that Granger was dangerous and thanked the
professionals who had kept him under control at the jail, Granger repeatedly laughed and
interjected comments. 29 RR 25, 28. Prosecutor Shettle’s summation provoked him further. He
hooted derisively at Shettle’s argument that Granger had shown no remorse and contradicted
Shettle’s assertion that the prosecution had proven that Granger had molested his daughter. 29 RR
31-32. He called Shettle a liar and exclaimed that one of the inmate witnesses was a “jailhouse
snitch.” While Shettle continued the argument, Granger wrote on a pad that he displayed to the
16
jury, “DEATH.” 32 RR Court’s Exhibit No. 2. The judge ordered him removed from the
courtroom. Shettle maintained that the defense had not produced any evidence to mitigate
Granger’s culpability. When Shettle commented on Dr. Gripon’s testimony that Granger tended
to lose his temper (“This is mitigation evidence that he wanted you to hear?”), and insisted that
Granger was in control of his defense, those in the courtroom could hear loud noises from the
holding cell. 29 RR 33-40, 42.
For the verdict, the judge had Granger returned to the courtroom, where he made more
intemperate remarks before the jurors entered. 29 RR 43-44. The jurors answered the first
special question “Yes” and the second special question “No,” and the judge advised Granger that
he would impose a sentence of death. 29 RR 44-49.6 As the victim’s daughter prepared to give
a statement about the loss of her mother, Granger loudly insisted that he had not killed Sebolt.
The judge ordered him restrained and gagged while the daughter continued her statement. 29 RR
49-55.
C.
Findings of Fact and Conclusions of Law
In addition to reviewing the evidence presented during Granger’s capital trial, the court
reviews the Findings of Fact, Conclusions of Law, and Order of the 58th District Court of
Jefferson County, Texas, in Granger’s first state habeas case, Ex parte Granger I. These findings
are relevant to the issues of exhaustion and ineffective assistance of counsel. The state habeas
court found:
6
In Granger’s sentencing trial, two of the three special issues under Texas law were submitted: (1) whether
there is a probability that the defendant constitutes a continuing threat to society; and (2) whether, considering
all of the evidence, there are sufficient mitigating circumstances to warrant life without parole rather than
death. TEX. CODE CRIM. PROC., art. 37.071(2)(b)(1)–(2), (e)(1).
17
FINDINGS OF FACT
1. [Granger] was convicted of capital murder in Cause No. 13-16388. The jury
affirmatively answered the first Special Issue on further danger and negatively answered
the second Special Issue on mitigation. Following the Jury’s answers to the Special
Issues, the Trial Court assessed punishment of death by lethal injection. [Granger]’s
conviction was affirmed on direct appeal by the Texas Court of Criminal Appeals.
2. There are no controverted previously unresolved factual issues material to the legality
of [Granger]’s conviction and sentence.
3. [Granger] alleges in Ground One of his Application, that trial counsel were ineffective
for failing to present mitigating evidence in the nature of a social history and failed to
develop a readily available mitigation narrative via the presentation of expert testimony.
FINDINGS:
[Granger] asserts a comprehensive litany of social history issues he claims should have
but were not presented to the jury. The Court finds that while [Granger], in hindsight
perhaps, expanded on the details of [Granger]’s social history, in fact, trial counsel
did present evidence of [Granger]’s social history on each point raised by [Granger].
[Granger] fails to point out that trial counsel presented evidence from a qualified
forensic psychiatrist (among other evidence) relative to [Granger]’s competency,
paranoia, poor coping mechanisms, problems with impulse control, internalized anger,
the fact that [Granger] believed he was a victim of lies, and his overall frustration with
his life. The Court finds that trial counsel presented evidence of the following:
A. Evidence of domestic abuse suffered by [Granger]’s mother and observed by
the jury.
B. Evidence regarding the unsolved murder of [Granger]’s sister and its effect on
[Granger].
C. Evidence regarding [Granger]’s child custody situation over a period of years.
D. Evidence of abuse suffered by [Granger]’s mother.
E. Evidence regarding the impact of [Granger]’s daughter’s sexual abuse
allegations against him.
F. Psychiatric evidence from Dr. Edward Gripon regarding competency,
paranoia, poor coping mechanisms, problems with impulse control, [Granger]’s
internalized anger, the fact that he felt he was the victim of lies, his frustration with
life, as well as his ability to control his behavior.
G. This Court further finds that Samantha’s sexual assault allegations against
[Granger] and his brother were not only discussed during trial, but were the
18
catalyst for the events prompting a capital murder indictment stemming from a
retaliation for those allegations.
[Granger] alleges trial counsel to be ineffective for failing to develop a trial narrative
emphasizing his social history via Norma Villanueva, a defense mitigation specialist.
The Court finds that mitigation evidence of the same nature proposed by Norma
Villanueva was, in fact, presented; and that, based upon the affidavits of trial counsel,
a sufficient strategic reason existed not to call Norma Villanueva as a witness.
4. Ground Two of the Application alleges ineffective assistance of counsel for failure to
present an expert to explain the impact of [Granger]’s social history.
FINDINGS:
This argument is essentially the same as that claimed in Ground One regarding expert
testimony, albeit in more detail. Expert testimony is not necessarily of benefit to the
trier of fact, especially as in this case wherein trial counsel, through lay witnesses,
presented social history/mitigation evidence including, but not limited to, the
following:
A. Evidence regarding [Granger], Ulysses Granger, and Vallire Ozene (Granger)’s
[respective social histories].
B. Evidence of [Granger]’s lack of relationship with his father.
C. Evidence of the breakup of [Granger]’s parents.
D. Evidence of abuse directed toward [Granger]’s mother.
E. Evidence of [Granger]’s mother’s absence[s] during times when she shipped out
as a merchant seaman.
F. Evidence of subsequent relationships between [Granger]’s mother and another man
named Davis Ross (“Ross”).
G. Evidence of a subsequent relationship between [Granger]’s mother and Raymond
Ozene (“Ozene”).
H. Evidence that [Granger]’s mother moved the family several times during his
formative years and its effect upon him.
I. Evidence that [Granger]’s sister, Samantha, was taken by a pimp when [Granger]
was in elementary school, and the impact that her absence had upon him.
J. Evidence that [Granger]’s sister, Samantha, ultimately returned to the family as a
different person.
19
K. Evidence that [Granger]’s sister, Samantha, was ultimately murdered by someone
who broke into her apartment and shot her several times, and the impact that had upon
[Granger].
L. Evidence that [Granger] had been in multiple schools, failed two grades and
dropped out of school in the ninth grade.
M. Evidence regarding child custody battles with his ex-wife.
N. Evidence that he suffered from a degenerative disc disease and its effect on his
ability to work.
O. Evidence regarding his daughter, Samantha’s, allegations that he sexually abused
her and its effect on him.
Further, trial counsels’ Affidavits attached to the State’s Response that developments
during trial and the presentation of the same evidence through law [sic] witnesses
dictated against, or at least made unnecessary and unwarranted, the calling of an expert
witness on social history/mitigation.
5. Ground Three of the Application alleges trial counsel to be ineffective for failing to
investigate and present Samantha Jackson’s journal, not only rebutting the aggravation
evidence but also containing mitigation evidence.
FINDINGS:
[Granger]’s daughter, Samantha Jackson, composed a crudely hand-written diary earlier
in her life. She indicates therein she loved her father.
Based upon the Affidavits attached to the Writ, trial counsel extensively interviewed
Rife Kimler, trial counsel in the underlying sexual assault case against Samantha.
Kimler relayed the contents of the diary. Most importantly, trial counsel crossexamined Samantha about the diary. She testified she was too young at the time to
remember its contents.
6. Ground Four alleges trial counsel was ineffective for failure to object to the State’s
calling [Granger] a “murdering son of a bitch” in the presence of the jury, as well as
other inappropriate comments.
FINDINGS:
The Court finds that [Granger] testified on his own behalf. The Record supports his
demeanor, and the jury was able to observe that demeanor. [Granger]’s conduct at
trial is relevant. The Court finds that during [Granger]’s cross examination, he began
to ask the prosecutor questions and invited a response.
20
Specifically, the Court finds that [Granger] invited the response. The Court finds that
although the prosecutor’s comments were, perhaps, not a model of decorum, given the
demeanor of [Granger] all during the trial the prosecutor’s comments were harmless.
The Court further finds that, based upon trial counsel’s Affidavit attached to the
State’s Response, sufficient reason existed not to object to the comments.
The Court further finds that all facts necessary to develop this Ground are contained
in the Record on appeal. The Court further finds that [Granger] did not raise this
Ground on direct appeal.
7. Ground Five alleges trial counsel to be ineffective for failure to object to specific
portions of the State’s closing argument on punishment.
FINDINGS:
[Granger] asserts several alleged inflammatory comments made by the prosecutor
during closing argument. [Granger] objected to some of the comments and did not
object to others. [Granger] raised the issue of the Prosecutor’s comments on appeal
based on objections made and via fundamental error, grounded on the cumulative
effect of the Prosecutor’s alleged improper comments.
[Granger], by this Application, raises additional allegations of improper prosecutorial
comment, to which no objection was made. The Court finds that all the facts
necessary to develop this Ground are contained in the Record on appeal and could
have been raised, but were not, on direct appeal.
The Court further finds that, given the facts of the case and the demeanor of [Granger]
at trial, the Prosecutor’s comments were harmless.
8. Ground Six alleges that [Granger] was denied due process to an impartial jury based
upon a claim that Juror Rivera committed misconduct by automatically voting for the
death penalty.
FINDINGS:
Lynn Rivera was a juror in the case. She voted for guilt, answered Special Issue No.
One, “Yes,” and Special Issue No. Two, “No.” [Granger] alleges Juror Rivera
committed misconduct by automatically voting for the death penalty, based upon her
Affidavit attached to the Application. Specifically, she declared, “I do remember
deciding to vote for death at the same time I decided to vote for guilt.”
Rivera provided a subsequent Affidavit attached to the State’s Response stating,
“When I said that I decided to vote for the death penalty at the same time I decided to
vote for guilt, what I meant was that I felt the death penalty was appropriate for the
crime. I did not mean that I was not willing to listen to the punishment evidence or
mitigating circumstances. As a matter of fact, I specifically remember during Voir
Dire being asked if I knew what mitigating circumstances meant, and I told them I did.
21
The Prosecutor described it for me to make sure I understood. I did listen during the
punishment phase, and what I heard convinced me to vote for the death penalty.”
The Court finds that the juror’s Affidavit does not assert: 1) whether any outside
influence was improperly brought to bear upon the juror, or 2) rebuttal of a claim that
a juror is not qualified to serve. The Court further finds that the Affidavit does assert
matters occurring during the jury’s deliberations and the effect of “anything” on the
juror’s mind or emotions or mental processes influencing her assent to the verdict.
The vote of the jury was unanimous on Special Issues One and Two.”
9. [Granger] alleges in Ground Seven that his rights under the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution were violated when the Court
was prohibited from instructing the jury that a vote by one juror would result in a life
sentence.
FINDINGS:
At the conclusion of the punishment phase of trial, the jury was instructed to answer
the applicable Special Issues mandated by TEX. CODE CRIM. PROC., art. 37.071.
10. [Granger] alleges in Ground Eight that Granger’s death sentence was arbitrarily and
capriciously assigned on the jury’s answer to an unconstitutionally vague first issue.
FINDINGS:
At the conclusion of the punishment phase of trial, the jury was instructed to answer
the applicable Special Issues as mandated by T EX. CODE CRIM. PROC., art. 37.071.
11. [Granger] alleges in Ground Nine that his death sentence is unconstitutional because
it was assigned on Texas’ alleged arbitrary system of administering the death penalty.
FINDINGS:
There is no evidence that [Granger]’s death sentence was the result of an arbitrary
application of the law by the prosecutors or the courts, or that it was based upon
[Granger]’s race or ethnicity.
12. [Granger] alleges in Ground Ten that his death sentence should be vacated because
the punishment phase jury instruction restricted the evidence that the jury could determine
was mitigating.
FINDINGS:
At the conclusion of the punishment phase of trial, the jury was instructed to answer
the statutorily required instructions mandated by T EX. CODE CRIM. PROC., art.
37.071.
22
CONCLUSIONS OF LAW
1. Grounds One through Five of the Application allege, in various manners, trial
counsel provided ineffective assistance of counsel, violating his United States
Constitutional Sixth Amendment rights. Texas has established a process for postconviction equitable habeas corpus relief under Texas Code of Criminal Procedure
11.07, et seq. The Applicable case law is Strickland v. Washington, 466 U.S. 688
(1984); Jackson v. State, 845 S.W.2d 954 (Tex. Crim. App. 1998). The Defendant
must show by a preponderance of the evidence that trial counsel’s performance fell
below an objective standard of reasonableness and that, but for counsel’s errors, a
different result would have occurred. Reasonably effective assistance does not mean
error-free counsel or whose performance is gaged [sic] from hindsight. Bridge v.
State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986); Ingham v. State, 679 S.W.2d
503, 509 (Tex. Crim. App. 1984); McFarland v. State, 845 S.W.2d 824, 843 (Tex.
Crim. App. 1992). Isolated instances of failure to object do not constitute ineffective
assistance of counsel. Johnson v. State, 629 S.W.2d 731 (Tex. Crim. App. 1981);
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An exception
to this general rule exists where the potential reasons(s) to object are not apparent
from the record and further hearing is necessary to consider facts, circumstances and
rationale behind counsel’s actions at that juncture of trial. In other words, when the
record is insufficient. See Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App.
1999); Robinson v. State, 16 S.W.3d 808 (Tex. Crim. App. 2000). Trial strategy
will be reviewed by appellate courts only if the record demonstrates that the action
was without any plausible basis. Ex parte Ewing, 570 S.W.2d 941 (Tex. Crim.
App. 1978).
When reviewing a claim of ineffective assistance of Counsel, an appellate court’s
judicial scrutiny of counsel’s performance must be highly deferential. Strickland, 446
U.S. at 689; Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999).
The fact that another attorney might have pursued a different strategy will not
support a finding of ineffectiveness of counsel. Passmore v. State, 617 S.W.2d 682, 686
(Tex. Crim. App. 1981); Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App.
1993).
Moreover, the competency of representation is not to be judged by hindsight or by
facts unknown at the time of trial. Strickland, 446 U.S. at 689. Counsel’s performance
is measured against the law in effect at the time of trial; a claim of ineffective assistance
of counsel cannot be based on unsettled law. Vaughn v. State, 931 S.W.2d 564, 567
(Tex. Crim. App. 1996).
2. [Granger] has not shown by a preponderance of the evidence that trial counsel was
ineffective under Ground One. Counsel presented mitigating evidence and was not
ineffective for failing to produce a mitigation expert. Trial counsel’s failure to call
an expert had a plausible basis. Ground One is denied.
23
3. [Granger] has not shown by a preponderance of the evidence that trial counsel was
ineffective in Ground Two for failing to call an expert witness to testify about the
impact of [Granger]’s social history. Trial counsel’s failure to call an expert had a
plausible basis.7
4. [Granger] has waived Ground No. Four by failing to raise it on direct appeal.
[Granger] has failed to demonstrate by a preponderance of the evidence that trial
counsel was ineffective [and] that the prosecutor’s comments, if improper, were
harmless, given the record as a whole. A plausible basis existed for trial counsel’s
failure to object.
5. This Court finds that, in Ground Five, [Granger] is attempting to raise an issue that
could have been raised and addressed on appeal and is thus not cognizable via this
application. “The Great Writ should not be used in matters that should have been
raised on appeal.” Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004)
citing Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989). The writ of
habeas corpus should not be used in matters that should have been raised on direct
appeal, and thus, even a constitutional claim is forfeited if the applicant for writ of
habeas corpus had the opportunity to raise the issue on direct appeal. Ex parte
Gardner, 959 S.W.2d 189, 191 (Tex. Crim. App. 1996) (if a defendant could have
raised a claim on direct appeal, he may not raise the claim in habeas proceedings).
This is because the writ of habeas corpus is an extraordinary remedy that is available
only when there is no other adequate remedy at law. Ex parte Townsend, 137
S.W.3d at 81 (citing Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App.
1994)). [Granger] has not met his burden of establishing that trial counsels[’]
performance fell below an objective standard of reasonableness, that their
performance was deficient, that failure to object to the prosecutor’s closing
arguments not raised on appeal prejudiced his defense, or that making said objections
would have changed the outcome of the trial.
This Court finds that [Granger]’s Fifth Ground is without merit and should be
denied.
6. [Granger]’s allegations under Ground Six are not cognizable as being in violation of
Texas Rules of Evidence 606(b). [Granger] has failed to establish, by a
preponderance of the evidence, that a different result would have occurred but for
the Affidavit. Texas Code of Criminal Procedure Art. 37.071, Sec. 2(d)(2) requires
the vote of only ten jurors against the death penalty. [Granger]’s affidavit from
Juror Rivera is incomplete. The subsequent Affidavit taken as a whole demonstrates
that Juror Rivera was able to follow the law and considered mitigating evidence.
7. The Court of Criminal Appeals has repeatedly held, and this Court finds, that the
Texas death penalty scheme is constitutional. Saldano v. State, 232 S.W.3d 77
7
The trial court did not issue a Conclusion of Law regarding Ground Three (Samantha’s diary).
24
(Tex. Crim. App. 2007) (declining to revisit previous holdings of constitutionality
of Texas death penalty scheme under the United States and Texas Constitutions).
This Court finds that in Ground Seven, [Granger] is attempting to raise an issue that
could have been raised and addressed on appeal and is thus not cognizable via this
application. “The Great Writ should not be used in matters that should have been raised
on appeal.” Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004), citing Ex parte
Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989). The writ of habeas corpus should
not be used in matters that should have been raised on direct appeal, and thus, even a
constitutional claim is forfeited if the applicant for writ of habeas corpus had the
opportunity to raise the issue on direct appeal. Ex parte Gardner, 959 S.W.2d 189, 191
(Tex. Crim. App. 1996) (if a defendant could have raised a claim on direct appeal, he
may not raise the claim in habeas proceedings). This is because the writ of habeas corpus
is an extraordinary remedy that is available only when there is no other adequate remedy
at law. Ex parte Townsend, 137 S.W.3d at 81 (citing Ex parte Drake, 883 S.W.2d 213,
215 (Tex. Crim. App. 1994)).
This Court further finds that [Granger]’s Seventh Ground is without merit and should
be denied.
8. The Court of Criminal Appeals has repeatedly held, and this Court finds that the
Texas death penalty scheme is constitutional. Saldano v. State, 232 S.W.3d 77,
(Tex. Crim. App. 2007) (declining to revisit previous holdings of constitutionality
of Texas death penalty scheme under the United States and Texas Constitutions).
The Texas Court of Criminal Appeals has consistently and repeatedly held, and this
Court finds that “deliberately,” “criminal acts of violence,” and “continuing threat
to society” require no special definitions and that TEX. CODE CRIM. PROC., art.
37.071 is not unconstitutional for lack of such definitions. Goss v. State, 826
S.W.2d 162 (Tex. Crim. App. 1992) (holding that trial court’s refusal to define
criminal acts of violence and continuing threat to society poses no constitutional
problems); Earhart v. State, 823 S.W.2d 607 (Tex. Crim. App. 1991) (holding that
“deliberately,” “criminal acts of violence,” and “continuing threat to society”
require no special definitions); Boyd v. State, 811 S.W.2d 105 (Tex. Crim. App.
1991) (holding that Article 37.071 is not unconstitutionally vague for lack of
statutory definitions of “deliberately” and “criminal acts of violence”).
This Court finds that in Ground Eight, [Granger] is attempting to raise an issue that
could have been raised and addressed on appeal and is thus not cognizable via this
application. “The Great Writ should not be used in matters that should have been raised
on appeal.” Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004) citing Ex parte
Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989). The writ of habeas corpus should
not be used in matters that should have been raised on direct appeal, and thus, even a
constitutional claim is forfeited if the applicant for writ of habeas corpus had the
opportunity to raise the issue on direct appeal. Ex parte Gardner, 959 S.W.2d 189,191
Tex. Crim. App. 1996) (if a defendant could have raised a claim on direct appeal, he may
25
not raise the claim in habeas proceedings). This is because the writ of habeas corpus is
an extraordinary remedy that is available only when there is no other adequate remedy
at law. Ex parte Townsend, 137 S.W.3d at 81 (citing Ex parte Drake, 883 S.W.2d 213,
215 (Tex. Crim. App.1994).
This Court finds that [Granger]’s Eighth Ground is without merit and should be
denied.
9. The Court of Criminal Appeals has repeatedly held, and this Court finds that the
Texas Death penalty scheme is constitutional. Saldano v. State, 232 S.W.3d 77,
(Tex. Crim. App. 2007) (declining to revisit previous holdings of constitutionality
of Texas death penalty scheme under the United States and Texas Constitutions).
Prosecutorial discretion does not render the death penalty unconstitutional. Cantu
v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926
(1993).
This Court finds that in Ground Nine, [Granger] is attempting to raise an issue that
could have been raised and addressed on appeal and is thus not cognizable via this
application. “The Great Writ should not be used in matters that should have been raised
on appeal.” Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004) citing Ex parte
Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989). The writ of habeas corpus should
not be used in matters that should have been raised on direct appeal, and thus, even a
constitutional claim is forfeited if the applicant for writ of habeas corpus had the
opportunity to raise the issue on direct appeal. Ex parte Gardner, 959 S.W.2d 189, 191
(Tex. Crim. App. 1996) (if a defendant could have raised a claim on direct appeal, he
may not raise the claim in habeas proceedings). This is because the writ of habeas corpus
is an extraordinary remedy that is available only when there is no other adequate remedy
at law. Ex parte Townsend, 137 S.W.3d at 81 (citing Ex parte Drake, 883 S.W.2d 213,
215 (Tex. Crim. App. 1994)). This Court concludes that [Granger]’s 9th ground (claim)
is without merit and should be denied.
10. The Court of Criminal Appeals has repeatedly held, and this Court finds that the
Texas death penalty scheme is constitutional. Saldano v. State, 232 S.W.3d 77
(Tex. Crim. App. 2007) (declining to revisit previous holdings of constitutionality
of Texas death penalty scheme under the United States and Texas Constitutions).
The jury was properly provided the proper instructions and asked to answer the
statutorily mandated issues as mandated by T EX. CODE CRIM. PROC., art. 37.071.
Texas law requires the court to instruct the jury that it shall consider mitigating
evidence to be evidence that a juror might regard as reducing the defendant’s moral
blameworthiness. TEX. CODE CRIM. PROC., art. 37.071, Sec. 2(f)(4). The special issues
and instructions given to the jury in the punishment phase of trial were in accordance
with the mandates of TEX. CODE CRIM. PROC., art. 37.071.
The Texas Court of Criminal Appeals has previously rejected the argument that T EX.
CODE CRIM. PROC., art. 27.071 unconstitutionally narrows a jury’s discretion to consider
26
as mitigating only those factors concerning moral blameworthiness. Shannon v. State,
942 S.W.2d 591 (Tex. Crim. App. 1996); Colella v. State, 915 S.W.2d 834 (Tex. Crim.
App. 1995).
This Court finds that in Ground Ten, [Granger] is attempting to raise an issue that
could have been raised and addressed on appeal and is thus not cognizable via this
application. “The Great Writ should not be used in matters that should have been raised
on appeal.” Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004) (citing Ex parte
Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989)). The writ of habeas corpus
should not be used in matters that should have been raised on direct appeal, and thus,
even a constitutional claim is forfeited if the applicant for writ of habeas corpus had the
opportunity to raise the issue on direct appeal. Ex parte Gardner, 959 S.W.2d 189, 191
(Tex. Crim. App. 1996) (holding that if a defendant could have raised a claim on direct
appeal, he may not raise the claim in habeas proceedings). This is because the writ of
habeas corpus is an extraordinary remedy that is available only when there is no other
adequate remedy at law. Ex parte Townsend, 137 S.W.3d at 81 (citing Ex parte Drake,
883 S.W.2d 213, 215 (Tex. Crim. App. 1994)).
This Court concludes that [Granger]’s Tenth Ground is without merit and should be
denied.
(#50-15, pp. 189–206, 332); SHCR-01.Supp. 329, 186–203.
The TCCA subsequently denied the application for a writ of habeas corpus “based upon the
trial court’s findings and conclusions that we have adopted, our own review of the record, and our
independent findings and conclusions, we deny relief.” Ex parte Granger I, 2017 WL 3379285,
at *5. (SHCR 2).
As discussed more fully below, this court must defer to the state court’s findings and
conclusions, as instructed in 28 U.S.C. § 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).
27
V.
Standard of Review
A.
Section 2254 Standards
“The federal habeas statute, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), imposes important limitations on the power of federal courts to overturn
the judgments of state courts in criminal cases.” Shoop v. Hill, 139 S. Ct. 504, 506 (2019). In
addition to overcoming procedural hurdles, a state prisoner must meet exacting substantive
standards to obtain habeas corpus relief. A federal court may not grant habeas corpus relief with
respect to any claim that was adjudicated on the merits in state court unless the state court's
adjudication:
(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 proceeding.
28 U.S.C. § 2254(d).
The standard under Section 2254(d) is highly deferential and difficult to meet. Pinholster,
563 U.S. at 181. It “reflects the view that habeas corpus is a ‘guard against extreme malfunctions
in the state criminal justice systems,’ not a substitute for ordinary error correction through
appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443
U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)). State courts are presumed to know and
follow the law, Woods v. Donald, 575 U.S. 312, 316 (2015), and Section 2254(d) “demands that
state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181 (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
The statute therefore “restricts the power of federal courts to grant writs of habeas corpus
based on claims that were ‘adjudicated on the merits’ by a state court.” Shinn v. Kayer, 141 S.
28
Ct. 517, 520 (2020) (per curiam) (citation omitted). “When a state court has applied clearly
established federal law to reasonably determined facts in the process of adjudicating a claim on
the merits, a federal habeas court may not disturb the state court’s decision unless its error lies
‘beyond any possibility for fairminded disagreement.’” Id. (quoting Richter, 562 U.S. at 103).
Further, “[u]nder § 2254(d),” the reasonableness of the state court decision—not whether
it is correct—“is ‘the only question that matters.’” Id. at 526 (quoting Richter, 562 U.S. at 102);
accord Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not
whether a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.”); Sanchez v. Davis, 936 F.3d
300, 305 (5th Cir. 2019) (“[T]his is habeas, not a direct appeal, so our focus is narrowed. We
ask not whether the state court denial of relief was incorrect, but whether it was
unreasonable—whether its decision was ‘so lacking in justification’ as to remove ‘any possibility
for fairminded disagreement.’” (citation omitted)), cert. denied, 140 S. Ct. 2529 (2020); Hughes
v. Vannoy, 7 F.4th 380, 387 (5th Cir. 2021) (“A merely incorrect state court decision is not
sufficient to constitute an unreasonable application of federal law . . . . Instead, the state court
decision must be ‘so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.’” (footnotes
omitted)).
A state court adjudication on direct appeal is due the same deference under Section 2254(d)
as an adjudication in a state post-conviction proceeding. See, e.g., Dowthitt v. Johnson, 230 F.3d
733, 756–57 (5th Cir. 2000) (a finding made by the TCCA on direct appeal is an “issue . . .
adjudicated on the merits in state proceedings,” to be “examine[d] . . . with the deference
demanded by AEDPA” under 28 U.S.C. § 2254(d)), cert. denied, 532 U.S. 915 (2001). Nothing
29
“in AEDPA or [the Supreme] Court’s precedents permit[s] reduced deference to merits decisions
of lower state courts.” Shinn, 141 S. Ct. at 524 n.2 (citing 28 U.S.C. § 2254).
Starting with Section 2254(d)(1), a state court decision is “‘contrary to’ clearly established
federal law if it relies on legal rules that directly conflict with prior holdings of the Supreme Court
or if it reaches a different conclusion than the Supreme Court on materially indistinguishable
facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.), cert. denied, 541 U.S. 1087 (2004); see
Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam) (“We have emphasized, time and time again,
that the [AEDPA] prohibits the federal courts of appeals from relying on their own precedent to
conclude that a particular constitutional principle is ‘clearly established.’” (citation omitted)). In
Will v. Lumpkin, the Fifth Circuit explained:
A state court unreasonably applies clearly established Supreme Court precedent
when it improperly identifies the governing legal principle, unreasonably extends
(or refuses to extend) a legal principle to a new context, or when it gets the
principle right but ‘applies it unreasonably to the facts of a particular prisoner’s
case.’
978 F.3d 933, 940 (5th Cir. 2020) (quoting Williams v. Taylor, 529 U.S. 362, 407–08 (2000))
(citation omitted), cert. denied, 142 S. Ct. 579 (2021). “But the Supreme Court has only clearly
established precedent if it has ‘broken sufficient legal ground to establish an asked-for
constitutional principle.’” Id. (quoting Taylor, 529 U.S. at 380–82) (citations omitted).
As noted above, “[f]or purposes of § 2254(d)(1), an unreasonable application of federal
law is different from an incorrect application of federal law. . . . 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 (citations and internal
quotation marks omitted).
Under § 2254(d), a habeas court must determine what arguments or theories
supported or . . . could have supported, the state court’s decision; and then it must
30
ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of [the Supreme]
Court.
Id. at 102; see Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017) (recognizing that Section
2254(d) tasks courts “with considering not only the arguments and theories the state habeas court
actually relied upon to reach its ultimate decision but also all the arguments and theories it could
have relied upon” (citation omitted)), cert. denied, 139 S. Ct. 78 (2018).
The Supreme Court has further explained that “[e]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.” Richter, 562 U.S. at
101 (internal quotation marks omitted). “[E]ven a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. at 102.
The Supreme Court has clarified that, “[i]f this standard is difficult to meet, that is because
it was meant to be.” Id. “As amended by AEDPA, § 2254(d) stops short of imposing a complete
bar on federal court relitigation of claims already rejected in state proceedings,” but “[i]t preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with this Court’s precedents,” and “[i]t goes no further.”
Id. Thus,
[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner
must show that the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.
Id. at 103; accord Burt v. Titlow, 571 U.S. 12, 20 (2013) (“We will not lightly conclude that a
State’s criminal justice system has experienced the extreme malfunction for which federal habeas
relief is the remedy.”).
31
As to Section 2254(d)(2)’s reference to “an unreasonable determination of the facts,” the
Supreme Court made clear that “a state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290, 301, 293 (2010). Rather, federal habeas relief is precluded where
the state court’s factual determination is reasonably debatable. Id. Under this standard,
it is not enough to show that a state court’s decision was incorrect or erroneous.
Rather, a petitioner must show that the decision was objectively unreasonable, a
substantially higher threshold requiring the petitioner to show that a reasonable
factfinder must conclude that the state court’s determination of the facts was
unreasonable.
Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (brackets and internal quotation marks
omitted).
The court must presume that a state court’s factual determinations are correct and can find
those factual findings unreasonable only where the petitioner “rebut[s] the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Gardner v. Johnson, 247
F.3d 551, 560 (5th Cir. 2001). This presumption applies not only to explicit findings of fact but
also “to those unarticulated findings which are necessary to the state court’s conclusions of mixed
law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001), cert. denied, 537 U.S.
883 (2002); see Ford v. Davis, 910 F.3d 232, 234–35 (5th Cir. 2018) (Section 2254(e)(1)
“‘deference extends not only to express findings of fact, but to the implicit findings of the state
court.’ As long as there is ‘some indication of the legal basis for the state court’s denial of relief,’
the district court may infer the state court’s factual findings even if they were not expressly made.”
(footnotes omitted)).
Moreover, even if the state court errs in its factual findings, mere error is not enough—the
state court’s decision must be “based on an unreasonable factual determination. In other words,
32
[habeas relief is not warranted where] even if the [state court] had gotten [the disputed] factual
determination right, its conclusion wouldn’t have changed.” Will, 978 F.3d at 942. Further,
“determining whether a state court’s decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from the state court explaining the state
court’s reasoning.” Richter, 562 U.S. at 98; see Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.
2003) (“[A] federal habeas court is authorized by Section 2254(d) to review only a state court’s
‘decision,’ and not the written opinion explaining that decision” (quoting Neal v. Puckett, 286
F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam))), cert. denied, 541 U.S. 1045 (2004);
Evans, 875 F.3d at 216 n.4 (even where “[t]he state habeas court’s analysis [is] far from
thorough,” a federal court “may not review [that] decision de novo simply because [it finds the
state court’s] written opinion ‘unsatisfactory’” (quoting Neal, 286 F.3d at 246)); see also Hughes,
7 F.4th at 387 (observing that a federal habeas court also “must ‘carefully consider all the reasons
and evidence supporting the state court’s decision’” and that a decision that “does not explain its
reasoning does not affect [federal habeas] review,” as federal courts “are required to ‘determine
what arguments or theories could have supported the state court’s determination’ and examine
‘each ground supporting the state court decision’” (footnotes omitted)).
B.
Ineffective Assistance Claims under Strickland
Granger contends his trial counsel provided ineffective assistance of counsel in eleven out
of his twenty federal habeas claims, in violation of Strickland v. Washington, 466 U.S. 668
(1984). Strickland provides a two-pronged standard, and the petitioner bears the burden of
proving both prongs. 466 U.S. at 687.
Under the first prong, the petitioner “must show that counsel’s performance was deficient.”
Id. To establish deficient performance, he “must show that counsel’s representation fell below
33
an objective standard of reasonableness,” with reasonableness judged under professional norms
prevailing at the time counsel rendered assistance. Id. at 688. The Strickland court explained:
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
reasonable 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 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 689–90. Even under de novo
review, the standard for judging counsel’s representation is a most deferential one.
34
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. . . . 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 as Richter, 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 Section 2254(d), the deference due to counsel’s representation must 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. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
C.
Exhaustion of State Remedies and Procedural Default
After this case was stayed at Granger’s request, he filed a 127-page second-in-time or
successive state habeas application raising twelve (12) multi-faceted claims for relief. SCHR-02
at 4-147. Eleven of the twelve claims were ineffective assistance of counsel claims. The TCCA
dismissed the successive application as an abuse of the writ. Ex parte Granger II, 2020 WL
915434, at *1. Here, Granger raises those same twelve (12), procedurally defaulted, multi-faceted
claims for relief in his amended federal petition. The resolution of Granger’s amended petition
concerns complex procedural issues involving exhaustion of state remedies, procedural default,
and whether Granger can overcome the procedural default via Martinez v. Ryan, 566 U.S. 1
(2012) and Trevino v. Thaler, 569 U.S. 413 (2013).
35
State prisoners bringing federal habeas petitions 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 decided on the merits by the TCCA. Richardson v.
Procunier, 762 F.2d 429, 432 (5th Cir. 1985).
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court announced the
procedural default doctrine as a necessary corollary to the exhaustion requirement. 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 that would now be procedurally defaulted
in state court are ordinarily dismissed as procedurally barred. Fearance v. Scott, 56 F.3d 633,
642 (5th Cir.), cert. denied, 515 U.S. 1153 (1995); see Finley v. Johnson, 243 F.3d 215, 220 (5th
Cir. 2001). This includes unexhausted claims that would be barred by Texas’s abuse-of-the-writ
rules. Fearance, 56 F.3d at 642.
This 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. Fearance, 56 F.3d at 637, 642 (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.” Moore v. Quarterman, 534 F.3d 454, 463 (5th
36
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).
D.
Application of Martinez and Trevino Standards
Granger argues that his eleven (11) claims of ineffective assistance of counsel are excused
from procedural default in light of Martinez and Trevino. See Martinez, 566 U.S. at 14; see also
Trevino, 569 U.S. at 416.8
In Martinez, the Supreme 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.
566 U.S. at 17.
Martinez creates a narrow exception to the procedural bar doctrine. The exception “treats
ineffective assistance by a prisoner’s state post conviction counsel as cause to overcome the default
of a single claim.” Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). A federal habeas petitioner
relying on Martinez to show ineffective representation by state habeas counsel must meet three
elements before the court can consider the underlying defaulted Strickland claim. First, the
petitioner must show that “his claim of ineffective assistance of counsel at trial is substantial—i.e.,
has some merit—.” Cantu v. Davis, 665 F. App’x 384, 386 (5th Cir. 2016), cert. denied, 137 S.
8
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.
37
Ct. 2285 (2017); see Allen v. Stephens, 805 F.3d 617, 626 (5th Cir. 2015), abrogated on other
grounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).
Second, the petitioner must show that “habeas counsel was ineffective” for not raising the
underlying Strickland claim. Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013), cert. denied,
573 U.S. 949 (2014). In reviewing this issue, the federal habeas court applies Strickland to
“indulge a strong presumption that [habeas] counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. Federal habeas courts recognize
that habeas 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.” Vasquez v. Stephens, 597 F. App’x 775, 780 (5th Cir.) (quoting Smith v. Robbins, 528
U.S. 259, 288 (2000)), cert. denied, 577 U.S. 830 (2015). To prove ineffective assistance, the
petitioner must demonstrate that “a particular nonfrivolous issue was clearly stronger than issues
that counsel did present.” Vasquez, 597 F. App’x at 780 (quoting Robbins, 528 U.S. at 288).
Third, even after showing cause flowing from habeas counsel’s representation, the
petitioner must demonstrate actual prejudice. Canales v. Stephens, 765 F.3d 551, 571 (5th Cir.
2014); see Martinez, 566 U.S. at 18 (remanding for an assessment of actual prejudice). The Fifth
Circuit has held that, even after showing cause under Martinez, a petitioner must show actual
prejudice by “establish[ing] 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.” Hernandez v. Stephens, 537 F. App’x 531, 542 (5th Cir. 2013),
cert. denied, 572 U.S. 1036 (2014); see United States v. Frady, 456 U.S. 152, 170 (1982).
At a minimum, actual prejudice under Martinez requires the petitioner to show a reasonable
probability that he would have been granted state habeas relief had his habeas counsel’s
38
performance not been deficient. Soliz v. Davis, 750 F. App’x 282, 290 (5th Cir. 2018), cert.
denied, 139 S. Ct. 1447 (2019); Mamou v. Davis, 742 F. App’x 820, 828 (5th Cir. 2018), cert.
denied, 139 S. Ct. 1171 (2019); Barbee v. Davis, 660 F. App’x 293, 314 (5th Cir. 2016);
Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014), cert. denied, 574 U.S. 1144 (2015).
“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, 572 U.S. 1044 (2014).
Granger may proceed to federal habeas review of an unexhausted and procedurally barred
claim only if he can satisfy the requirements of Martinez and Trevino. The question before the
court is whether Granger made the requisite showing under Martinez and Trevino as to each of his
applicable, procedurally defaulted, ineffective assistance of counsel claims.
Granger presents new evidence with his amended petition to argue that his trial counsel and
state habeas counsel were ineffective. Based on the arguments presented by Granger, he focuses
on whether trial counsel discharged their respective duties to uncover and present mitigating
evidence and whether state habeas counsel’s alleged failure to raise ineffective assistance of trial
counsel claims in Granger’s first state application for a writ of habeas corpus (Granger I)
overcomes the default. Granger’s new evidence presented in Granger II was not reviewed by the
TCCA because Granger II was dismissed for abuse of the writ. Granger has also attached new
evidence to his federal habeas petition that was not attached to his second state habeas application
in Granger II. This new evidence attached to his amended federal petition has not been presented
to or reviewed by the TCCA.
Recently, the Supreme Court decided Shinn v. Ramirez, 142 S. Ct. 1718 (2022), which
narrowed Martinez’s scope. In Ramirez, the Court held “that, under § 2254(e)(2), a federal
39
habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the
state-court record based on ineffective assistance of state post conviction counsel.” Id. at 1734.
Instead, “a federal court may order an evidentiary hearing or otherwise expand the state-court
record only if the prisoner can satisfy § 2254(e)(2)’s stringent requirements.” Id. at 1735.
Under Section 2254(e)(2), where the petitioner has “failed to develop the factual basis of
a claim in state court proceedings, a federal [habeas] court may hold an evidentiary hearing on the
claim only if the claim relies on (1) a ‘new’ and ‘previously unavailable’ ‘rule of constitutional
law’ made retroactively applicable by [the Supreme] Court, or (2) ‘a factual predicate that could
not have been previously discovered through the exercise of due diligence.’” Ramirez, 142 S. Ct.
at 1734 (quoting §§ 2254(e)(2)(A)(i), (ii)). The petitioner must then “show that further fact
finding would demonstrate, ‘by clear and convincing evidence,’ that ‘no reasonable fact finder’
would have convicted him of the crime charged.” Id. (quoting § 2254(e)(2)(B)). Granger fails
to show specifically that his new evidence comports with the requirements of Section 2254(e)(2),
as required by Ramirez.9
E.
New Evidence under Section 2254(d)(1)
The “AEDPA also restricts the ability of a federal habeas court to develop and consider
new evidence.”
Shoop v. Twyford, 142 S. Ct. 2037, 2043 (2022).
“Review of factual
determinations under § 2254(d)(2) is expressly limited to ‘the evidence presented in the State court
9
In seeming contrast to the holding in Ramirez and Cole v. Lumpkin, No. 21-70011, 2022 WL 3710723 (5th
Cir. Aug. 26, 2022), regarding new evidence presented in a procedurally defaulted IATC claim, the Fifth
Circuit in Mullis v. Lumpkin, 47 F.4th 380, 393–95 (5th Cir. 2022) acknowledged the applicability of
Ramirez’s holding to Mullis’s new evidence regarding his IATC claims but still granted COA to the questions
of (1) whether Mullis’s state habeas counsel rendered inadequate assistance by conceding that Mullis was
competent to waive review of his claims on state habeas review; (2) whether the court could reach that
conclusion based on evidence consistent with the holding in Ramirez; and (3) if Mullis’s state habeas counsel
rendered inadequate assistance, whether the inadequate assistance was a cause external to Mullis. Here,
Mullis’s and Granger’s fact patterns are distinguishable from each other in that Mullis repeatedly waived his
right to appellate and habeas review of his IATC mitigation claims because of mental illness issues.
40
proceeding.’” Id. at 2043–44. “[R]eview under § 2254(d)(1) is [also] limited to the record that
was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181.
As such, “evidence later introduced in federal court is irrelevant.” Id. at 184. Only in certain,
narrow circumstances may a habeas petitioner present evidence that was not part of the state-court
record. Shoop, 142 S. Ct. at 2044. “Thus, although state prisoners may occasionally submit new
evidence in federal court, [the] ‘AEDPA’s statutory scheme is designed to strongly discourage
them from doing so.” Id. (quoting Pinholster, 563 U.S. at 186).
“[I]f § 2254(e)(2) applies and the [petitioner] cannot meet the statute’s standards for
admitting new merits evidence, it serves no purpose to develop such evidence just to assess cause
and prejudice.” Id. at 2046 (citing Ramirez, 142 S. Ct. at 1738 (“[W]hen a federal habeas court
. . . admits or reviews new evidence for any purpose, it may not consider that evidence on the
merits of a negligent prisoner’s defaulted claim unless the exceptions in § 2254(e)(2) are
satisfied.”)).
Granger proffers new evidence and argument in support of his various unexhausted,
procedurally defaulted claims. He also presents new evidence in support of his exhausted claims.
The court will determine for each claim whether this new evidence may be considered within the
applicable statutory and case law framework.
VI.
Discussion and Analysis
A.
Claim One (IATC): Trial counsels’ conflicting loyalties actually affected their
performance at both phases of trial, and the cumulative effect of their deficient
performance prejudiced the defense at both phases of trial, depriving Granger of
his Sixth Amendment rights.
Granger’s first ineffective assistance of trial counsel (“IATC” or “IAC”) claim speculates
that his trial defense team, Makin, Cribbs, and Joel Vasquez (“Vasquez”), were conflicted because
41
the shooting of Sebolt occurred in front of the Jefferson County Courthouse where they, other
attorneys, or other persons they knew sometimes practiced or worked. In addition, Granger
speculates that Makin was conflicted because Makin’s daughter worked in the Clerk’s Office in
the courthouse. He does not offer any facts or statements from counsel, however, that establish
any such conflict existed regarding their loyalties. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th
Cir.) (holding that mere speculation and conjecture cannot establish the prejudice prong of
Strickland and conclusory allegations are not sufficient to obtain habeas relief), cert. denied, 506
U.S. 829 (1992); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (same).
The Director contends that Granger’s claim is procedurally barred and that he fails to
excuse the default of his claim under Martinez. (#53 at 39–53). The Director further asserts that
Granger’s new evidence cannot be considered. He states, in the alternative, that Granger’s claim
is without merit and should be denied. (#53 at 39).
Granger contends his trial attorneys suffered from a conflict of self-interest. See Beets v.
Scott, 65 F.3d 1258, 1278 (5th Cir. 1995) (explaining the difference between conflict of interest
in the multiple representation context and the conflict of self-interest context, and the standards
applicable to each), cert. denied, 517 U.S. 1252 (1996).10 Under Beets, a defendant claiming that
his attorney has a conflict of interest must show a reasonable probability that the conflict
“prejudiced the defense, undermining the reliability of the proceeding.” Beets, 65 F.3d at 1273.
Other than his unadorned statement, Granger does not provide any facts or statements that
10
Here, Granger is not asserting that there was a conflict of interest because counsel were representing multiple
clients in the same proceeding. See Beets, 65 F.3d at 1266. The Fifth Circuit held in Beets that Cuyler v.
Sullivan, 446 U.S. 335 (1980), applies only when counsel is representing multiple clients in the same
proceeding. Beets, 65 F.3d at 1266 (“Neither Cuyler nor its progeny strayed beyond the ethical problems
of multiple representation. One cannot read Cuyler to analyze conflicts of interests in a context broader than
that of multiple client representation.”).
42
reasonably show that any of his trial counsel suffered from a conflict of loyalty or self-interest.
Taking Granger’s rationale to its logical conclusion, no attorney who had practiced in the Jefferson
County courthouse would have been able to represent him because they, too, would have a conflict
of self-interest.
In all other contexts besides multiple representation conflicts, the Fifth Circuit explained
that the Strickland framework applies. Beets, 65 F.3d at 1260 (“Strickland more appropriately
gauges an attorney’s conflict of interest that springs not from multiple client representation but
from a conflict between the attorney’s personal interest and that of his client.”). Strickland applies
in the instant case. Contrary to Granger’s claims of self-interest or disloyalty, “Strickland . . .
calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s
subjective state of mind.” See Richter, 562 U.S. at 110. Granger’s conclusory statements of
disloyalty or self-interest are not sufficient to establish a per se claim for ineffective assistance of
counsel. He must establish that both deficient performance and prejudice exist. Strickland, 466
U.S. at 687.
Granger’s first IAC claim is essentially a cumulative error claim. The thirteen issues
below are similar or the same as Granger’s Claims 2–8, 11–12, and 16. As a result of his defense
team’s alleged conflict of self-interest, Granger asserts that his defense team:
(1) retained an investigator whose son was one of the State’s witnesses, and who,
as the recently retired Chief of the Beaumont Police, was the former boss of many
of the other witnesses;
(2) secured the appointment of a psychiatrist who already served as the court’s
competency expert and had formed the opinion that Granger was not psychotic and
could control his behavior;
(3) allowed the seating of two jurors who were victims of childhood sexual abuse
and/or hostage-taking and a third juror who had been close to an elderly woman
who was murdered;
43
(4) did not object when the prosecution selected a jury of eleven white jurors and
one black juror who could vote for death;
(5) called witnesses who gave extremely harmful testimony, sometimes elicited by
the defense on direct examination;
(6) presented a ballistics expert who was the only witness to opine that the bullets
that killed the victim, Sebolt, came from the location from which their client was
firing, contradicting Granger’s testimony;
(7) elicited testimony from seven different witnesses that the “felony” for which
Granger was on trial at the time of the shooting was the sexual assault of his
daughter;
(8) failed to object to the State’s admission of certain prior bad acts and
impeachment evidence on cross-examination despite having won pretrial motions
precluding the same;
(9) during the punishment phase, the defense team curtailed the mitigation
specialist’s investigation, ignored the psychologist’s “advice” that Granger had
brain damage, and relied on Granger to describe his background and functioning;
(10) failed to reveal testing of Granger’s brain damage to the psychiatrist so that
the psychiatrist would reassess his opinions of Granger;
(11) failed to prepare the psychiatrist to testify during the punishment phase and
failed to learn his opinions regarding future dangerousness of Granger;
(12) called punishment phase witnesses, including the pastor, who gave
dramatically damaging testimony regarding Granger; and
(13) during closing argument, neither defense counsel explicitly asked the jury to
impose a life sentence.
As a threshold matter, the court must determine whether this issue was exhausted or
procedurally defaulted. As discussed above, a federal court may not grant habeas relief unless it
appears that the applicant has exhausted the available remedies in the state courts. See 28 U.S.C.
§ 2254(b)(1)(A); Richter, 562 U.S. at 103. When a petitioner fails to raise a claim properly in
state court, he “has deprived the state courts of an opportunity to address those claims in the first
instance.” Coleman, 501 U.S. at 732. Accordingly, preventing review of claims decided on state
44
law grounds “ensures that the States’ interest in correcting their own mistakes is respected in all
federal habeas cases.” Id. Federal review is precluded “whether the state law ground is
substantive or procedural.” Id. at 729.
A state-law procedural bar is adequate to preclude federal consideration if it is “firmly
established and regularly followed.” Lee v. Kemna, 534 U.S. 362, 885 (2002) (quoting James v.
Kentucky, 466 U.S. 341, 348 (1984)). The discretionary nature of such a bar does not make it any
less “adequate” for a “discretionary rule can be ‘firmly established’ and ‘regularly
followed’—even if the appropriate exercise of discretion may permit consideration of a federal
claim in some cases but not others.” Beard v. Kindler, 558 U.S. 53, 60–61 (2009) (citation
omitted). Those situations where a state-law ground is found inadequate are but a “small category
of cases.” Kemna, 534 U.S. at 381.
Here, Granger requested a stay to return to state court and fully exhaust this claim. (#22).
This court recognized the claim was unexhausted when it granted Granger’s request. (#34).
Granger presented this claim with its thirteen subparts in his subsequent state habeas application,
but the TCCA dismissed the subsequent application as an abuse of the writ without reaching the
merits. Ex parte Granger II, 2020 WL 915434, at *1. A federal claim is procedurally defaulted
and barred from federal habeas review when a state court’s rejection of it rests on “an independent
and adequate state procedural rule.” Coleman, 501 U.S. at 750. The Texas abuse-of-the-writ bar
is adequate, see Hughes, 530 F.3d at 342 (“This court has held that, since 1994, the Texas abuse
of the writ doctrine has been consistently applied as a procedural bar.”), and independent of
federal law. See Balentine v. Thaler, 626 F.3d 842, 854–57 (5th Cir. 2010) (holding that a
“silent[]” dismissal of a mitigation-ineffectiveness claim pursuant to the abuse-of-the-writ statute
45
was independent of federal law), cert. denied, 564 U.S. 1006 (2011). In Hughes, the Fifth Circuit
further explained:
No application or interpretation of federal law is required to determine whether a
claim has, or could have, been presented in a previous habeas application. The
[TCCA] did not need to consider or decide the merits of [a petitioner’s]
constitutional claims in reaching its decision to dismiss those claims as an abuse of
the writ pursuant to Article 11.071, Section 5. Furthermore, there is nothing in its
perfunctory dismissal of the claims that suggests that it actually considered or ruled
on the merits. Accordingly, its decision was independent of federal law for
purposes of application of the procedural default doctrine.
530 F.3d at 342. The same is true for Granger. The TCCA’s decision was independent of federal
law for purposes of application of the procedural default doctrine. A procedural default on state
law grounds prevents federal merits adjudication.
To overcome a default under Martinez, as discussed above, a petitioner must demonstrate
that the underlying IATC claim “is a substantial one.” Martinez, 566 U.S. at 14 (citing Miller–El
v. Cockrell, 537 U.S. 322 (2003)).
“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.’” Id. (quoting Martinez, 566 U.S. at 15–16).
Granger’s Claim 1, with its thirteen (13) subparts, is barred from federal merits
adjudication on state law procedural grounds. The court notes that Claim 1, with its thirteen (13)
subparts, is intertwined with Claims 2–8, 11–12, and 16—also apparently procedurally defaulted
ineffective assistance of counsel claims (IAC or IATC). The court will consider whether each
subpart is substantial for Martinez purposes in connection with the corresponding claims below.
B.
Claim 2 (IATC): Trial counsel was ineffective at voir dire for failing to challenge
ten of the twelve seated jurors as biased or otherwise unqualified to serve.
46
Claim 1(3): Trial counsel “allowed the seating of two jurors who [had] been
victims of childhood sexual abuse and/or hostage-taking, and a third juror who had
been close to an elderly woman who was murdered.”
Granger contends that his trial counsel provided ineffective assistance of counsel by failing
to challenge ten of the twelve seated jurors as biased or otherwise unqualified to serve. (#44 at
45–65). He first raised this claim in his second or successive state habeas application. SHCR-02
at 38–56. Granger’s state habeas application, however, was dismissed as an abuse of the writ.
Ex parte Granger II, 2020 WL 915434, at *1. The Director states that Granger’s claim is
procedurally barred and not entitled to a merits review of the claim. (#53 at 53–90). The Director
further argues that even if the claim were not procedurally barred, the claim is without merit.
As the entirety of this claim is procedurally barred by the TCCA’s dismissal of his
successive state habeas application as an abuse of the writ, Granger must satisfy the requirements
of Martinez/Trevino to be entitled to a review of its merits. Granger asserts that trial counsel
provided ineffective assistance of counsel during the voir dire process. Granger’s Claim 2 is a
five-part IATC claim faulting trial counsel for failing to challenge:
(a) jurors Gillas, Rivera, and Beard for having experienced similar violence to that
presented [or discussed] in Granger’s trial;
(b) juror Shanks for not being life qualified;
(c) juror Korin for her bias against psychological mitigation evidence;
(d) five jurors who were empaneled despite their unknown ability to consider mitigating
evidence due to the State’s improper definition; Id. at 33–49; and
(e) for failing to exhaust peremptory challenges. Id. at 49.
“Voir dire plays a critical function in assuring the criminal defendant that his constitutional
right to an impartial jury will be honored.” Morgan v. Illinois, 504 U.S. 719, 729 (1992)
(brackets and citation omitted). “[N]o hard-and-fast formula dictates the necessary depth or
47
breadth of voir dire.” Skilling v. United States, 561 U.S. 358, 368 (2010). Because every
attorney will likely conduct voir dire in a different manner, the mere fact that another attorney
might have asked different questions will not support a finding of ineffective assistance. See
Garza, 738 F.3d at 676 (“Moreover, Garza cites no authority, and we have found none, that
would require a defense attorney to ask specific questions at voir dire.”). Rather, a defense
attorney’s method of voir dire is strategic and entitled to substantial deference, and thus “cannot
be the basis for a claim of ineffective assistance of counsel unless counsel’s tactics are shown to
be so ill chosen that it permeates the entire trial with obvious unfairness.” Teague v. Scott, 60
F.3d 1167, 1172 (5th Cir. 1995) (quotation and citation omitted).
In the context of determining whether the failure to strike an allegedly partial juror
constitutes deficient performance, a court must first evaluate whether the juror at issue was
actually biased. Virgil v. Dretke, 446 F.3d 598, 608–10 (5th Cir. 2006). The bias determination
centers on a juror’s own indication that he has “such fixed opinions that [he] could not judge
impartially [defendant’s] guilt.” Patton v. Yount, 467 U.S. 1025, 1035 (1984); Virgil, 446 F.3d
at 607 (holding that “the Supreme Court’s treatment of the right to an impartial jury is more than
a mere backdrop to our analysis; it is the lens through which we must examine counsel’s
performance in this case”) (citation omitted); see Seigfried v. Greer, 372 F. App’x 536, 539 (5th
Cir.) (per curiam), cert. denied, 562 U.S. 1066 (2010). In other words, a court must determine
“whether the juror’s views would ‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instruction and his oath.’” Wainwright v. Witt, 469 U.S. 412,
424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). Jurors satisfy the constitutional
mandate of impartiality if they can “lay aside [their] impression or opinion and render a verdict
based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961).
48
Based on the above criteria, the court’s review will center on whether any one of the jurors
identified by Granger was biased and, if so, whether additional questioning by counsel would have
made the juror subject to removal for cause. See Villanueva v. Stephens, 555 F. App’x 300, 306
(5th Cir. 2014) (holding that to establish deficient performance, a petitioner “must identify any
particular juror [who] was in fact prejudiced and must establish that had counsel’s questioning
focused on a specific area of bias, the bias would have been found”) (citation omitted).
1.
Alleged Biases Related to Similar Violent Experiences
Granger asserts that Jurors Gillas, Rivera, and Beard should have been struck for cause
because each had experienced, or had known people who had experienced, similar violence to that
discussed in Granger’s trial. (#44 at 47-52). Each of these jurors unequivocally stated that they
could fairly and impartially serve as jurors in Granger’s trial, and Granger offers only speculation
and skepticism that the jurors’ statements should not be believed. Absent a showing of bias,
counsel cannot be deficient for failing to challenge each of these three jurors.
a.
Juror Gillas
During voir dire, the State asked Juror Gillas about her questionnaire answer indicating that
she had been a victim of a crime, namely that she had been molested by her stepfather. 14 RR
136. Informing Gillas that there may be a similar allegation at trial, the State asked, “If it does
come up in this trial, will . . . what occurred with you, will it affect you in any way whatsoever?”
Id. Gillas responded, “Well, of course, it would affect me.” Id. The State then asked whether
“it would affect [her] decisions as to whether or not to find the defendant guilty or . . . how to
answer the questions?” Id. Gillas answered that her experience “will certainly have some
bearing” because she will have “personal knowledge of how that could affect an individual[.]”
Id. at 136–37.
49
Crucially, however, when the State asked whether Gillas could “follow her oath and not
allow [her] prior . . . life experiences to influence those decisions[,]” Gillas answered that her
decision would be “based on the evidence presented.” Id. at 137. When asked again whether her
“prior life experiences with [her] stepfather [would] cause an emotional response which would
make [her] make a decision on guilt or innocence or the answers to the questions based upon [her]
emotions and not upon the facts that were presented to” her, she responded, “Not likely.” Id. at
138. And when pressed on whether “it would not or it would,” she stated that she did not know
because “it’s really so theoretical at this point.” Id. at 138–39.
Granger faults counsel for not exploring Gillas’s prior experience because it gave her “an
extremely personal connection” to what would be the “focus of the defense presentation at the
guilt phase and the State’s presentation at the penalty phase.” (#44 at 48–49). As evidence of
Gillas’s actual bias, Granger first points to Gillas’s affirmative answers to the State’s question of
whether her experiences would affect her “in any way whatsoever.” (Id. at 48). Nonetheless,
given the context of this expansive question, i.e., whether Gillas could completely disassociate
herself from her prior life experience, her responses indicating that “of course it would affect her”
and that “it would have some bearing” are entirely unremarkable.
The Constitution does not mandate that jurors promise to firewall their life experiences
completely before serving. See Virgil, 446 F.3d at 609. “Merely expressing that a life experience
shades one’s view does not equate to bias.” White v. Quarterman, 275 F. App’x 380, 383 (5th
Cir.) (per curiam), cert. denied, 555 U.S. 999 (2008). A defendant is not entitled to “blank slate”
jurors without any preconceived notions or opinions. Virgil, 446 F.3d at 609. Applying Virgil
is outcome determinative: Gillas was not required to affirm that her life experiences would have
no effect whatsoever on her deliberations. White, 275 F. App’x at 383. Given the context of the
50
State’s unanchored question, Gillas’s answers do not present a legal basis upon which trial counsel
could have challenged Gillas for cause.
Granger then complains about Gillas’s admission of some uncertainty when the State
pushed further. (#44 at 48–49); 14 RR 138–39. None of Gillas’s answers, however, are
unequivocal statements that she could not serve as a fair and impartial juror, nor do they even
suggest that her experience would affect her deliberations in this trial in anything but a
hypothetical sense, as she confirmed immediately after the above exchange.
14 RR 139
(volunteering that “it’s really so theoretical at this point” (emphasis added)).
Ambiguous statements are a far cry from the types of unequivocal statements necessary to
demonstrate bias and, in turn, to obligate counsel to ask more questions or otherwise challenge
the juror as biased. Compare Virgil,11 446 F.3d at 613 (“[Jurors] unequivocally expressed [that
they could not sit] as fair and impartial jurors.”), with Flores v. Davis, 734 F. App’x 278, 279
(5th Cir. 2018) (per curiam) (holding that statement that veniremember “th[ought] his past
experience as a crime victim ‘would affect [his] ability to be fair’ was an ‘ambiguous statement
. . . distinguishable from the responses deemed biased in Virgil’”), cert. denied, 139 S. Ct. 2671
(2019). In Torres v. Thaler, 395 F. App’x 101, 107–08 (5th Cir. 2010), cert. denied, 562 U.S.
1230 (2011), the Fifth Circuit found that Virgil did not control petitioner’s claims of juror bias
where, unlike Virgil, the juror’s “statements on the record during voir dire were vague,” and “did
not expressly indicate prejudice.” The juror merely stated that “he thought his experiences would
11
In Virgil, one prospective juror stated that “his relationship with law-enforcement officers would preclude
him from serving as an impartial juror,” while another stated that he could not be “fair and impartial” to the
defendant, in a case involving an assault on an elderly person, because his mother had been mugged. 446
F.3d at 609–10. The Fifth Circuit held that both jurors were actually biased where they had “unequivocally
expressed that they could not sit as fair and impartial jurors.” Id. at 613.
51
affect his impartiality” and he “would ‘probably’ be more for the State”; however, the juror
provided no statement “definitively show[ing] he would not be impartial.” In Seigfried, 372 F.
App’x at 539–40, the Fifth Circuit found no bias where a prospective juror answered: “I honestly
am not sure, but I think that I would... I really don’t know,” to the question of whether she would
have a hard time applying the law.
Ambiguous testimony is “not unusual on voir dire
examination.” Patton, 467 U.S. at 1025.
Similar to the juror in Seigfried, even if Gillas’s statements could be construed as “hint[ing]
at possible bias against [Granger], [Gillas] never explicitly stated that she could not be an impartial
juror.” 372 F. App’x at 540. Rather, Gillas affirmatively demonstrated her constitutional
impartiality. After Gillas expressed her difficulty with the theoretical nature of the proceedings
at that point, the State then described the process to her, during which she repeatedly and
unequivocally stated that she could follow the law. See, e.g., 14 RR 132 (stating she could follow
her oath to consider or weigh any testimony or evidence introduced at trial), 14 RR 139–40
(stating she could return a guilt-phase verdict depending on whether the State met its burden), 14
RR 141 (stating she can follow the range of punishment for a lesser-included offense), 14 RR 143
(stating she can follow the law regarding the presumption of innocence and the defendant’s right
not to testify), 14 RR 145–52 (stating she can answer special issues “depending upon the
evidence”). At the conclusion of the State’s explanation, Gillas was asked whether she “could
serve as a juror on this kind of case,” to which she definitively answered, “Yes, I can.” Id. at
152.
“[I]n cases in which potential jurors have disclosed grounds for possible bias”—which
Gillas did in both her questionnaire and her voir dire testimony—“but have stated that they could
be fair”—which Gillas repeatedly did during voir dire—the Fifth Circuit has “held that the
52
defendant was not denied an impartial jury.” Buckner v. Davis, 945 F.3d 907, 911 (5th Cir.
2019) (citing Green v. Quarterman, 213 F. App’x 279, 281 (5th Cir. 2007)), cert. denied, 140
S. Ct. 2832 (2020). Beyond rank speculation, (#44 at 49) (acknowledging Gillas said “she could
answer depending on the evidence” but that “she never backed off from the obvious: that the
abuse she suffered would affect her as a juror”), Granger offers no argument or evidence
suggesting that Gillas’s answers were false. See Patton, 467 U.S. at 1035 (determining bias
centers on a juror’s own indication that he has such fixed opinions that he could not be impartial);
see also Green, 213 F. App’x at 281 (“Concerning actual bias, Green offers no evidence
suggesting the jurors’ answers were false.”).
Granger implies that all sexual assault survivors are biased jurors in any prosecution that
involves such evidence, even when the juror has not confirmed such bias. (#44 at 48) (“Counsel
had no valid strategic reason to leave a childhood sexual abuse survivor to sit in judgment on a
client whose trial would spotlight charges of childhood sexual abuse.”). In Andrews v. Collins,
however, the Fifth Circuit recognized that “‘[t]he Supreme Court has never explicitly adopted or
rejected the doctrine of implied bias.’ Moreover, the Court has not looked favorably upon
attempts to impute bias to jurors.” 21 F.3d 612, 620 (5th Cir. 1994) (quoting Tinsley v. Borg,
895 F.2d 520, 527 (9th Cir. 1990), cert. denied, 498 U.S. 1091 (1991)), cert. denied, 513 U.S.
1114 (1995). The court will follow Andrews.12
12
The Fifth Circuit later held the opposite in Brooks v. Dretke, 444 F.3d 328, 329 (5th Cir. 2006); however,
Andrews is controlling. See Goodwin v. Johnson, 132 F.3d 162, 175–76 (5th Cir.1997) (noting longstanding
rule that no panel may overrule a decision made by a prior panel); see also Uranga v. Davis, 893 F.3d 282,
288 (5th Cir. 2018) (acknowledging tension between Brooks and Andrews but declining to resolve it), cert.
denied, 139 S. Ct. 1179 (2019). This court declines to create a new rule regarding implied bias—which
would be in violation of Teague v. Lane, 489 U.S. 288, 316 (1989) (holding that newly recognized rules of
criminal procedure do not apply retroactively on collateral review).
53
On these facts, Granger cannot establish that trial counsel was deficient for failing to
challenge Gillas for cause, because he has not identified a meritorious factual basis upon which
a challenge for cause would be sustained. Cf. Patton, 467 U.S. at 1036 (holding that juror bias
is a question of fact). Gillas’s comments do not constitute a definite expression of an inability to
be fair and impartial. The law does not require counsel to raise meritless legal arguments.
Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (“The law does not require counsel to raise
every available nonfrivolous defense.
Counsel also is not required to have a tactical
reason—above and beyond a reasonable appraisal of a claim’s dismal prospects for success—for
recommending that a weak claim be dropped altogether.” (internal citations omitted)); Clark v.
Collins, 19 F.3d 959, 966 (5th Cir.) (“Failure to raise meritless objections is not ineffective
lawyering; it is the very opposite.”), cert. denied, 513 U.S. 966 (1994).
Granger also has not shown counsel to be deficient for not questioning Gillas about her
experience or using a peremptory strike against her. (#44 at 49). The Fifth Circuit has made clear
that an “attorney’s actions during voir dire are considered to be a matter of trial strategy.”
Teague, 60 F.3d at 1172. Indeed, a reasonably effective defense attorney could justifiably
conclude both that Gillas was not actually biased and, further, that she would be favorable to the
defense. See Cordova v. Johnson, 993 F. Supp. 473, 530 (W.D. Tex. 1998) (“There is nothing
unreasonable or professionally deficient in a defense counsel’s informed decision to rely upon his
own reading of veniremembers’ verbal answers, body language, and overall demeanor during the
prosecution’s voir dire examination.” (citing Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir.
1989), cert. denied, 494 U.S. 1012 (1990)).
54
Absent record evidence of Gillas’s unequivocal and disqualifying bias toward Granger,
counsel was left with strategic decisions, and despite Granger’s protestations to the contrary (#44
at 49), there is no absolute rule that an attorney is always required to exercise a strike in this
circumstance. See Mass v. Quarterman, 446 F. Supp. 2d 671, 704 (W.D. Tex. 2006) (“The
informed exercise of peremptory challenges involves consideration of myriad factors, including
a trial counsel’s assessment of the critical factual disputes which the jury must resolve, the
likelihood individual veniremembers’ life experiences and non-disqualifying biases will cause them
to be favorably or unfavorably disposed toward a particular side, and similar factors. . . . By its
nature, jury selection is a highly intuitive process.”); cf. Strickland, 466 U.S. at 689 (“Any such
set of rules would interfere with the constitutionally protected independence of counsel and restrict
the wide latitude counsel must have in making tactical decisions.”).
There is no rule that defense counsel “must ask questions at all,” particularly where, as
here, the State ably and thoroughly examined the nature of any alleged bias. Battaglia v.
Stephens, 621 F. App’x 781, 785 (5th Cir. 2015) (per curiam), cert. denied, 577 U.S. 1071
(2016); Garza, 738 F.3d at 676 (noting petitioner cited to no authority “that would require a
defense attorney to ask specific questions at voir dire” and that, where the State asked extensive
questions regarding venire’s views on the death penalty, courts must “consider the full scope of
the questions asked and answers given at voir dire to meaningfully evaluate the adequacy of trial
counsel’s attempts to identify juror bias”). Granger fails to overcome the presumption that
counsel’s decision not to challenge or strike Gillas fell within the broad range of objectively
reasonable professional discretion. See Strickland, 466 U.S. at 690.
55
Granger, moreover, fails to establish any prejudice. Granger invokes Virgil, suggesting
that the court “must conclude” that Gillas’s presence on the jury necessarily rendered the verdict
fundamentally “unreliable because of a breakdown in the adversarial process.” (#44 at 47)
(quoting Virgil, 446 F.3d at 613). Gillas, however, never unequivocally expressed a belief that
she could not be fair and impartial. Granger, therefore, cannot invoke Virgil’s “presumption” of
unreliability. See 446 F.3d at 612–13; see also Strickland, 466 U.S. at 693 (“[N]ot every error
that conceivably could have influenced the outcome undermines the reliability of the result of the
proceeding.”). Because Virgil’s presumption of unreliability does not apply, Granger’s effort to
demonstrate Strickland prejudice falters, as he cites no other competent evidence to support a
finding that Gillas’s presence on the jury improperly affected the outcome with regard to guilt or
punishment. His mere speculation can never entitle him to relief. Bradford, 953 F.2d at 1012
(holding that mere speculation and conjecture cannot establish the prejudice prong of Strickland
and conclusory allegations are not sufficient to obtain habeas relief); Koch, 907 F.2d at 530
(same). Thus, Granger’s claim regarding Juror Gillas fails even under de novo review.
b.
Juror Rivera
Granger cites two of Juror Rivera’s life experiences that he believes create a disqualifying
bias against him because they “echoed the kinds of traumas the State sought to establish through
the trial testimony.” (#44 at 50). First, Rivera testified that when she was twelve years old, she
and two friends “went hitchhiking.” The three girls were picked up by two men in a vehicle, after
which she witnessed one of the men sexually assault one friend in the front seat while Rivera and
the other friend were held at gunpoint in the back seat. 15 RR 136. Rivera was able to escape
and was not herself a victim of sexual assault. Id. Second, Rivera was working as an assistant
56
manager at Domino’s Pizza when she was robbed at gunpoint by a former employee who had
recently been fired. Id. at 137.
Granger concedes (#44 at 50), however, that Rivera affirmatively and definitively averred
that the two experiences would have no impact on her deliberations as a juror:
Q.
Okay. All right. Are either one of those events that occurred to you gonna
affect you in this—
A.
No.
Q.
—particular case one way or the other? Okay.”
Q.
Okay. Anything else . . . that you can think of that would impact your
ability . . . to serve in this case?
A.
No . . . not that I can think of.
15 RR 137.
15 RR 137–38.
Q.
[A]ny prior experiences that you’ve had, whether good or bad, you need to
be able to set them aside and make your decision in this case based upon the
evidence that you hear from that stand . . . Can you do that, as well?
A.
Yes.
15 RR 139.
Rivera’s responses to the prosecutor’s other questions affirmatively demonstrated her
impartiality across a broad range of topics. See 15 RR 138–54 (affirming she would follow her
oath, can apply the full range of punishment, would recognize a defendant’s right not to testify and
the presumption of innocence, and would answer the special issues according to the evidence
presented). When addressing a different claim related to Juror Rivera on state habeas review, the
TCCA found Rivera “was able to render a verdict and answer the special issues according to the
57
law and evidence.” Ex parte Granger I, 2017 WL 3379285, at *5; cf. Patton, 467 U.S. at 1036
(holding that juror bias is a question of fact); Virgil, 446 F.3d at 610 n.52 (same).
On this record, Granger has provided the court with neither a factual basis to conclude that
Rivera had a disqualifying bias nor a legal basis upon which trial counsel might have challenged
Rivera for cause. See Buckner, 945 F.3d at 911 (“Texas courts have found that a juror who was
a victim of a similar crime but who credibly states he will not be affected by that fact is not
biased.”). Given this twin failing, trial counsel could not have been deficient, and the claim fails
for this reason alone.
Unable to demonstrate bias, Granger cannot show that counsel was deficient for failing to
challenge Rivera for cause, to exercise a peremptory strike against her, or to ask her more
questions about her life experiences. Consequently, Granger fails the Strickland test for prejudice,
too. First, Virgil’s unreliability presumption is unavailable because Rivera never unequivocally
expressed a belief that she could not be fair and impartial—rather she unequivocally expressed the
opposite. See Virgil, 446 F.3d at 613. Second, he cites no other competent evidence to support
a finding that Rivera’s presence improperly affected the outcome as to guilt or punishment. Third,
conclusory assertions about the existence of prejudice can never warrant relief. Bradford, 953
F.2d at 1012; Koch, 907 F.2d at 530. Hence, Granger’s claim regarding Juror Rivera fails on de
novo review.
c.
Juror Beard
Granger alleges that Juror Beard’s “personal and emotional connection to a recently
murdered elderly woman should have raised concerns about her ability to be objective as a juror
at Mr. Granger’s trial for the murder of elderly Minnie Sebolt.” (#44 at 50). During voir dire,
58
Granger’s counsel asked Beard about her statement in her questionnaire that she was “very
interested in a criminal case that involved [her] friend’s grandmother being murdered.” 10 RR
56. Counsel asked whether that “[w]ould affect [her] in any way[.]” Id. Beard began crying and
apologized, explaining that the murder had occurred a year and a half previously, but the case had
only recently closed. Id. at 56–57.
Counsel probed further, noting specifically that the evidence would likely show that
Granger’s victim was also an elderly lady. Id. When asked whether she would be “able to set that
completely out of [her] mind where [she] will not consider that if [she is] chosen on this jury,”
Beard responded, “I think so.” Id. at 57. She then noted that the murder was done in a “very
malicious” manner. Id. When asked once again about the effect it might have on her, Beard said
that she “think[s] it makes [her] more aware of the court system; but [she does not] think it will
affect [her] as far as being one-sided, if that’s what [counsel was] asking [her].” Id. Counsel
explained the necessity for the questions by stating: “you can’t hardly put somebody . . . on the
jury box that’s thinking about something else and relates [it] to this offense, cause you gotta be
clearheaded and mind on this offense alone when it takes place.” Beard signaled her full
understanding. Id. at 58. She also affirmed that she understood “the seriousness of this case and
where [the defense] was coming from,” could give everybody a fair trial, and could listen to all
the evidence. Id. at 59–60.
As with Juror Rivera, Granger disregards Beard’s clear statements that her experiences
would not affect her ability to base her verdict on the evidence, instead focusing on the fact that
she “broke down crying while [counsel] questioned her about this case[.]” (#44 at 52). Granger
argues that this fact, “coupled with her statements that the murder was ‘very malicious,’ had only
59
recently closed, and remained ‘fairly fresh’ in her mind, demonstrated her unfitness as a juror, or
at least justified the use of a peremptory challenge.” (Id.). Nevertheless, Beard’s unequivocal
statements that her experiences would not cause her to be “one-sided” are dispositive. See
Buckner, 945 F.3d at 911.
Beard’s emotional response about the death of her friend’s grandmother does not render
her statements about her impartiality untrue. See id. at 908 (juror admitting father’s conviction
for sexually assaulting stepsister “was an ‘emotional issue’ for him, but he repeatedly stated that
he could be fair and impartial”); see also White, 275 F. App’x at 383 (“Merely expressing that
a life experience shades one’s view does not equate to bias.”). At most, Beard’s statements could
be considered ambiguous, but again, that does not establish bias. Flores, 734 F. App’x at 279;
Seigfried, 372 F. App’x at 540. Considering that the above exchange occurred during defense
counsel’s questioning, Granger’s complaints that counsel should have asked more questions are
nothing but a matter of degree, which is not enough to establish a Strickland claim. Cf. Skinner
v. Quarterman, 576 F.3d 214, 220 (5th Cir. 2009) (“[W]e must be particularly wary of arguments
that essentially come down to a matter of degrees.” (citation omitted)), cert. denied, 559 U.S. 975
(2010); see Battaglia, 621 F. App’x at 786 (“Battaglia has not pointed to any cases establishing
that [a] greater level of specificity in voir dire questioning is required in order for counsel not to
be constitutionally deficient.”); but cf. Virgil, 446 F.3d at 604 (“At no point during voir dire did
counsel attempt to clarify, confirm, or rehabilitate this testimony.”). Granger fails to demonstrate
any resultant prejudice, given the vast difference between his case and Virgil and his mere
speculation about any other prejudicial effect. Bradford, 953 F.2d at 1012; Koch, 907 F.2d at
530.
60
Granger fails to demonstrate that Jurors Gillas, Rivera, and Beard “had such fixed opinions
that they could not judge impartially the guilt of the defendant.” Patton, 467 U.S. at 1035. The
testimony of all three of the prospective jurors generally indicated an ability to consider the
evidence and follow the law when making a determination on the defendant’s guilt and potential
punishment, and none of the three displayed a bias that would “prevent or substantially impair”
their performance as jurors, if chosen. Granger thus fails to establish that any of the three jurors
who experienced similar violence—Gillas, Rivera, or Beard—were actually biased, and his claim
is without merit on de novo review and insubstantial for the purposes of Martinez. Granger’s
claims as to Jurors Gillas, Rivera, and Beard are denied.
2.
Alleged Bias Related to Life Qualification
In challenging the fourth of the twelve seated jurors, Granger argues that Juror Shanks was
not “life qualified.” (#44 at 52–56). Granger opines that, through her belief that “victims deserve
the right to . . . live, just like the defendant wants to live,” 12 RR 25, Shanks indicated she would
automatically vote for the death penalty upon conviction, and “[d]espite thirty-seven pages of voir
dire questioning,” she “never stated clearly that she could vote for life in an appropriate case, and
trial counsel never asked her for an answer one way or the other.” (#44 at 53). Granger argues
this was ineffective because, under Texas law, “a capital juror must be willing to consider
imposing a life sentence on the basis of the mitigating evidence even after finding the defendant
guilty of capital murder[.]” (Id. at 52).
In his briefing, Granger admits that Shanks repeatedly stated that she could consider
mitigating evidence. (#44 at 53–54). Importantly, the State directly asked Shanks whether she
could answer the special issues, without any automatic answers:
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Q.
Okay. To qualify as a juror you have to have—right now as you sit
there, have no automatic answers to any of the questions or
verdict—any of those questions. And can you do that?
A.
Yes.
Q.
Once you hear the evidence, then you can make those answers; but
until you hear the evidence, you cannot answer those questions. Is
that correct?
A.
Yes.
12 RR 21–22. Moreover, defense counsel returned to Shanks’s questionnaire answer regarding
why she believed in the death penalty during his voir dire of her. In her questionnaire, Shanks
stated: “The reason I believe in the death penalty is because those victims deserve the right to live
just like the defendant wants to live.” 12 RR 25. Counsel stated that he “[knew] what [she] meant
here” but asking her to “expound a little bit.” Id. at 25. With some difficulty explaining herself,
Shanks said that she essentially meant that “the victim or victims [were] not here anymore to think
about” what they would do the rest of their lives. Id. at 25–26. Vasquez—one of Granger’s
counsel—later asked, “[I]f someone is convicted of a capital murder, they don’t get the death
penalty just like that (snapping fingers), do they?”
Id. at 30.
Shanks’s answer was an
unambiguous, “No.” Id.
Despite Shanks’s unequivocal answer, Granger asserts that Shanks could not consider
mitigation or would otherwise automatically vote for the death penalty upon Granger’s conviction.
Granger’s assertions are wholly unsupported by the record. Both trial counsel and the State
expressly told Shanks that there could be no automatic answers to the special issues, and Shanks
expressed her understanding and agreement. 12 RR 18-28. At no point did Shanks indicate that
she could not consider mitigating factors and would automatically vote in favor of death. Granger
62
wholly fails to show any inadequacy in trial counsel’s voir dire, especially given that counsel
expressly asked her about her juror questionnaire answer, or any bias on Shanks’s part that would
warrant a challenge for cause or peremptory strike. See Morgan, 504 U.S. at 729 (“The
Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be
afforded an impartial jury.”).
Granger’s “argument that trial counsel should have asked [more or other] specific questions
at voir dire amounts to a disagreement about trial strategy. However, under Strickland, [the court]
usually defers to counsel’s trial strategy.” Ramirez v. Stephens, 641 F. App’x 312, 323–24 (5th
Cir.) (finding that, although trial counsel did not ask the specific questions regarding lifequalification that Ramirez wishes he had, Ramirez failed to show that counsel’s tactic of using the
questionnaires for that purpose was “so ill chosen that it permeate[d] the entire trial with obvious
unfairness” (quoting Teague, 60 F.3d at 1172)), cert. denied, 137 S. Ct. 279 (2016); Battaglia,
621 F. App’x at 786 (noting petitioner failed to proffer any cases requiring a greater level of
specificity in voir dire questioning); Garza, 738 F.3d at 676 (finding no authority requiring
counsel to ask specific questions at voir dire). Granger does not demonstrate any deficiency in
trial counsels’ performance.
Granger also fails to prove prejudice. He speculates that Shanks would automatically
answer the special issues in light of her beliefs regarding the death penalty. Granger points to no
evidence in the record that Shanks could not consider mitigating factors or would otherwise
consider a vote for death automatically upon her finding of Granger’s guilt. Absent this showing,
there can be no prejudice. Granger does not establish that Shanks was actually biased. His claim
63
is without merit on de novo review and is insubstantial for purposes of Martinez. Granger’s claim
as to Juror Shanks is denied.
3.
Alleged Bias Related to Psychological Evidence
Turning to his fifth allegation of juror bias, Granger asserts that trial counsel was
ineffective for failing to challenge for cause or strike Juror Korin. (#44 at 56–58). Granger
argues that it is not enough simply to allow the presentation of mitigating evidence; instead, a juror
must be able to give weight to such evidence. (Id. at 56) (citing Abdul-Kabir v. Quarterman, 550
U.S. 233, 246, 260 (2007); Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (Penry I)).
Granger alleges that Korin demonstrated an “inability to take psychological evidence into
account, stating that psychological and psychiatric testimony ‘isn’t evidence.’” (#44 at 56, quoting
13 RR 203). Granger alleges that, though defense counsel “noticed Mariah Korin’s troubling
views on her juror questionnaire,” he “allowed his questioning to be quickly derailed by
prosecutor Shettle and did not adequately pursue the issue or move to strike Ms. Korin for cause.”
(Id.). As with the prior four jurors, Granger fails to demonstrate any bias, deficiency, or
prejudice.
During voir dire, Korin and defense counsel had the following exchange:
Q.
I see where you answered about the psychiatric and psychological
testimony: It’s interesting to know the information but—from a
professional, but it isn’t evidence. Why did you write that?
A.
(No response).
Q.
What is it that makes you think it’s not evidence if—if you hear it
from the witness stand?
A.
Well, it’s not like—they weren’t inside his head type of thing. It’s
not—they can’t—I don’t know.
64
Q.
No, they’re not inside his head but it could be—you could hear from
some experts from the State, from the defense, about psychology or
psychiatry and they would be—if you hear from them, they’re
deemed experts and the judge decides if that evidence is admissible.
13 RR 203–04. At that point, the State objected to the use of the phrase “deemed experts,”
arguing that Texas law no longer requires a judge to prejudge whether a given witness is an
“expert” and an expert’s credibility is left to the factfinder. Id. at 204. Counsel then rephrased
his question:
Q.
If you hear what is considered expert testimony and it’s admissible
evidence and the jurors hear it, it is something you—to be on the
jury, it is something you would have to consider. You wouldn’t have
to believe all of it. You wouldn’t have to—it’s just something you’d
have to consider, all 12 of you. Can you do that?
A.
Yes.
3 RR 204–05 (emphasis added). Korin again later confirmed that she could consider the testimony
of any witness from whom she would hear. Id. at 207.
As the above exchange makes clear, at no point did Korin state that she could not consider
psychological evidence in mitigation, and Granger’s claim therefore fails. At most, Korin
expressed some skepticism toward psychological evidence, but as the Fifth Circuit made plain in
Virgil, giving greater or lesser weight to some testimony is not bias. 446 F.3d at 608–09; Davis
v. Thaler, 511 F. App’x 327, 332 (5th Cir. 2013) (per curiam) (“[T]he statements Davis objects
to merely reveal an inclination to give greater weight to certain testimony; they provide no
indication that the jurors harbored any prejudice against the defendant or in favor of the State or
the victim or would otherwise be prevented from impartially determining Davis’s guilt or
innocence.”). Indeed, Korin’s response that psychiatrists are not “inside” the defendant’s head
suggests that she could question such testimony’s credibility, not refuse to consider it at all. Cf.
65
Virgil, 446 F.3d at 609 (jurors not required to “come ready to serve with a blank slate, without
preconception or understanding of the real world”); see Jones v. State, 982 S.W.2d 386, 389
(Tex. Crim. App. 1998) (“We could not have meant that jurors must be completely impartial or
free of any trace of skepticism toward any category of witness. Complete impartiality cannot be
realized as long as human beings are called upon to be jurors.”).
Merely because her expression of doubt was inartful or ineloquent does not mean it that it
was biased. As the Supreme Court has noted:
Prospective jurors represent a cross section of the community, and their education and
experience vary widely. Also, unlike witnesses, prospective jurors have had no
briefing by lawyers prior to taking the stand. Jurors thus cannot be expected
invariably to express themselves carefully or even consistently. Every trial judge
understands this, and under our system it is that judge who is best situated to
determine competency to serve impartially.
Patton, 467 U.S. at 1039. Attorneys, too, understand that jurors may not express themselves
well, and it is certainly reasonable that defense counsel did not deem Korin’s answer on her
questionnaire or on voir dire as a pronouncement that she had determined, under the law, that
psychological testimony can never be evidence that can be considered in mitigation. Given her
unequivocal answer that she could consider such expert testimony, 13 RR 205, Granger fails to
demonstrate any deficient performance by counsel. In the absence of deficient performance,
Granger also fails to show prejudice. See Virgil, 446 F.3d at 611 (“Since we do not find counsel’s
performance with respect to [the jurors who expressed skepticism toward witnesses with prior
offenses] to be constitutionally deficient, our inquiry is only whether Virgil’s defense was
prejudiced by counsel’s failure to challenge for cause” actually biased jurors). Granger’s claim
is without merit on de novo review and is insubstantial for purposes of Martinez. Relief is denied
on Granger’s claim as to Juror Korin.
66
4.
Alleged Bias Related to Mitigating Evidence
Granger next asserts that the impartiality of five jurors—Vanderslice, Junemann, Loser,
Hamilton, and O’Neil—are in question because of an allegedly improper definition provided by
the State during its voir dire. Granger claims that the five jurors served on his jury without a
constitutionally adequate understanding of mitigating evidence. (#44 at 58–63). Granger argues
that the State “misinformed” the jurors in two primary respects:
it “narrowly describe[d mitigating] evidence as ‘favorable’ information about the
defendant, rather than acknowledging the full range of information that the jurors
must consider” (#44 at 58); and
it “misled” jurors by stating that they could base their sentencing decision “entirely
on the circumstances of the crime.” (id. at 46).
Granger alleges that trial counsels’ failure to object to these alleged misstatements of law
“prevented trial counsel from ensuring Mr. Granger would be judged by a life-qualified and
unbiased jury.” (Id. at 59). Granger points to the voir dire of five jurors—Vanderslice,
Junemann, Loser, Hamilton, and O’Neil—as evidence of both the State’s misstatements and
alleged juror bias. (Id. at 59–63). Granger, however, fails to show Strickland ineffectiveness in
any portion of his claim; thus, he fails to show that he is entitled to relief.
a.
Juror Vanderslice
Granger complains that the State “repeatedly mispresented” mitigation as something
“favorable” to the defendant and “further obfuscated the meaning of mitigation” by explaining that
a bad childhood could be considered both mitigating or aggravating. (#44 at 59). Granger’s
selective parsing of the record does not establish a constitutional violation.
The precise nature of Granger’s complaint is unclear. He explicitly refers to a “bad
childhood” as the kind of “full range” mitigation evidence that may not be “favorable” in the
67
typical sense but must be considered nonetheless. (See id. at 58) (citing Porter v. McCollum, 558
U.S. 30, 38 (2009); Parker v. Dugger, 498 U.S. 308, 314 (1991); Penry I, 492 U.S. at 340; and
Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) to establish that evidence of defendant’s abusive,
difficult, or turbulent childhood and family history can be mitigating). He faults the State for
allegedly defining mitigation in a way that excludes the type of “double-edged” evidence that may
not be on-its-face favorable, and in the same breath acknowledging the State offered examples of,
and discussed, that kind of evidence.
The State cited to a bad childhood as an example of mitigation evidence during
Vanderslice’s individual voir dire, 8 RR 147–48, but during general voir dire, the State discussed
other types of evidence a juror “may hear in the punishment phase of the trial to help you answer”
the mitigation question. 7 RR 104–05. For example, when discussing the insanity defense, the
State noted that a juror “may hear evidence of [the defendant’s] mental state, [or] whatever kind
of mental problems he may or may not have” during punishment. Id. (see #44 at 58). The State
also said the jury might “hear evidence of somebody who’s not necessarily [intellectually disabled]
but may have a low IQ,” and some people “may consider that to be mitigating; but other people
may think that people with . . . low IQ are really dangerous folks, if they’re predisposed to
commit crimes.” 7 RR 105; (see #44 at 58). The key, the State emphasized, is that “what is a
mitigating circumstance to one person is an aggravating circumstance for somebody else.” 7 RR
105.
Granger’s argument appears to focus on the State’s use of the word “favorable.” (See #44
at 58–63). Nonetheless, if a potential juror found certain evidence sufficiently mitigating, that
would obviously be favorable to Granger in the most significant sense, resulting in a life sentence
68
rather than death. See, e.g., 7 RR 99–100 (prosecutor Shettle describing mitigating evidence as
“anything you’ve learned about this criminal defendant . . . that would convince you that he
should get life rather than death” and saying “[t]here may be some evidence in his favor”). That
is common sense, not an unconstitutional narrowing of the nature of mitigating evidence. Nothing
the prosecution said to Vanderslice limited her ability to consider the full range of potentially
mitigating evidence. Thus, there was nothing to which counsel could object, much less anything
that could be used to challenge Vanderslice as a juror. See Clark, 19 F.3d at 966 (failure to raise
meritless objection is not deficient).
Moreover, even if the prosecutor’s comments narrowed the definition of mitigating
evidence, Granger cannot prove prejudice. The court’s jury instructions provided Vanderslice the
correct—and Supreme Court endorsed—definition of mitigation. See 29 RR 6–8; Penry v.
Johnson, 532 U.S. 782, 803 (2001) (Penry II) (praising “the brevity and clarity of [Texas’s
mitigation] instruction”); Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.) (Texas’s mitigation
instruction encompasses “virtually any mitigating evidence” (brackets omitted)), cert. denied, 534
U.S. 945 (2001). Jurors are “presumed to follow [their] instructions.” Weeks v. Angelone, 528
U.S. 225, 234 (2000).
A passing comment during voir dire, weeks before punishment deliberations began, would
not have undermined Vanderslice’s ability to understand and follow the state judge’s clear
instructions regarding mitigating evidence. See Penry II, 532 U.S. at 801 (“[W]e are skeptical
that, by the time their penalty phase deliberations began, the jurors would have remembered the
explanations given during voir dire, much less taken them as a binding statement of the law.”);
Ramey v. Davis, 314 F. Supp. 3d 785, 813 (S.D. Tex. 2018) (“Even if the prosecution misstated
69
the law, a great deal of time had passed and much had happened before the jury deliberated
Ramey’s punishment. Jurors had a full ability to give effect to his evidence under the mitigation
special issue which ameliorated any harm from the prosecutor’s misstatement.”). Granger’s claim
is therefore without merit.
b.
Juror Junemann
Granger complains that the State “never explained [to Junemann] that mitigating evidence
does not need to prove someone’s value to society in order to serve as mitigation” and “further
misled” her by stating that her decision on sentencing could be based “entirely on the
circumstances of the offense.” (#44 at 60).
In her juror questionnaire, Junemann indicated that she believed in the death penalty
because it “can be warranted if the . . . individual proves to be a threat to society with no potential
value to society.” 9 RR 67. Though Junemann emphasized during voir dire that her view did not
come from any source and was just her opinion, see id., both the State and defense counsel
complimented her on this opinion because it almost tracked the law. See id. at 68 (“Q. Strangely
enough, it’s—almost tracks what the law is.”), 87 (saying that the first half of her statement “kind
of might deal with that first question” and the second “kind of gets into that Question No. 2 and
you kind of wonder, well, why didn’t the legislature just say that in those easy terms rather than
go through that thing”). Neither of these exchanges occurred during a discussion of the mitigation
question specifically, and a juror’s general opinion on the death penalty is in no way an indication
that she could not faithfully apply the law. See, e.g., Ramey, 314 F. Supp. 3d at 811 (noting that
even when juror said he “favored” the death penalty, “he clarified that he only meant that he
70
‘believed in it’ and his opinion on the death penalty would not affect his ability to consider the
evidence”).
Contrary to Granger’s claim that neither the State nor the defense ever “explained that
mitigating evidence does not need to prove someone’s value to society in order to serve as
mitigation,” (#44 at 60), both parties explained the mitigation special issue and Junemann
evidenced her understanding of it. See 9 RR 81–85 (State’s voir dire on mitigation), 93–94
(defense’s voir dire). Indeed, Junemann described mitigation as asking “whether or not the
sentence of death can be warranted, including—taking into account . . . the person’s background,
their history, their moral culpability or moral standings.” Id. at 81.
Junemann signaled her understanding that there were no automatic answers on this
question, id., and that a “yes” answer to the question would result in a life sentence, id. at 84.
She affirmed that she could answer the question either way depending on the evidence. Id. at 85.
She stated she could be fair to both parties, id., and that she “wouldn’t make a decision without
weighing the evidence.” Id. at 94. “Given the exhaustive questioning by [both sides], [Granger]’s
emphasis on one answer misrepresents trial counsel’s efforts and mischaracterizes the juror’s
ability to be impartial.” Ramey, 314 F. Supp. 3d at 811. That, despite the above, trial counsel
did not specifically ask whether Junemann now understood that “her beliefs deviated from the
law,” (#44 at 60), is not evidence of ineffectiveness. See Ramey, 314 F. Supp. 3d at 810 (“Not
every attorney will conduct voir dire in the same manner. The mere fact that another attorney
might have asked different questions will not support a finding of ineffective assistance.”). Thus,
there was nothing to which trial counsel should have objected or corrected.
71
Similarly, the State’s suggestion that the facts of the crime may be enough to answer the
special issues in such a way that a death sentence is imposed is a correct statement of the law. See
Miller v. Johnson, 200 F.3d 274, 286 (5th Cir.) (“Under Texas law, although a number of factors
may be considered in making the determination as to future dangerousness, the facts of the crime
alone, if severe enough, can be sufficient to support the affirmative finding to the special issue.”
(citing Vuong v. State, 830 S.W.2d 929, 935 (Tex. Crim. App. 1992)), cert. denied, 531 U.S. 849
(2000); cf. Wong v. Belmontes, 558 U.S. 15, 27–28 (2009) (“It is hard to imagine expert
testimony and additional facts about Belmontes’ difficult childhood outweighing the facts of
McConnell’s murder.”). The State’s suggestion that mitigating evidence might be outweighed by
the facts of the crime does not, as Granger seems to assert, suggest that the mitigating evidence
is not to be considered. See 9 RR 82 (State’s discussion of the mitigation special issue with the
jury).
Regardless, Granger fails to show any prejudice for the same reasons he failed to show
prejudice for juror Vanderslice. Even if there had been some misstatement of the law during voir
dire, “[t]he comments of the court and counsel during voir dire were surely a distant and
convoluted memory by the time the jurors began their deliberations on [Granger]’s sentence”
several weeks later. Penry II, 532 U.S. at 802. Also, the jury is presumed to have followed the
trial court’s accurate instructions. Weeks, 528 U.S. at 234. Granger has not shown Strickland
error with regard to Juror Junemann.
c.
Juror Loser
With respect to Juror Loser, Granger repeats the same complaint as to Juror
Vanderslice—that the State’s use of the word “favorable” limited the definition of mitigating
72
evidence. (#44 at 60–61). Granger faults counsel for not objecting to the State’s description or
failing to clarify the definition, which “allowed Mr. Loser to answer the questions on an
inaccurate basis.” (Id). This claim fails for the same reasons it fails as to Juror Vanderslice.
Namely, the State’s definition is correct, and there was, therefore, nothing to which to object or
to clarify. The State explained that mitigation requires one to “take a step back and look at the
whole picture.” 14 RR 182. The State also described “mitigating” as something that “lessens”
or “takes away” from “the bad you’ve heard” or something “that’s favorable to the defendant.”
Id. at 184.
During voir dire, trial counsel explained the mitigation question as it “is what [he’s] heard
called the mercy question. One person can decide to save his life.” Id. at 192. Granger’s
assertion that Loser made a decision based on anything other than the law he was charged to
follow is pure speculation. Granger, therefore, fails to show deficient performance. He also fails
to show prejudice given the amount of time that passed between any alleged incorrect statements
of the law and the jury’s ultimate deliberations regarding punishment. Hence, Granger has not
met his burden under Strickland.
d.
Juror Hamilton
Granger once again complains of the State’s use of the words “good” and “favorable”
during Juror Hamilton’s voir dire. (#44 at 61). The State’s definition of mitigation, however, did
not preclude the consideration of double-edged evidence. The State specifically instructed,
“[W]hat you decide is sufficiently good is up to Ms. Hamilton.” 8 RR 179. Defense counsel
expounded that mitigation is “[p]retty much whatever you think [it] is,” and it “can be anything.”
Id. at 187. Joking that he was giving “wild examples,” trial counsel provided: “Could be he was
73
a Boy Scout. Could be bad home life. Could be good cook. Could be bad cook. . . . Can mean
anything you want it to be.” Id. Granger’s wish that defense counsel had asked a specific
question in a specific way falls far short of demonstrating Strickland deficiency. Granger also fails
to prove prejudice for the reasons stated above.
e.
Juror O’Neil
Granger again complains that the State improperly suggested to Juror O’Neil that the
sentence can be entirely determined by the facts of the crime and that the State’s use of the word
“favorable” was incorrect. (#44 at 61–62). The former fails for the reasons stated in the
discussion of Juror Junemann, supra, and the latter fails for the reasons stated in the discussion
of Jurors Vanderslice, Loser, and Hamilton, supra. Because Granger fails to demonstrate
Strickland deficiency or prejudice, his claim challenging the jurors’ impartiality is denied.
5.
Failure to Exhaust Peremptory Strikes
Granger finally alleges that, because the first five jurors discussed above were biased or
unqualified in some fashion, counsel was ineffective for exhausting only twelve of his fifteen
peremptory strikes. (#44 at 63). Granger’s sole legal citation to support the proposition that
counsel can be ineffective for failing to exhaust peremptory strikes is Virgil. (Id.) (citing Virgil,
446 F.3d at 610). Virgil, however, stands only for the proposition that “unchallenged statements
during voir dire that [jurors] could not be ‘fair and impartial’ obligated Virgil’s counsel to use a
peremptory or for-cause challenge.” 446 F.3d at 610. As discussed above, Granger has not
demonstrated that any of the first five jurors—Gillas, Rivera, Beard, Shanks, or Korin—were
biased in any way, and, therefore, counsels’ failure to use the remaining three strikes on any of
them cannot be ineffective. The fact that counsel allowed those jurors to serve on the jury despite
74
having available strikes is evidence not of ineffectiveness, but of trial strategy. See Teague, 60
F.3d at 1172 (an “attorney’s actions during voir dire are considered to be a matter of trial
strategy”).
Granger does not demonstrate that a biased juror sat on his jury or that counsels’ strategy
during voir dire was unreasonable. Rather, Granger complains that trial counsel did not conduct
voir dire in a manner that Granger, in hindsight, would have preferred. “The Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citing Bell v. Cone, 535 U.S. 685, 702 (2002)).
Granger has not shown that trial counsel provided deficient performance or that actual prejudice
resulted from counsels’ performance during voir dire. Consequently, Granger fails to establish
ineffectiveness under Strickland in any portion of his Claim 2 or Claim 1(3).13 The claims lack
merit and, because the claims are “insubstantial,” the procedural-bar exception under Martinez
is unavailable. See Martinez, 566 U.S. at 14. Granger’s Claim 1(3) and Claim 2 are denied on
de novo review and are insubstantial under Martinez. These claims, therefore, are denied.
C.
Claim 3 (IATC/Batson): Trial counsels’ failure to raise an equal protection
challenge to the prosecutor’s racially disproportionate exercise of peremptory
challenges deprived Granger of the effective assistance of counsel.
Claim 1(4): Trial counsel “did not object when the prosecution selected a jury of
eleven white jurors and one black juror who could vote for death.”
In his third claim for relief, Granger suggests that trial counsel was constitutionally
deficient for failing to object to “the prosecutors’ discriminatory and disproportionate exercise of
their peremptory challenges” purportedly made in violation of Batson v. Kentucky, 476 U.S. 79,
13
Claim 1(3): Trial counsel “allowed the seating of two jurors who been victims of childhood sexual abuse
and/or hostage-taking, and a third juror who had been close to an elderly woman who was murdered.”
75
100 (1986). (#44 at 65). Granger also asserts that his state habeas counsel was deficient because
an ineffective assistance claim pertaining to Batson was not raised in his first state habeas
application. (Id. at 69). The Director responds that Granger’s claim is procedurally barred and
insubstantial for purposes of Martinez. (#53 at 90–100). In the alternative, the Director states that
the claim is without merit. (Id.)
In his five pages of argument regarding the lack of a Batson challenge, Granger provides
no particular details of his claim other than to assert that prosecutors had a strike rate of 57%, or
striking 4 out of 7 black veniremembers, and used 27% (4 out of 15) of their 15 peremptory
challenges for black veniremembers. (#44 at 65). Granger asserts that he can establish at a
hearing that a Batson objection would have been successful and that his counsel was therefore
ineffective.
1.
Granger is Not Entitled to a Hearing
Granger is not entitled to a hearing to establish his underlying Batson challenge, as Shinn
v. Ramirez forecloses this request. 142 S. Ct. at 1735. If a petitioner was rendered ineffective
assistance by state postconviction counsel and, thus, was unable to develop the state court record
on a claim of ineffective assistance of trial counsel, a federal habeas court is nevertheless barred
from “conduct[ing] an evidentiary hearing or otherwise consider[ing] evidence beyond the statecourt record” to review that claim even if the failure to bring the claim is excused. Id. at 1734.
Because there is no constitutional right to state postconviction counsel, “a state prisoner is
responsible for counsel’s negligent failure to develop the state postconviction record.” Id. at
1735. Although a petitioner “often need[s] ‘evidence outside the trial record’ to support [his] trialineffective-assistance claims,” id. at 1737 (citation omitted), he cannot develop that evidence in
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federal court if his postconviction counsel did not do so in the state court. Indeed, “when a federal
habeas court convenes an evidentiary hearing for any purpose, or otherwise admits or reviews new
evidence for any purpose, it may not consider that evidence on the merits of a negligent prisoner’s
defaulted claim unless the exceptions in § 2254(e)(2) are satisfied.” Id. at 1739 (emphasis added).
The upshot of Shinn v. Ramirez is that a federal habeas petitioner can bring an otherwise-defaulted
ineffective assistance of trial counsel claim in federal court, but he cannot develop evidence in
support of that claim.
Here, Granger did not establish any exception under Section 2254(e)(2) either by showing:
(1) “a ‘new’ and ‘previously unavailable’ ‘rule of constitutional law’ made retroactively applicable
by [the Supreme] Court;” or (2) “a factual predicate that could not have been previously
discovered through the exercise of due diligence.” Shoop, 142 S. Ct. at 2044 (quoting 28 U.S.C.
§ 2254(e)(2)(A)). Granger’s request for an evidentiary hearing regarding his IATC/Batson
challenge is denied.
2.
Granger’s Newly Presented Evidence Cannot be Considered
To support his IATC/Batson claim, Granger proffers what he says is the state judge’s list
of jurors generated on the first day of questioning. (A0676-81); see also (#44 at 65 n.3). He also
proffers what may be juror cards containing the jurors’ personal information, including their race.
(A0682-719). These items were not a part of the state habeas record below. Finally, he offers
a chart he compiled, aggregating the race of the questioned jurors as reflected in their juror cards.
(A0675). For the same reasons as stated above, Granger’s failure to make a showing under 28
U.S.C. § 2254(e)(2)(A) bars any consideration of this newly presented evidence.
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3.
Granger’s Claim is Procedurally Barred
Granger concedes that this claim was presented for the first time in Granger’s second-intime state habeas application, (#44 at 69), which was dismissed as an abuse of the writ. Ex parte
Granger II, 2020 WL 915434, at *1. In the absence of an exception being shown, an independent
and adequate state law ground bars federal merits review of this claim. While Granger raises the
specter of Martinez (#44 at 69), he fails to demonstrate a miscarriage of justice or the applicability
of an exception to his claim.
Granger also fails to satisfy Martinez for another reason: A Texas state habeas applicant
must demonstrate Strickland prejudice to obtain relief on an IATC-Batson claim. See Batiste v.
State, 888 S.W.2d 9, 15 (Tex. Crim. App. 1994) (“[W]e hold that the likelihood that failure of
counsel to ensure that racial discrimination did not take place in jury selection will render trial
unfair is not so great as to justify exempting ineffective counsel claims for lack of a Batson
objection from Strickland’s ‘prejudice’ prong.”). That is, state habeas counsel must establish
prejudice by showing that the seated jurors could not have “render[ed] a fair and impartial verdict
in the trial of a minority defendant.” Id.
Granger does not make that showing. Granger fails even to suggest that, as a result of trial
counsels’ failure to raise a Batson challenge, he was forced to accept jurors who were incapable
of acting impartially with respect to his race. (See generally #44 at 65–69). In his Claim 2,
supra, Granger argues that nearly all of the seated jurors were biased against him but none of the
supposed biases had any relationship to Granger’s race or the constitutional scope of the supposed
Batson violation.
78
Granger cannot establish Strickland prejudice with reference only to the racial composition
of his jury because doing so is a direct violation of Batson itself: “Race cannot be a proxy for
determining juror bias or competence. A person’s race simply is unrelated to his fitness as a
juror.” Powers v. Ohio, 499 U.S. 400, 410 (1991) (internal quotations marks and citations
omitted). Indeed, the TCCA has acknowledged the extreme difficulty that state habeas applicants
face when attempting to prove Strickland prejudice in this circumstance. See Batiste, 888 S.W.2d
at 16 (“A jury of any racial makeup is presumptively capable of providing the impartial tribunal
necessary to ensure proper functioning of the adversarial process.”).
While a properly preserved and presented Batson claim is treated as structural error on
direct appeal, the scope of an IATC-Batson claim is limited for good reason.14 Cf. Weaver v.
Massachusetts, 137 S. Ct. 1899, 1913 (2017) (“When a structural error is raised in the context
of an [IATC] claim, however, finality concerns are far more pronounced.”). Granger cannot
establish cause under Martinez because he fails to suggest a viable legal basis upon which state
habeas counsel could have established Strickland prejudice under Batiste. (See, e.g., #44 at 69)
(suggesting only that a fifty-seven percent strike rate “supported a viable Batson claim that”
should have been raised).
14
A structural error is one that “affect[s] the framework within which the trial proceeds,” as distinguished from
a lapse or flaw that is “simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310
(1991). Structural errors “trigger automatic reversal because they undermine the fairness of a criminal
proceeding as a whole.” United States v. Davila, 569 U.S. 597, 611 (2013). Structural errors are those that
are “intrinsically harmful” and “affect substantial rights.” Neder v. United States, 527 U.S. 1, 7 (1999).
The Supreme Court has found structural error in “a very limited class of cases.” Johnson v. United States,
520 U.S. 461, 468 (1997). These errors deprive defendants of “basic protections” without which “a criminal
trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577–78 (1986) (internal
citations omitted). Among this limited class of structural errors are violations of the autonomy of criminal
defendants, including the right to reject court appointed counsel, Faretta v. California, 422 U.S. 806, 834
(1975); the right to self-representation, see McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); and the right
to choice of counsel, United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).
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Even if Batiste were inapplicable and state habeas counsel need show only a likelihood of
success on direct appeal, Granger still fails to establish that state habeas counsel was deficient.
Indeed, he provides no meaningful basis upon which state habeas counsel could have shown
prejudice under even this lower legal threshold.
The Supreme Court has made plain that “in considering a Batson objection, or in reviewing
a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial
animosity must be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (citing Miller-El
v. Dretke, 545 U.S. 231, 239 (2005)). For example, in Miller-El, the Supreme Court focused on
numerous factors in holding that the State violated Batson, including: (1) the striking of 91% of
qualified African American jurors, 545 U.S. at 241; (2) the consistent disparate questioning of
African American and white jurors during voir dire, id. at 255–63; (3) the exercise of a jury
shuffle to ensure that fewer African American jurors were on the panel, id. at 253–54; and (4) the
district attorney’s office’s “specific policy of systematically excluding blacks from the jury”
derived from a twenty-year-old manual on jury selection, id. at 263–66. Granger alleges only one
of the several factors generally used to support a successful Batson argument on appeal. (See #44
at 65–69).
Granger’s contention in support of his defaulted IATC claim is that trial counsel had
sufficient information to make a prima facie Batson allegation based only on the State’s strike and
exclusion rate of black and Hispanic veniremembers. (See #44 at 65–66). Critically, however,
Granger fails to establish disparate questioning by the State or to perform a comparative analysis
of any kind. (See id. at 65–69). Granger effectively admits that he has provided no other relevant
80
evidence of the prosecutor’s racial animus—seeking instead to establish an underlying Batson
violation at an evidentiary hearing. (See id. at 69).
This admission—that he has not carried his burden to prove purposeful discrimination
under Batson—is fatal to his effort to invoke Martinez. First, in failing to substantiate his claim
of racial animus to this court (other than his citation to the prima facie data), Granger has provided
no arguable basis upon which state habeas counsel could have succeeded in the state courts.
Indeed, if Granger is not presently able to invoke any of the “circumstances that bear upon the
issue of racial animosity,” see Snyder, 552 U.S. at 478, then neither could state habeas counsel.
Second, Granger’s reliance on the complete Batson framework to substantiate his defaulted
IATC claim is problematic because of the unavailability of the Martinez exception in Texas
postconviction proceedings to overcome defaulted IATC-Batson claims. See, e.g., Ex parte
Preyor, 537 S.W.3d 1, 3 (Tex. Crim. App. 2017) (Newell, J., concurring) (declining to overrule
Ex parte Graves, 70 S.W.3d 103, 111 (Tex. Crim. App. 2002), or to incorporate the
Martinez/Trevino exception into Texas habeas procedure). In sum, Granger wholly fails to
demonstrate that state habeas counsel was ineffective for failing to raise this claim. He fails,
moreover, to demonstrate Strickland prejudice under Batiste. Even under the lower standard, it
is clear that the TCCA would have denied the claim had state habeas counsel raised the defaulted
IATC claim citing only the State’s strike and exclusion rate, as he does here. In either instance,
Granger fails to excuse the procedural default of his claim. Granger’s claim is not substantial for
purposes of Martinez.
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4.
In the Alternative, Granger’s Claim is Meritless
Typically, to prove a Batson violation, a petitioner must overcome the deference afforded
the trial court’s assessment of the prosecutor’s credibility. Snyder, 552 U.S. at 479. Here,
however, because Granger forfeited a Batson claim, the trial court did not analyze the credibility
of the prosecutor’s race-neutral explanations with reference to the live events in the courtroom.
As he must then, Granger presses this claim under Strickland as an IATC claim. To establish
deficiency, Granger, therefore, must show that “counsel’s representation fell below an objective
standard of reasonableness,” and must overcome the “strong presumption” that counsel’s
representation was reasonable. Strickland, 466 U.S. at 688–89.
Here, Granger’s reliance on the statistics—derived from the juror cards, etc.—to establish
the racial composition of the venire is problematic, as Granger fails to show that this information
was part of the state court record in Ex parte Granger I. The court cannot consider this evidence
pursuant to Section 2254(e)(2) and Pinholster. Even assuming such evidence accurately represents
the makeup of the venire panel, and that Granger’s strike- and exclusion-rate calculations are
correct, he fails to establish a meritorious Batson claim. See Linscomb v. State, 829 S.W.2d 164,
166 (Tex. Crim. App. 1992) (en banc) (“[T]he bare fact of strikes exercised against persons of
a certain race does not necessarily reveal the work of a racially prejudiced mind.”).
If Granger is correct that African Americans made up about twelve percent of the jury
pool, then one would expect there to be about one African American juror on his jury—and there
was, (see #44 at 52), despite the fact that the State still had a peremptory strike available, 17 RR
58 (State used fourteen out of fifteen strikes). Granger makes no effort to establish that trial
counsel, with their real-time perspective and ability to observe the demeanor of both the
82
prosecutors and veniremembers, were somehow required to object to the State’s use of peremptory
strikes on this record. This is especially true given that the race-neutral explanations for the
State’s strikes of nearly all the veniremembers at issue are readily apparent on the record. 15 For
example, veniremember Jackson revealed that, though she believed she could be fair, she did not
believe in the death penalty and would hold the State to a higher burden in a capital case than a
noncapital case. 10 RR 170–73; see also 8 RR 21 (veniremember Houston, a white juror who was
also struck by the State, volunteered that the State would “really have to prove it to” her, more
than a traffic ticket case). Veniremember Wafer stated that she would want someone like her on
the jury “[t]o prove [her] innocent.” 14 RR 76. The State, moreover, unsuccessfully challenged
for cause veniremember Harris after she agreed she “would always vote to save his life.” 15 RR
63–64. The answers provided on the record during voir dire, along with the demeanor of the
veniremembers, could reasonably have led counsel to believe that a Batson challenge was not
warranted.
All that Granger is left with, then, is an assertion that defense attorneys are always required
to make a Batson challenge—without regard to their subjective understanding of the prosecutor’s
motives in making peremptory strikes—whenever a minimally sufficient statistical basis could exist
to make the prima facie showing. (See #44 at 68) (“An attorney’s failure to make a Batson claim,
when confronted with a prima facie case of discriminatory exercise of peremptory challenges, is
deficient.”). On this point, however, Granger is simply incorrect, as the Supreme Court has
reasoned:
15
Deborah Fury, an African American juror who was qualified to the panel but struck by the State as a potential
alternate, 17 RR 57, was not questioned by either party in individual voir dire. Id. at 42–43. Rather, her juror
questionnaire was admitted, and the State indicated that it intended to “rely upon her answers to [the
questionnaire] in which to decide how to proceed with . . . jury selection.” Id. at 43.
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No particular set of detailed rules for counsel’s conduct can satisfactorily take account
of the variety of circumstances faced by defense counsel or the range of legitimate
decisions regarding how best to represent a criminal defendant. Any such set of rules
would interfere with the constitutionally protected independence of counsel and restrict
the wide latitude counsel must have in making tactical decisions.
Strickland, 466 U.S. at 688–89.
Plainly, a defense attorney is not required to mechanistically launch a Batson challenge
every time a prosecutor strikes 57% of the African American veniremembers. (See #44 at 65).
Rather, trial counsel—who observed all the non-record interactions between the veniremembers,
the attorneys, and the trial court—must be permitted to weigh those non-record factors against the
strike rate and to determine whether to assert a prima facie challenge.
Finally, Granger fails to establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,” meaning “a
probability sufficient to undermine confidence in the outcome.” King v. Davis, 883 F.3d 577, 586
(5th Cir.) (internal quotations omitted), cert. denied, 139 S. Ct. 413 (2018). “The likelihood of
a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112 (citation
omitted). A petitioner cannot satisfy Strickland’s second prong with mere speculation and
conjecture. Bradford, 953 F.2d at 1012. Likewise, a petitioner cannot rely on conclusory
allegations. Koch, 907 F.2d at 530; Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982), cert.
denied, 461 U.S. 951 (1983). Here, Granger’s fundamental contentions regarding the existence
of a Batson violation are wholly conclusory and speculative. Granger’s Batson challenge under
Claim 3 and Claim 1(4) is meritless. Thus, Granger’s Claims 3 and 1(4) are denied.
84
D.
Claim 4 (IATC): Trial counsels’ employment of the court’s competency expert as
an expert for the penalty-phase defense deprived Granger of Due Process, and
counsels’ failure to obtain an independent expert, or to consult with and prepare his
appointed expert before presenting his testimony, deprived Granger of the effective
assistance of counsel.
Claim 1(2): Trial counsel “secured the appointment of a psychiatrist who already
served as the court’s competency expert and had formed the opinion that Granger
was not psychotic and could control his behavior.”
Granger alleges that the retention of Dr. Gripon as a defense expert was improper because
he had previously served as the trial court’s competency expert, finding Granger not to be
psychotic or delusional. (#44 at 70). Granger believes that Dr. Gripon’s retention violated his
due process rights and rendered his trial counsel ineffective. (Id. at 70–79). The Director asserts
that because Granger failed to present these claims during initial state collateral review (Granger
I), the claim is procedurally barred, and that it is without merit. (#53 at 100–11).
Granger concedes that he attempted to pursue this claim in a subsequent state habeas
application that was dismissed as an abuse of the writ. (See #44 at 79); Ex parte Granger II, 2020
WL 915434, at *1. As such, Granger’s claim is procedurally defaulted. He argues, however, that
cause for the default exists under Martinez because state habeas counsel was ineffective for not
pursuing this claim.
1.
Granger’s New Evidence Cannot be Considered
Granger proffers numerous documents related to Dr. Gripon, including his post-trial
declarations, in support of Claim 4 and its subparts: (1) Dr. Gripon’s July 2012 competency
report (A0311-17); (2) Dr. Gripon’s notes from March 1, 2013, evaluation of Granger
(A0318-21); (3) Dr. Gripon’s notes from March 23, 2013, evaluation of Granger (A0322-23); (4)
Dr. Gripon’s May 2018 declaration (A0367-69); (5) subpoena of Dr. Gripon (A0862); (6) Dr.
85
Gripon’s August 2018 declaration (A0949-53); (7) selected statements of Derek VerHagen
(A0958) (“I was not aware that he never knew about Dr. Hamza’s test results.”); and (8) selected
statements of Ryan Carlyle Kent (#20-1 at 25, A0966) (“I never met with Dr. Gripon[.]”).
Because this evidence was not properly presented to the state court on initial collateral review and
Granger has failed to show that he meets the requirements of 28 U.S.C. § 2254(e)(2)(A), the new
evidence is barred from consideration by Section 2254(e)(2).
Where a petitioner relies on Martinez to excuse a procedural default, “a federal court may
not hold an evidentiary hearing—or otherwise consider new evidence—to assess cause and
prejudice,” Ramirez, 142 S. Ct. at 1739, if the petitioner “failed to develop the factual basis of
[his] claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). If a petitioner fails to develop
the factual basis of a claim in his state proceedings, a federal court may allow discovery and admit
new evidence in only two situations: (1) “[e]ither the claim must rely on a ‘new’ and ‘previously
unavailable’ ‘rule of constitutional law’ made retroactively applicable by [the United States
Supreme] Court”; or (2) “it must rely on a ‘factual predicate that could not have been previously
discovered through the exercise of due diligence.’” Shoop, 142 S. Ct. at 2044 (quoting 28 U.S.C.
§ 2254(e)(2)(A)(i) and (ii)). “And even if a prisoner can satisfy one of those two exceptions, he
must also show that the desired evidence would demonstrate, ‘by clear and convincing evidence,’
that ‘no reasonable factfinder’ would have convicted him of the charged crime.” Id. (quoting 28
U.S.C. § 2254(e)(2)(B)).
Here, Granger has not shown that his IATC claim regarding Dr. Gripon relies on a new
and previously unavailable rule of constitutional law or that the claim relies on a factual predicate
that could not have been previously discovered through the exercise of due diligence. He further
86
fails to demonstrate that “no reasonable factfinder would have convicted him of the crime
charged.” Id. State habeas counsels’ strategy or alleged negligence in not presenting the claim
is insufficient to meet the standard stated in Shoop v. Twyford. Id. (quoting § 2254(e)(2)(A)).
Thus, the court may not consider Granger’s proffer of new evidence to support his Claim 4 and
Claim 1(4).
2.
His Claims are Procedurally Barred and Without Merit
Granger concedes that his Claim 4 is procedurally barred. (See #44 at 79); Ex parte
Granger II, 2020 WL 915434, at *1. Granger does not argue the miscarriage-of-justice exception
to procedural default; instead, he contends that he can overcome the default under Martinez
because both his IATC claim, and the related due process claim, are substantial. (See #44 at 79).
a.
Due Process Claim
Granger argues as part of Claim 4 that his due process rights were violated because Dr.
Gripon had conflicting loyalties, having previously served as the court’s competency expert and
found Granger competent to stand trial. (#44 at 73–75). Granger relies primarily on Ake v.
Oklahoma, 470 U.S. 68 (1985), and McWilliams v. Dunn, 137 S. Ct. 1790 (2017), to support this
contention. (#44 at 73–75).
Granger’s reliance on Martinez to overcome the procedural default of his due process claim
is misplaced. “Trevino permits a Texas prisoner to overcome the failure to raise a substantial
ineffective-assistance claim in state court by showing that state habeas counsel was ineffective.”
Ayestas, 138 S. Ct. at 1093–94 (citing Trevino, 569 U.S. at 429). Trevino, however, does not
permit a Texas prisoner to overcome the failure to raise non-IATC claims in state court. See, e.g.,
Murphy v. Davis, 732 F. App’x 249, 256–57 (5th Cir. 2018) (“Under Martinez and Trevino, the
87
ineffectiveness of state habeas counsel may excuse a petitioner’s procedural default ‘of a single
claim’—ineffective assistance of trial counsel. Davila, 137 S. Ct. at 2062. We are also bound by
our past pronouncements that Martinez and Trevino apply ‘only’ to ineffective assistance of trial
counsel claims.”); see, e.g., Speer v. Stephens, 781 F.3d 784, 785 (5th Cir. 2015).
The Supreme Court in Davila declined to extend Martinez and Trevino beyond ineffectiveassistance-of-trial-counsel-claims, calling the exception “‘narrow,’ ‘highly circumscribed,’ and
available only in ‘limited circumstances.’” 137 S. Ct. at 2065–66. Martinez cannot excuse the
default of a non-IATC claim. Davila, 137 S. Ct. at 2063–64. Granger did not, and cannot, allege
a sufficient basis to overcome the procedural bar of his due process claim. Granger’s due process
claim is procedurally barred and does not warrant federal habeas review.
b.
IAC Claim Regarding Dr. Gripon
Regarding his IAC claim, Granger fails to show that his state habeas counsel were
ineffective for failing to raise this claim.
The court may not rely upon Granger’s new
evidence—state habeas counsels’ statements (#20-1 at 15-26, A0957, A0966, A0957, A0958)—to
determine whether his IAC claim is substantial under Martinez. Shoop, 142 S. Ct. at 2044. As
noted above, Granger fails to demonstrate that he can meet either prong of Section 2254(e)(2(A)(i)
or (ii). He does not point to, or discuss, any evidence that was presented to the state court in
Granger I that demonstrates that this ineffective of assistance of state habeas counsel claim is
substantial to overcome the procedural default through Martinez. The procedural default of this
IAC claim is not excused.
88
3.
Granger’s IATC Claim Regarding Dr. Gripon is also Meritless
Granger also claims that his trial counsel were ineffective for deciding to call, but failing
to prepare, Dr. Gripon as a witness. (#44 at 75–79). “The selection of an expert witness is a
paradigmatic example of the type of ‘strategic choic[e]’” contemplated by Strickland. Hinton v.
Alabama, 571 U.S. 263, 275 (2014) (citation omitted); see Dowthitt, 230 F.3d at 748 (counsel is
not required to “canvass[] the field to find a more favorable defense expert”). In any event,
Granger’s specific complaints about Dr. Gripon lack merit.
First, Granger contends that counsel did not properly “learn and apply the relevant law”
because they did not ensure that Granger received the “defense expert assistance” to which he was
constitutionally entitled. (#44 at 75–76). This claim reiterates Granger’s due process claim
through the IATC lens. Trial counsel, in fact, retained two mental health experts, and they
specifically cited to Ake when seeking Dr. Gripon’s appointment. (See 11-1 at 178, A0171).
Granger is retrospectively challenging trial counsels’ strategic decisions.
Second, Granger argues that counsels’ decision to use “an expert whose independence was
compromised” by his prior opinions was unreasonable. (#44 at 76). In other words, Granger now
believes that Dr. Gripon’s conclusions that “Granger was not only competent but free of delusions
and hallucinations, and able to control his behavior” were not favorable to him, see id., and he
uses his disagreement with those conclusions as evidence of Dr. Gripon’s allegedly conflicting
loyalties. Granger, however, is not constitutionally entitled to a favorable expert who agrees with
his own preferred conclusions. See Ake, 470 U.S. at 83 (defendant does not have “a constitutional
right to choose a psychiatrist of his personal liking”); Coble v. Cockrell, 80 F. App’x 301, 310
(5th Cir. 2003) (“The fact that [one expert’s] testimony was not as favorable as Coble would have
89
liked does not render [his] performance incompetent.”); Ex parte Jimenez, 364 S.W.3d 866, 877
(Tex. Crim. App. 2012) (“Nor is a defendant entitled to choose an expert of his own personal
liking or one who will agree with his defense theory. A defendant does not have a due-process
right to “‘shop’ for experts—at government expense—until he unearths a person who supports his
theory of the case.” (quoting Taylor v. State, 939 S.W.2d 148, 152 (Tex. Crim. App. 1996))); De
Freece v. State, 848 S.W.2d 150, 159 (Tex. Crim. App. 1993) (en banc) (“We recognize that the
accused is not entitled to a psychiatrist of his choice, or even to one who believes the accused was
insane at the time of the offense. Ake makes this much clear. But even a psychiatrist who
ultimately believes the accused was sane can prove invaluable[.]”).
Trial counsels’ decision to retain Dr. Gripon was undoubtedly strategic. Contrary to
Granger’s assertion that counsel were ignorant of the doctor’s opinions, (#44 at 76), trial counsel
were well aware of Dr. Gripon’s competency evaluation and clearly chose him as an expert to
deliver similar testimony—explaining the psychology underlying Granger’s violent behavior,
while, at the same time, concluding that he can ultimately control himself—an important
component of future dangerousness. See 27 RR 20–21 (Dr. Gripon testifying that Granger makes
a lot of threats, but does not have a history of aggression prior to the instant offense and can
control himself when he chooses to); 29 RR 18, 22 (defense closing arguments asking whether all
Granger’s words of “hate, ranting, rage, anger” are enough to kill someone and pointing out to
the jury that other than the instant offense, Granger had not committed other acts of violence).
Granger’s primary complaint about Dr. Gripon appears to be that he was predisposed not
to diagnose Granger as psychotic or brain damaged. As discussed further below, counsel
strategically sought to avoid portraying Granger as mentally ill. See 29 RR 18 (“He’s not insane.
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He’s not mentally ill—I mean, you’ve heard the doctors[.]”). In this regard, Dr. Gripon’s
competency report, and his subsequent punishment phase testimony, perfectly served their
strategy. Further still, Dr. Gripon possessed the imprimatur of neutrality, given his prior role in
the case. See, e.g., 27 RR 14–16 (counsel immediately establishing that Dr. Gripon had first met
Granger as the court’s competency expert and asking whether his opinion has changed).
Even if Granger believes that trial counsel should have used Dr. Gripon in a different
manner, or not used him at all, it is clear that counsels’ “overall performance indicates active and
capable advocacy.” See Richter, 562 U.S. at 111; see also Coble v. Quarterman, 496 F.3d 430,
436–37 (5th Cir. 2007) (holding that a “desire to have a specific defense theory presented does
not amount to ineffective assistance on federal habeas review”). In sum, Dr. Gripon was not
conflicted, and counsels’ decision to retain him was strategic, not deficient.
Third, Granger asserts that trial counsel were ineffective for failing to prepare Dr. Gripon
properly to testify. (#44 at 76–77). He complains primarily that counsel did not provide Dr.
Gripon with Dr. Mike Hamza’s (“Hamza”) psychological testing report or the mitigation
specialist’s social history report. (Id.). In fact, trial counsel made a strategic decision not to call
Dr. Hamza or the mitigation specialist. Counsels’ strategy was to show that while Granger
certainly suffered from personality disorders, he was not mentally ill and could exercise restraint
in order to dispel a finding of future dangerousness.
During closing argument, counsel specifically referenced Dr. Gripon’s testimony in
arguing that the jury had heard from “the doctors” that Granger was not insane, not mentally ill,
“but he’s an individual not like us, not like you, not like me. . . . He should be locked up and
handled by professionals, people with training.” 29 RR 18. Counsel called Dr. Gripon primarily
91
to rebut the State’s future dangerousness evidence; that strategy’s failure does not make it
deficient.
Finally, Granger fails to show prejudice resulting from any of the alleged deficiencies. As
explained below, Granger’s proposed alternate mitigation strategy focusing on his alleged brain
damage would have been double-edged, at best. See Wiggins v. Smith, 539 U.S. 510, 535 (2003)
(indicating that the “double edge” of a defendant’s history has been “found to justify limited
investigations in other cases”); Kitchens v. Johnson, 190 F.3d 698, 702–03 (5th Cir. 1999)
(finding counsel’s decision not to investigate mitigating evidence of child abuse, alcoholism, and
mental illness was sound strategy where evidence was “double-edged” in nature). Given the brutal
nature of the primary offense and the significant aggravating evidence presented by the State, there
is not a reasonable probability that highlighting Granger’s brain damage would have affected the
jury’s answers on the special issues. Ultimately, counsels’ strategy was certainly not an error “so
serious as to deprive [Granger] of a fair trial, a trial whose result is reliable.” Strickland, 466
U.S. at 687. Therefore, Granger’s Claims 4 and 1(4) are denied.
E.
Claim 5 (IATC): Trial counsel were ineffective for hiring as their lead investigator
the father of a witness for the prosecution.
Claim 1(1): Trial counsel “retained an investigator whose son was one of the
State’s witnesses, and who, as the recently retired Chief of the Beaumont Police,
was the former boss of many of the other witnesses.”
Granger next alleges that trial counsel were ineffective for hiring Frank Coffin, Jr.,
(“Coffin”) as their lead fact investigator when he suffered conflicted loyalties on several alleged
bases. (#44 at 79–84). The Director contends that Granger’s claim is procedurally barred and that
he fails to demonstrate any exception to the procedural bar. (#53 at 111–20). The Director
92
further contends that the court cannot reach the merits of this procedurally barred IATC claim,
and, in the alternative, Granger’s claim is meritless. (Id.).
Granger asserts that trial counsel were ineffective because their fact investigator, Coffin,
was: (1) the father of one of the State’s forty-three (43) witnesses (Coffin, III) who testified at
Granger’s trial (see 1 RR 24–27); and (2) a former City of Beaumont Police Chief. Coffin had
retired six months before the March 14, 2012, shooting of Sebolt.
Granger claims that state habeas counsel were ineffective because they were aware of the
familial “relationship between defense investigator Coffin and Detective Coffin, III” and “had no
strategic reason for not raising this claim.” (#44 at 84, citing #20-1 at 18, 29 (A0959, A0970)).
Granger concedes that he attempted to pursue this claim in his second state habeas application that
was dismissed as an abuse of the writ. (See #44 at 83–84); Ex parte Granger II, 2020 WL
915434, at *1. As such, Granger’s claim is procedurally defaulted. He argues, however, that
cause for the default exists under Martinez/Trevino because state habeas counsel were ineffective
for not pursuing this claim. He insists that state habeas counsels’ ineffectiveness excuses any
procedural default. (#44 at 84, citing Trevino, 569 U.S. at 429).
1.
Granger’s Claim is Procedurally Barred, and his Newly Presented Evidence
Cannot be Considered
a.
Granger’s New Evidence Cannot be Considered
As explained above, a federal habeas court may admit new evidence in only two situations:
(1) “[e]ither the claim must rely on a ‘new’ and ‘previously unavailable’ ‘rule of constitutional
law’ made retroactively applicable by [the United States Supreme] Court”; or (2) “it must rely
on a ‘factual predicate that could not have been previously discovered through the exercise of due
93
diligence.’” Shoop, 142 S. Ct. at 2044 (quoting 28 U.S.C. § 2254(e)(2)(A)); see Ramirez, 142
S. Ct. at 1739. Granger has not made any showing that either situation applies here.
As a result, the court cannot consider the following evidence upon which Granger relies
to support his claim: (1) Coffin’s website, see (#44 at 80); (2) Detective Coffin, III’s March 15,
2012, police report (A0820-21); (3) a September 6, 2012, receipt of items given to investigator
Coffin (A0871); (4) notes from an October 25, 2012, interview with Granger (A0873); (5) notes
from interviews with Granger, Ulysses, and Kassandra Valadez (“Valadez”) (A0875-78); (6) an
invoice from February 5, 2013 (A0879-84); (7) notes from March 20, 2013, interview with
Darron and Derrick Hayes (A0904-05); (8) March 26, 2013, email regarding defense witness list
(A0906-08); (9) cover letters from counsel to Drs. Hamza and Gripon; (10) all of the documents
presented in Volume 4 of Granger’s appendix, under the subheading “Counsel File Materials,”
(see #11-1, at 6); and (11) state habeas counsels’ statements (A0959, A0970). 16 Because the new
evidence was not properly presented to the state court on initial collateral review and Granger has
failed to show that he meets the requirements in Section 2254(e)(2)(A)(i),(ii)), the new evidence
is barred from consideration by Section 2254(e)(2). Ramirez, 142 S. Ct. at 1739.
b.
IAC Claim Regarding Investigator Coffin
Granger fails to show that his state habeas counsel were ineffective for failing to raise this
IAC claim. The court may not rely upon Granger’s new evidence; see supra, to determine
whether his IAC claim is substantial under Martinez. Shoop, 142 S. Ct. at 2044. Granger does
not point to, or discuss, any evidence in the state habeas record that makes this claim substantial
16
The Director also correctly points out that none of the new evidence is properly authenticated and would be
excluded from review because of admissibility issues under the Federal Rules of Evidence. The court,
however, will not reach this issue as Granger’s new evidence is excluded from consideration due to his failure
to meet the requirements of Section 2254(e)(2)(A)(i),(ii)).
94
for purposes of Martinez. Martinez does not benefit Granger. The procedural default of this IAC
claim is not excused.
2.
Granger’s IATC Claim Regarding Investigator Coffin is also Meritless
Citing primarily to cases regarding only an attorney’s alleged conflict of interest, Granger
argues that counsels’ decision to hire Coffin as their mitigation fact investigator was deficient.
(#44 at 80) (citing to Beets, 65 F.3d at 126; United States v. Vasquez, 298 F.3d 354, 360 (5th
Cir.), cert. denied, 537 U.S. 1024 (2002); and United States v. Carpenter, 769 F.2d 258, 263 (5th
Cir. 1985)). Granger specifically alleges that Coffin was conflicted on two bases: (1) his son was
a witness for the State (#44 at 79–84); and (2) less than six months before the March 12, 2013,
incident at the courthouse, Coffin retired from the Beaumont Police Department (“BPD”), where
he was the Chief of Police (id. at 80). Granger argues that, whether due to “laziness, inability to
perceive how their agent’s loyalty deviated from their client’s interest, or some other basic
deficiency,” counsels’ failure to retain an investigator “who was not related, by both blood and
profession, to a key State’s witness” was deficient. (Id.). Relying on little more than speculation
or strategic decisions with which he disagrees, Granger asserts that Coffin’s retention prejudiced
him. (#44 at 80–83). Granger fails to satisfy either prong of Strickland ineffectiveness.
First, Granger alleges only hypothetical, not actual, conflicts of interest. Granger argues
that Coffin was conflicted because he investigated both phases of trial “presumably knowing that
his son was a key component of the opposing investigation who believed that Petitioner was a
dangerous character and doubtless wanted to see Petitioner convicted and punished—in direct
contravention of Frank Coffin, Jr.’s and trial counsels’ ethically and constitutionally required
interests.” (Id. at 80) (emphasis added). Granger’s language alone, e.g., “presumably” and
“doubtless,” reveals that any conflict is purely hypothetical, and he points to no evidence
95
establishing that Coffin in fact: (1) knew his son would be a witness before he testified, (2) was
aware of the level of his son’s involvement in the investigation, or (3) believed that his son
“doubtless” wanted to see Granger convicted and punished.
Granger instead attempts to prove a conflict by relying on a daisy-chain of unsupported
assertions. He points to a two-page supplemental report submitted by Detective Coffin, III, the
day after the shooting, which he alleges was turned over to trial counsel during discovery. (See
#44 at 81) (citing A0820–21).
This two-page supplemental report, however, may not be
considered in light of Section 2254(e)(2). Granger then points to an unauthenticated, typed receipt
of items “handed to Frank Coffin in office today” that included a “Notebook titled ‘State’s
discovery’” (A0871), which Granger alleges “presumably contained [Coffin’s] son’s report,” (#44
at 82). Again, this receipt and notebook may not be considered pursuant to Section 2254(e)(2).
Granger does not present any evidence that Coffin was aware that his son was going to testify in
Granger’s trial or that it had any impact on the work that Coffin performed as a fact investigator.
Granger’s basic premise that Detective Coffin, III, was a “key component” of the State’s
case is entirely unsupported. Coffin, III, was one of forty-three witnesses presented by the State
at the guilt/innocence phase, at least twenty of whom were law enforcement. See 1 RR 24–27.
Out of the 557 pages of testimony presented by the State, Coffin, III’s, testimony took up ten
pages total. 20 RR 182–92. Because Coffin, III, arrived at the scene only shortly before Granger
was taken into custody, see 20 RR 183, he testified primarily as a fact witness to statements
Granger made while in custody at the hospital, see 20 RR 185–91—testimony that was largely
cumulative of other witnesses’ testimony. Compare 20 RR 186 (Coffin, III, stating that he
overheard Granger tell a nurse that if they were going to treat him like a killer, he would act like
a killer), with 20 RR 176 (Sergeant Michael Custer testifying to the same).
96
It is difficult to see how Coffin, III’s, minimal contribution to the State’s case would
somehow lead his father to possess such an animus against Granger that he could not effectively
investigate Granger’s case, much less that trial counsel unreasonably chose Coffin as their
investigator. Cf. Beets, 65 F.3d at 1277 (“Because [counsel]’s potential testimony for Beets was
cumulative, he was not a necessary witness for her defense and did not face a substantial
advocate/witness conflict. [Counsel]’s failure to withdraw and testify was not professionally
unreasonable under Strickland.”); see Koste v. Dormire, 345 F.3d 974, 983 (8th Cir. 2003)
(“Koste failed to allege, much less show, that [counsel]’s trial preparation or legal advice was
deficient in any specific way or that any deficiency in her performance was causally connected to
the alleged conflict of interest arising out of his ineffective assistance claim against [prior
counsel].”), cert. denied, 541 U.S. 1011 (2004); Carpenter, 769 F.2d at 263 (“[I]n this appeal
Carpenter fails to allege any strategy which defense counsel used or failed to use because [the man
in whose trial Carpenter was convicted of committing perjury] had agreed to pay the legal fees.
. . . There is nothing in the record to indicate that defense counsel had [the same man’s] interest
in mind.”).
The same is true of Granger’s hypothetical conflict with respect to Coffin’s law
enforcement ties. Granger objects that Coffin was a recently retired Chief of Police, had
“supervised and worked side by side with many of the State’s other law enforcement witnesses,”
and had been involved with sex crimes investigations, including supervising the “very unit that
would have investigated the sex crimes [Granger]’s daughter accused him of committing.” (#44
at 80, 83). By Granger’s logic, counsel would be per se ineffective anytime they hired a former
local law enforcement officer, but no such rule exists. In fact, defense counsel might reasonably
97
determine, as a matter of trial strategy, that Coffin’s background would benefit their mitigation
investigation and, thus, ultimately benefit Granger.
Regardless, Granger offers no evidence showing that Coffin was affected either negatively
or favorably by his ties to the law enforcement community. Coffin’s resume shows that he
implemented and supervised the Special Crimes Unit from 1972 to 1993, almost twenty years
before Granger committed the instant offense.
See Frank C. Coffin, Jr. Resume,
https://www.frankcoffininvestigations.com/s/Resume-FrankCoffin.docx (last visited Oct. 26,
2020).17 Granger points to no evidence supporting his insinuation that Coffin was somehow
directly involved in any sex crimes investigation against Granger. Thus, he can demonstrate no
deficiency in trial counsels’ decision to retain Coffin.
Granger’s assertions of prejudice are even more speculative. Though he cursorily alleges
that Coffin’s proffered conflict “prejudiced [Granger] at both guilt” and punishment, he does not
specifically allege how counsels’ guilt-phase investigation or presentation was deficient due to any
conflict. See Koste, 345 F.3d at 983; Vasquez, 298 F.3d at 360 (“Vasquez does not specify,
however, how counsel was ineffective at the deferred adjudication proceeding, nor does he state
how the alleged ineffectiveness affected the outcome of the proceeding.”); United States v.
Hernandez, 333 F.3d 1168, 1175 (10th Cir.) (“Defendant does not . . . argue that [the defense
investigator] failed to pursue a particular line of investigation, or that he suppressed potentially
exculpatory evidence, or anything of the kind.
17
He merely states, without support, that
Rule 201 of the Federal Rules of Evidence provides that a court may take judicial notice of an “adjudicative
fact” if the fact is “not subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to
resources whose accuracy cannot be questioned.” FED. R. EVID. 201; accord Taylor v. Charter Med. Corp.,
162 F.3d 827, 829 (5th Cir. 1998); see also O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225
(10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information found on the
world wide web.”).
98
‘[statements] disparaging [Defendant] could only have the effect of undermining his case and
prejudicing him.’”), cert. denied, 540 U.S. 992 (2003). Granger’s “conclusory allegations
respecting counsels’ ineffectiveness are insufficient to show that he was prejudiced by his
counsels’ representation of him [at trial] or that a conflict actually existed.” Vasquez, 298 F.3d
at 360.
Granger’s allegations as to prejudice at the punishment phase are similarly conclusory.
Granger alleges, without support, that he was prejudiced because “a different mitigation case
would have been developed and presented had the de facto mitigation specialist not been closely
related to, and presumably influenced by, his strong ties to the State’s law enforcement witnesses,
including his son.” (#44 at 83) (emphasis added).
Granger claims, in essence, that trial counsel should have known—when they retained
Coffin as a fact investigator at the beginning of the criminal case in 2012—that the prosecutor
would call Coffin, III, as a witness for the trial in April 2013. Counsel are faulted for not being
clairvoyant. “Clairvoyance is not a required attribute of effective representation.” United States
v. Fields, 565 F.3d 290, 294 (5th Cir.) (citation omitted), cert. denied, 558 U.S. 914 (2009).
In sum, Granger relies on nothing more than speculation to show that he was prejudiced
by counsels’ choice of investigator. Granger’s mere disagreement with trial counsels’ strategic
decisions during the punishment phase is not sufficient to establish prejudice. This is especially
true given the totality of the evidence presented at this stage of the proceedings. There is not a
reasonable probability that any alleged deficiency would have affected the jury’s answers on the
special issues. Granger’s Claim 5 and Claim 1(4) are without merit on de novo review and are
not substantial under Martinez. Claims 5 and 1(4) are denied.
99
F.
Claim 6 (IATC): Trial counsels’ failure to investigate, prepare, and present readily
available, powerful mental health evidence deprived Granger of the effective
assistance of counsel.
Claim 7 (IATC): Trial counsel failed to investigate, develop, and present
compelling mitigating evidence of Granger’s background.
Claim 1(9): “[D]uring the punishment phase, the defense team curtailed the
mitigation specialist’s investigation, ignored the psychologist’s “advice” that
Granger had brain damage, and relied on Granger to describe his background and
functioning.”
Claim 1(10): Trial counsel “failed to reveal testing of Granger’s brain damage to
the psychiatrist so that psychiatrist would assess his opinions of Granger.”
Claim 1(11): Trial counsel “failed to prepare the psychiatrist to testify during the
punishment phase and failed to learn his opinions regarding future dangerousness
of Granger.”
Granger contends that trial counsel were ineffective because they failed adequately to
investigate, develop, and present mitigating evidence at the punishment phase of trial. (#44 at
84–104). He specifically complains that trial counsel failed to investigate and present three areas
of mitigating evidence:
(1)
Granger allegedly suffers from diffuse organic brain damage (#44 at 87–89);
(2)
Granger is a mentally ill trauma survivor with Schizoaffective Disorder, Bipolar
Type (#44 at 89–91); and
(3)
Granger had a more thorough and sympathetic life history that could have been
presented through their mitigation specialist, Norma Villanueva (“Villanueva”),
and other lay witnesses (#44 at 93–104).
Granger concedes that Claim 6—focusing more on mitigating mental health evidence—is
procedurally defaulted. (#44 at 91). Granger states that he attempted to exhaust the claim in his
second habeas petition, which was rejected as an abuse of the writ. Ex parte Granger II, 2020 WL
915434, at *1. He argues, however, that cause for the default exists under Martinez/Trevino
100
because state habeas counsel were ineffective for not pursuing this claim, which he contends is
substantial. (#44 at 91, citing Trevino, 569 U.S. at 429).
Granger acknowledges that Claim 7—which focuses on background mitigation evidence,
including mental health evidence—was presented to the TCCA in Granger I. (#44 at 103–04); see
Ex parte Granger I, 2017 WL 3379285, at *4 (holding Granger failed to demonstrate Strickland
violations for his claims that “counsel were constitutionally ineffective for failing to [] investigate
and present readily available mitigating evidence” and failing to “present an expert to explain the
impact of [Granger]’s social history”). The TCCA ruled that trial counsel were not ineffective
for failing to present social history evidence, including the testimony of the mitigation specialist,
Villanueva, because “mitigation evidence of the same nature proposed by Norma Villanueva was,
in fact, presented [by trial counsel].” (#44 at 103) (citing #50-15 at 332).
The Director argues that Granger’s current Claims 6 and 7 are essentially a single claim that
was raised and rejected on the merits in Granger I. (#53 at 121). The Director contends that
Granger must show that the state court’s rejection of his claim was unreasonable, but he failed to
do so on the record before the state court when it adjudicated his case. (#53 at 120–159). The
Director further asserts that Granger’s new evidence and argument, which Granger now seeks to
characterize as a separate claim, is barred from consideration under Pinholster. (#53 at 121). In
addition, he asserts that the new evidence and arguments fail to demonstrate constitutional
ineffectiveness in counsels’ mitigation investigation and presentation. (Id.). The Director
maintains that Granger’s Claim 6 and 7 should be denied.
1.
Granger Argues that His Mental Health Claim is Unexhausted
Granger argues that his mental health claim is unexhausted and thus should be reviewed
under Martinez/Trevino. Even if the court were to consider Granger’s IAC-mitigation claim to
101
be two separate claims, with the mental health component being unexhausted and thus procedurally
defaulted, Granger fails to provide any analysis under Section 2254(e)(2) to evaluate whether his
new evidence can be considered. Specifically, Granger has not shown that his IAC claim
regarding mental health mitigation evidence is based on a new and previously unavailable rule of
constitutional law or that the claim relies on a factual predicate that could not have been previously
discovered through the exercise of due diligence. State habeas counsels’ trial strategy or alleged
negligence in not presenting the claim is not sufficient to meet the standard stated in Shoop v.
Twyford, 142 S. Ct. at 2044 (quoting 28 U.S.C. § 2254(e)(2)(A)). Accordingly, for the reasons
already explained above, none of the new evidence offered by Granger in support of this claim can
be considered by the court.18 Ramirez, 142 S. Ct. at 1739.
2.
The Director Argues that Granger’s Mental Health Claim was Adjudicated
by the State Court
In his first state habeas application, Granger alleged that his trial counsel were ineffective
for failing to present “readily available mitigating evidence.” Ex parte Granger I, 2017 WL
3379285, at *4. Granger faulted counsel for failing to investigate and present:
18
(1)
information about his parents’ lives before his birth, SHCR-01.Supp.2 at 39;
(2)
the domestic violence his mother, Vallire, suffered at the hands of his father,
Ulysses Granger, Sr. (“Granger, Sr.”), and his stepfather, Ross, id. at 39–42;
(3)
his dysfunctional family life resulting from the overprotectiveness of his mother,
id. at 42–45;
Granger’s new evidence in support of this claim consists of: statements or reports from Stacie Brown
(“Brown”) (A0266-310); Dr. Gripon (A0367-69–May 2018), (A0949-53–August 2018); Dr. Hamza
(A0378-84–May 2018), (A0954-55–October 2018); and Vallire (A1014-20). Although Granger obtained state
habeas affidavits from the following witnesses, he has attached new declarations—not presented to the state
habeas court—from: Villanueva, Sewell, Monika Foster (“Foster”), Bartholomew, Christina Evans
(“Evans”), Debby Granger (“Debby”), and Ulysses. See Villanueva’s declaration dated May 2018
(A0372-76), all others dated August and October 2018 (A0983-1020). He also relies on new reports from
Dr. Daniel A. Martell (“Martell”) (A0227-48), and Dr. Richard Dudley (“Dr. Dudley”) (A0249-65), and
he offers Dr. Hamza’s report, which was created at trial but not proffered to the state habeas court
(A0324-45). Finally, he proffers Villanueva’s billing records (A0889-93).
102
(4)
the unsolved murder of his older sister, Samantha Granger, 19 id. at 45–48;
(5)
Granger’s good relationship with his children, Samantha and Bartholomew, id. at
48–49;
(6)
the toll the sexual assault allegations took on his family, id. at 50–52; and
(7)
the decline in Granger’s mental health leading up to the shooting, id. at 52–53.
The record supports the Director’s argument that Granger’s mental health status was raised
before the state habeas court in Granger’s first state writ application. See Ex parte Granger I
(#50-15 at 190–91); Ex parte Granger I, 2017 WL 3379285, at *4–5. As the TCCA ruled upon
the IAC claim regarding mitigation evidence, including mental health, Granger cannot proceed
under Martinez because the claim is exhausted. Martinez applies only to unexhausted IATC
claims.
Here, Granger alleges that the above issues should have been presented in the trial court
through lay witnesses and through an expert, Dr. Kevin Cokley. See id. at 39–62. Granger’s
argument reflects his disagreement with how trial counsel presented the evidence of the domestic
violence suffered by Granger’s mother, his unstable upbringing, the poor parenting he received,
his poor performance in school, his sister’s murder, and family mental illness. (See #44 at
93–98).
In rejecting this claim, the TCCA, adopting most of the trial court’s findings and
conclusions, held that Granger failed to meet his burden under Strickland. Ex parte Granger I,
2017 WL 3379285, at *4–5. It found that trial counsels’ investigation was constitutionally
adequate. Granger’s trial team consisted of three attorneys, Cribbs, Makin, and Vasquez, fact
investigator Coffin, mitigation specialist Villanueva, and her assistant, Valadez. SHCR-01.Supp.2
19
Granger’s sister is referred to as “Samantha Granger.” Granger’s daughter, Samantha Jackson, is referred to
as “Samantha” only.
103
at 32; CR at 13 (appointment of Makin); 1 CR.Supp.2 at 45 (appointment of Vasquez); (A0157)
(appointment of Villanueva); (A0161) (appointment of Coffin). Moreover, Granger retained four
experts to assist with his defense: medical expert Kathy Snyder (A0162–68); pathologist Dr.
Grossberg (A0169); psychiatrist Dr. Gripon (A0175); and neuro-psychologist, Dr. Hamza
(A0180).
With this team of experts, counsel “conducted a thorough investigation of Granger’s life
and situation,” including “fully investigat[ing] all family members and evaluat[ing] all
information.” SHCR-01.Supp.2 at 176, 180–81. Villanueva interviewed and investigated
numerous witnesses, producing a seventy-three-page report of her findings and proposed
mitigation themes. 2 SHCR-01 at 196–269. Additionally, Coffin “personally talked with
numerous family members and knowledgeable parties.” Id. at 177; see also 3 SHCR-01 at 275
(Granger’s ex-girlfriend stating that two investigators spoke with her prior to Granger’s trial); 2
SHCR-01 at 193 (Villanueva reporting that Makin told her Coffin was already investigating
Granger’s intellectual deficits).
Based on counsels’ “evaluation of the stories, emotions[,] and believability” of the
witnesses investigated, counsel formulated a strategy that focused on Granger’s nonviolent past
and minimal future dangerousness—choosing to present Dr. Gripon solely as a future
dangerousness expert to establish that, though Granger may have mental health issues, he has the
ability to control his behavior. See also 27 RR 17 (Dr. Gripon noting that Granger had no
significant criminal record before the March 2012 shooting).
To that end, trial counsel presented nine witnesses on Granger’s behalf, including Granger
himself. See 27 RR 9–112; 28 RR 8–67. Two of those were Granger’s fellow inmates who
testified that Granger was not violent in prison; therefore, he could be controlled if sentenced to
104
life in prison. See 27 RR 68–71; 27 RR 79–80. In line with their theme of Granger’s being “all
talk” but no action, counsel presented Dr. Gripon to rebut the State’s future dangerousness case,
which focused primarily on the sexual assault allegations against Granger as well as the often
graphic and vulgar language Granger used against jail officials as well as with his family. For
example, Dr. Gripon noted that Granger’s references to the apocalypse or Armageddon during his
recorded phone calls cannot possibly be taken as an indication of his future danger since he has
no power to bring about such things while in prison. See 27 RR 21; see also 29 RR 16 (counsel
arguing that he could have brought doctors to explain the phone calls, but common sense tells the
jury that Granger never really received a call from Casey Anthony and that he is not really a
soldier or an avenging angel). Counsel thus attempted to impart to the jury that, even at Granger’s
“worst” in jail, he was not actually dangerous. See, e.g., 29 RR 17 (arguing that Granger’s words
of hate were all-inclusive, but are just words, not action, and that was not even Granger being on
“good” behavior while awaiting trial).
And while counsel was mindful of Granger’s life history and potential mental health issues,
see 2 SHCR-01 at 196–269 (Villanueva’s mitigation report), it is clear they wanted to steer the
jury away from any implication that Granger would be unable to control his actions in prison.
Counsel was careful to elicit Dr. Gripon’s conclusions that, despite potentially having intermittent
explosive disorder, Granger could control himself if he chose to. See id. (calling Dr. Gripon
because he arrived at such conclusions when he was the “neutral” court-appointed competency
expert); see also 27 RR 19, 21, 30–31 (Dr. Gripon testifying that his opinion on Granger’s
competency was that, though he was a paranoid individual with a lot of internalized anger, he
could control himself). Counsel highlighted Dr. Gripon’s opinions in closing argument that
Granger was not mentally ill or psychotic. See 29 RR 18 (“He’s not insane. He’s not mentally
105
ill—I mean, you’ve heard the doctors[.]”); see also 27 RR 16, 19 (Dr. Gripon testifying that he’s
“never found evidence of psychosis” in Granger and that Granger’s paranoia is not a mental
illness).
Trial counsel presented Granger’s social history and background “through lay witnesses
and a mental health expert.” SHCR-01.Supp.2 177, 179, 182. Contrary to Granger’s allegation
that the only mitigation testimony came through Granger himself, (see #44 at 93, 103), Dr. Gripon
testified to Granger’s mental health and lack of coping mechanisms. See, e.g., 27 RR 19–20, 27.
His cousin, his father, and his mother, all testified about Granger as a child and about the family
dynamics. See 27 RR 49–52, 55–63, 97–112. Pastor James McAbee (“McAbee”) testified about
his ministrations to Granger in prison. 27 RR 33–43. Trial counsel also played hours of recorded
jailhouse conversations between Granger and his family, see 27 RR 121–27; 28 RR 5–7, and
admitted hundreds of pages of Granger’s school records, workers’ compensation records, and
medical records, see Defense Exhibits 3–11. In all, counsel presented evidence of: (1) domestic
abuse suffered by Granger’s mother; (2) Samantha Granger’s unsolved murder and its effect on
Granger; (3) Granger’s child custody situation over a period of years; (4) the impact of the sexual
abuse allegations against Granger; (5) psychiatric evidence regarding competency and paranoia;
(6) Granger’s poor coping mechanisms; (7) his problems with impulse control; (8) Granger’s
internalized anger; (9) his insistence that he felt he was the victim of lies; (10) his frustration with
life; and (11) his ability to control his behavior. SHCR-01.Supp.2 at 187–88.
The state court also found that counsel additionally presented evidence of: his parents and
lack of relationship with his father; the breakup of Granger’s parents; his mother’s absence when
she was shipped out as a merchant seaman; his mother’s subsequent relationships with Ross and
Ozene; the effect that the many moves the family made during Granger’s formative years had on
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him; his sister’s life as a prostitute and the effect of her absence on Granger; his sister’s murder
by someone who broke into her apartment and shot her several times; the numerous schools
Granger had attended in childhood, as well as the fact that he failed two grades and dropped out
in ninth grade; the custody battle between Granger and his ex-wife Claudia; and the degenerative
disc disease he suffered and its impact on his ability to work. SHCR-01.Supp.2 at 188–90.
The findings of fact by the state court are entitled to a presumption of correctness under
28 U.S.C. § 2254(e)(1) that Granger fails to overcome with clear and convincing evidence. See
Reed, 739 F.3d at 768 (deferring to the TCCA’s findings of fact on an actual innocence question
under state law in finding that petitioner failed to prove actual innocence under federal law).
Thus, whether Granger’s claim is considered adjudicated—and reviewed under 28 U.S.C. §
2254(d)(1)—or partially procedurally defaulted—and reviewed in light of the presumed-correct
fact-findings of the state court under 28 U.S.C. § 2254(e)(1)—Granger’s claim fails.
Given the above, the state habeas court reasonably found that, “while [Granger], in
hindsight perhaps, expanded on the details of [his] social history, in fact, trial counsel did present
evidence of [his] social history” on each issue Granger faulted trial counsel for not presenting.
SHCR-01.Supp.2 at 187. Given that the evidence Granger faults trial counsel for not presenting
was also cumulative of that presented at trial, counsel could not have been deficient for failing to
present it through either lay witnesses or an expert like Villanueva. See id. at 188 (finding that
“evidence of the same nature proposed by Norma Villanueva was, in fact, presented”); see also
United States v. Fields, 761 F.3d 443, 458 (5th Cir. 2014) (“[O]ur review of the evidence
presented at trial, when compared to the additional evidence Fields claims his counsel should have
discovered, convinces us that reasonable jurists would not disagree with the district court’s
determination that the new evidence is not materially different from that presented at trial. Rather,
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it offers more detail about each category of mitigation evidence, but duplicates the evidence
already presented.”), cert. denied, 576 U.S. 1004 (2015). To the extent that trial counsel did not
proceed in exactly the manner Granger now says they should have, such matters of degree are
squarely not grounds for ineffective assistance of counsel. See Dowthitt, 230 F.3d at 743 (“We
must be particularly wary of argument[s] [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.”).
Granger admits that “Villanueva developed much of the above mitigation,” (#44 at 85),
but argues that she did not develop all of it because counsel curtailed the investigation and
unreasonably “cast aside” powerful mitigating evidence by not consulting with her before choosing
not to call her. (#44 at 99–100). The record, however, belies these assertions. First, Villanueva
admits that throughout her investigation, she emailed her work product, including interview
memos and the emerging mitigation themes, “as it was completed.” 2 SHCR-01 at 191. Counsel
acknowledged receipt of such work product and gave her positive feedback about it. See id.
(Villanueva saying that she “occasionally received email replies saying things like ‘good work’”).
Thus, even assuming that Villanueva did not send her final report to trial counsel until the night
before the punishment phase of trial began, counsel were kept abreast of Villanueva’s investigation
as it developed and so had ample time to consider the evidence and the themes she proposed.
Granger’s attempts to cast doubt on counsels’ strategic decisions by insinuating that they simply
did not have time to make them are unavailing. (See #44 at 100) (complaining that counsel never
talked to Villanueva and did not “have time” to read her report and incorporate it into their
mitigation presentation).
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Second, Villanueva admits that counsel discussed the possibility of her testifying on
Granger’s behalf, that it was a “constant topic” within the team throughout her investigation, and
that on the day of the guilty verdict she was instructed to prepare to travel to Galveston to testify.
2 SHCR-01 at 193. Despite Villanueva’s purported confusion about why she was not ultimately
called, see id. at 193—and despite Granger’s assertions that there was no strategic reason not to
call her (see #44 at 100)—the record makes clear what occurred. Villanueva was told “[o]n the
afternoon of the day before Mr. Granger’s death sentence was handed down” that she would no
longer be needed to testify, 2 SHCR-01 at 193, i.e., the same afternoon that Granger testified
against counsels’ advice, 28 RR 8. During his testimony, Granger had numerous outbursts and
clashes with the prosecutor. See, e.g., 28 RR 60–62 (calling the trial a “mockery of justice” and
using other profanity to impugn the integrity of the trial). It was thus “based on the situation that
had developed at trial,” at least in part, that counsel decided not to call Villanueva. See SHCR01.Supp.2 at 176 (counsel “felt that in evaluating the evidence and developments during trial, a
decision to not call Ms. Villanueva was best”), SHCR-01.Supp.2 at 180 (stating that “Granger’s
behavior up to his courtroom outburst was exemplary”), id. at 181.
The state court found that “developments during trial and the presentation of the same
evidence through la[y] witnesses dictated against, or at least made unnecessary and unwarranted,
the calling of an expert witness on social history/mitigation.” Id. at 190. Therefore, counsel
reasonably chose not to call an expert to testify as to Granger’s life story after he had inappropriate
outbursts while testifying against counsels’ advice. See id. at 196; see also Schriro, 550 U.S. at
476–77 (finding that where the defendant interferes with counsel’s attempts to present a case in
mitigation, he cannot later claim ineffective assistance); cf. Strickland, 466 U.S. at 691 (“[W]hen
a defendant has given counsel reason to believe that pursuing certain investigations would be
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fruitless or even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.”).
Counsel could not be deficient for electing not to call a mitigation expert to testify when
such “[e]xpert testimony is not necessarily of benefit to the trier of fact[.]” SHCR-01.Supp.2 at
188. Furthermore, it is not clear that the proposed testimony set forth in Villanueva’s declaration
would be admissible at trial, given that it is comprised almost entirely of hearsay. “Generally
speaking, an expert is not permitted to testify as to hearsay information acquired during said
expert’s investigation that forms the basis for the experts’ opinions and conclusions.” Sells v.
Thaler, No. SA-08-CA-465-OG, 2012 WL 2562666, at *63 (W.D. Tex. June 28, 2012) (citing
United States v. Mejia, 545 F.3d 179, 194–96 (2d Cir. 2008)); see also Allison v. Ayers, No. CV
92-06404 CAS, 2008 WL 5274580, at *2 (C.D. Cal. Dec. 17, 2008) (finding that social history
mitigation expert’s “declaration and anticipated testimony are not admissible for the truth of the
facts they contain regarding petitioner’s background and character”).
Even assuming that Villanueva’s testimony would be admissible, the added value of expert
testimony that merely summarized other witnesses’ experiences and testimony is minimal,
“especially as in this case wherein trial counsel, through lay witnesses, presented social
history/mitigation evidence” that was largely duplicative of Villanueva’s declaration. See SHCR01.Supp.2 at 188.
Villanueva’s “conclusions,” which are essentially what she called her
mitigation “themes,” see 2 SHCR-01 at 192, are simply not the kind that require expert
testimony—the jury did not need expert testimony to understand that Granger’s sister’s murder had
a great impact on his family or that the domestic violence suffered by Granger’s mother affected
him. Cf. Belmontes, 558 U.S. at 24 (“But the body of mitigating evidence the Ninth Circuit
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would have required [counsel] to present was neither complex nor technical. It required only that
the jury make logical connections of the kind a layperson is well equipped to make.”).
The jury “could use its common sense or own sense of mercy” to arrive at those
conclusions. See id. Thus, counsel reasonably decided that a social history expert was not
warranted, and counsels’ “[e]valuation of all known facts, Mr. Granger’s statements[,] and the
veracity of all parties were factors considered in this decision.” SHCR-01.Supp.2 at 177. Instead,
social history “evidence was presented through lay witnesses and a mental health expert.” Id.;
see also 29 RR 20 (counsel noting that part of Granger’s problem is the environment in which he
was raised, including the many schools he attended, his dropping out of school, and his mother
who was not “super mama” as he believed). The state court reasonably concluded that trial
counsels’ “failure to call an expert witness had a plausible basis,” and Granger had demonstrated
no deficiency. Id. at 196; see id. at 188 (finding “sufficient strategic reason existed not to call
Villanueva as a witness”).
Granger has not demonstrated that he was prejudiced by any alleged failure to investigate
mitigating evidence. See Ex parte Granger I, 2017 WL 3379285, at *4. To assess the likelihood
of a different result, reviewing courts “reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Wiggins, 539 U.S. at 534. Here, the aggravating evidence,
especially Granger’s repeated statements that he did not regret shooting at his daughter or running
over her in a truck and that it was not his gun that killed Sebolt, is powerful. The jury, moreover,
witnessed Granger’s outbursts on the stand, in which he insulted the State, the court, and even the
jury, demonstrating his inability (or lack of desire) to control himself. See 28 RR 60–62. Granger
was so unruly and uncontrollable during the State’s closing arguments he had to be removed from
the courtroom. 29 RR 33. Whatever additional sympathy more minute detail of his life history
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may have garnered, (see, e.g., #44 at 102) (citing to Vallire requiring seventeen stitches after a
beating by Granger, Sr., and still having scars on her face from such abuse, that Granger threw
himself in front of his mother when Ross pulled a gun on her, that Granger, Sr., attempted to run
Vallire off the road once when she tried to leave him), the state court appropriately concluded it
was likely outweighed by the totality of the aggravating evidence, combined with the jury’s incourt observations of Granger, at trial.
Further, given that much of the evidence Granger faults counsel for failing to investigate
and present was in fact presented to the jury, the omission of any additional testimony regarding
such evidence is not prejudicial. Belmontes, 558 U.S. at 22 (holding that adding cumulative
evidence to “what was already there would have made little difference”); Parr v. Quarterman, 472
F.3d 245, 258 (5th Cir. 2006), cert. denied, 551 U.S. 1133 (2007). This is doubly so when some
of that testimony, such as that contained in Villanueva’s declaration, may not even have been
admissible. See Neal, 286 F.3d at 242 (refusing to consider hearsay testimony for purposes of
Strickland prejudice); Clark v. Thaler, 673 F.3d 410, 423 (5th Cir.) (considering hearsay as “a
factor relevant to the quality of the mitigating evidence” for purposes of Strickland prejudice),
cert. denied, 568 U.S. 850 (2012).
This case is readily distinguishable from Wiggins, upon which Granger relies. In Wiggins,
defense counsel offered no mitigating evidence at trial in spite of the compelling evidence of
physical and sexual abuse that was available. 539 U.S. at 516–17. Further, Wiggins’s counsel
reviewed only a Pre-Sentence Investigation report and records from the Department of Social
Services, and the Court concluded that defense counsel were unreasonable to cease investigation
after learning that Wiggins had an alcoholic mother and problems in foster care. Id. at 518,
522–24. In contrast to the situations in Wiggins, Granger’s defense team thoroughly investigated
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his background and developed and presented a compelling mitigation defense, comprised of the
type of evidence now proposed. While this later-discovered evidence might provide more detail
about Granger’s childhood, it does not change the original mitigation case as drastically as in
Wiggins, 539 U.S. at 516–17, 525–26, 534–36.
Finally, it is even more unlikely that counsels’ alleged failure to present such mitigating
evidence was prejudicial when Granger testified and asked for the death penalty. See 28 RR 13
(Granger acknowledging counsels’ reluctance to ask him whether he would prefer life or death),
28 RR 45 (stating that he would rather die than live life in prison), 28 RR 52 (stating that he wants
the death penalty and admitting that he previously told the court to “give [him] death”); cf.
Schriro, 550 U.S. at 475–80 (denying relief when defendant testified that no mitigating
circumstances existed, instructed his attorney not to present any, and told the sentencing court to
“bring [the death penalty] right on”); see Luna v. Lumpkin, 832 F. App’x 849, 853 (5th Cir. 2020)
(holding that several factors distinguish Luna’s case from others where there was prejudice from
counsels’ failure to present mitigating evidence of mental illness and childhood trauma, with the
most obvious one being Luna’s own testimony that he could not be rehabilitated, that the death
penalty was appropriate, and that no mitigating evidence existed), cert. denied, 142 S. Ct. 718
(2021).
Granger makes little effort to challenge the state court’s determinations based on the record
before the court, instead offering new evidence to support his claim. See, e.g., #44 at 104 (the
pervasive history of mental illness in Granger’s family was not discussed). As explained below,
however, this argument and the evidence supporting it cannot be considered and, in any event, do
not undermine the reasonableness of the state court’s ruling. Granger’s remaining argument that
the state court’s verbatim adoption of the State’s proposed findings of fact and conclusions of law
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was unreasonable and, therefore, not entitled to deference (see id. at 103), is similarly unavailing.
See Green v. Thaler, 699 F.3d 404, 416 (5th Cir. 2012); Valdez, 274 F.3d at 946. Thus, Granger
fails to demonstrate that the state court’s decision was unreasonable, and his claim should be
denied.
“Mitigating evidence that illustrates a defendant’s character or personal history embodies
a constitutionally important role in the process of individualized sentencing, and in the ultimate
determination of whether the death penalty is an appropriate punishment.” Riley v. Cockrell, 339
F.3d 308, 316 (5th Cir. 2003) (citing Moore v. Johnson, 194 F.3d 586, 612 (5th Cir. 1999)).
Accordingly, “counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. The
Supreme Court has observed that “strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690–91. Thus, a particular decision
not to investigate further “must be directly assessed for reasonableness in all the circumstances,”
and a heavy measure of deference is given to counsel’s strategic decisions. Id. at 691.
The question of the effectiveness of pretrial investigation is one of degree; it is not subject
to precise measurement. Id. at 680; Dowthitt, 230 F.3d at 743. “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.” Wiggins, 539 U.S. at 533. “[R]easonably
diligent counsel may draw a line when they have good reason to think further investigation would
be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). Courts should “conduct an objective
review of [counsel’s] performance, measured for ‘reasonableness under prevailing professional
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norms,’” which must include a “context-dependent consideration of the challenged conduct as seen
‘from counsel’s perspective at the time.’” Wiggins, 539 U.S. at 523 (citation omitted); see Gray
v. Lucas, 677 F.2d 1086, 1094 (5th Cir. 1982) (“[C]ounsel’s decision to pursue one course rather
than another is not to be judged by hindsight.”), cert. denied, 461 U.S. 910 (1983).
The fact that a particular strategy may prove to be unsuccessful does not by itself establish
ineffective assistance. Gray, 677 F.2d at 1094. Rather, a “conscious and informed decision on
trial tactics and strategy is not a permissible basis for a claim of ineffective assistance of counsel
unless the strategy was so poor that it robbed the defendant of any opportunity to get a fair trial.”
Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (internal quotation marks and citation
omitted), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
3.
Granger’s New Evidence and Argument are Barred by Pinholster
Granger now seeks to raise the same claim he raised on state habeas review—challenging
counsels’ mitigation investigation and presentation—but with new evidence not presented to the
state court when it adjudicated the claim. Specifically, Granger did not proffer the following new
evidence to the state court: declarations from Brown (A0266–310); Dr. Gripon (A0367-69–May
2018), (A0949-53–August 2018); Dr. Hamza (A0378-84–May 2018), (A0954-55–October 2018);
and Vallire (A1014–20). Though he obtained state habeas affidavits from each of the following,
he has also attached new declarations from: Villanueva, Sewell, Foster, Bartholomew, Evans,
Debby, and Ulysses. See Villanueva’s declaration dated May 2018 (A0372–76), all others dated
August and October 2018 (A0983–1020). He also relies on new reports from Dr. Martell
(A0227–48), and Dr. Dudley (A0249–65), and he offers Dr. Hamza’s report, which was created
at trial but not proffered in state court (A0324–45). Finally, he proffers Villanueva’s billing
records (A0889–93).
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Granger does not address any of the new evidence he offers in support of his argument
regarding his life history. (See generally #44 at 79–90). With respect to the mental health
evidence, he argues that state habeas counsel was ineffective. (See #44 at 93–104). Martinez,
however, does not apply to claims that were adjudicated in state court. See Escamilla v. Stephens,
749 F.3d 380, 395 (5th Cir. 2014); Brown v. Thaler, 684 F.3d 482, 489 n.4 (5th Cir. 2012), cert.
denied, 568 U.S. 1164 (2013). Instead, those claims are subject to the limitations of Section
2254(d) and Pinholster. Escamilla, 749 F.3d at 395.
Th[e] backward-looking language [of § 2254(d)] requires an examination of the statecourt decision at the time it was made. It follows that the record under review is
limited to the record in existence at the same time; i.e., the record before the state
court. . . . Our cases emphasize that review under § 2254(d)(1) focuses on what a state
court knew and did.
Pinholster, 563 U.S. at 182. To this end, Granger cannot prove that the state court unreasonably
adjudicated exhausted claims with arguments and evidence that were not presented to the state
court. Id.; see Robertson v. Davis, 715 F. App’x 387, 392 (5th Cir. 2017) (new assertions raised
to show that the state court’s adjudication was unreasonable were barred from consideration by
Pinholster).
Granger may contend that his claim is qualitatively “new” because Drs. Martell and
Dudley diagnosed him with mental health issues and challenged Dr. Gripon’s testimony regarding
intermittent explosive disorder, whereas his state habeas arguments more generally related to
Granger’s background. Granger, however, cannot evade the deference afforded to the state
court’s legal determinations that counsels’ decision to focus on Granger’s future dangerousness
and to present the social history information that they did was reasonable trial strategy. Cf. Nelson
v. Davis, 952 F.3d 651, 660–61 (5th Cir. 2020) (holding that if Nelson’s federal IATC-Mental
Health claim is the same as the IATC claim he raised in state court, which “[n]otably . . . lacked
116
any claim of severe [Post-Traumatic Stress Disorder] that he now emphasizes in his federal
petition,” but which the district court nevertheless considered exhausted, no reasonable jurist
would debate the state court’s denial of the claim). Thus, Granger cannot convert his unsuccessful
state habeas claim into a new unexhausted claim by supplementing it with the reports of new
experts. Cf. id. at 661 (“Recognizing the substantial limitations on our review of an exhausted
claim, Nelson argues that his IATC-Mental Health claim is unexhausted because it is not the same
as the ineffectiveness claim he brought on state habeas.”).
The Fifth Circuit, moreover, has disapproved of similar efforts. For example, the
petitioner in Lewis v. Thaler asserted that he had fundamentally altered his claim with new
evidence and because his claim was thus unexhausted, the federal court could consider evidence
not presented to the state court. 701 F.3d 783, 790 (5th Cir. 2012), cert. denied, 569 U.S. 910
(2013). Rejecting this argument, the Fifth Circuit explained “that the exhaustion requirement of
§ 2254(b) is a reinforcement of, rather than an escape hatch from, the rule that a federal habeas
court’s review is limited to the state court record.” Id. Similarly, in Clark, the court applied this
principle to a claim challenging trial counsel’s punishment investigation and presentation, holding
that a federal court could not consider new affidavits from trial counsel and a private investigator
even though they alleged the non-presentation of entirely new witnesses. 20 See 673 F.3d at 420.
20
Granger also cites to Andrus v. Texas, 140 S. Ct. 1875 (2020) (per curiam). (#44 at 76, 85). Because the
state court adjudicated his claim prior to Andrus, Andrus cannot be used to show that the state court’s decision
was unreasonable. Cf. Shoop, 139 S. Ct. at 507–09 (per curiam) (criticizing a federal court for relying on
Moore v. Texas, 581 U.S. 1 (2017), to assess the reasonableness of a state court’s pre-Moore adjudication
of an intellectual disability claim under § 2254(d)). Even so, Andrus is distinguishable: Granger’s counsel
did not “abandon[ ] [his] investigation of [Granger’s] background after having acquired only rudimentary
knowledge of his history from a narrow set of sources.” Andrus, 140 S. Ct. at 1882 (quoting Wiggins, 539
U.S. at 524). Nor did he “‘ignore[ ] pertinent avenues for investigation of which he should have been aware,’
and indeed was aware.” Id. (quoting Porter, 558 U.S. at 40). Andrus’s counsel “performed virtually no
investigation, either of the few witnesses he called during the case in mitigation, or of the many circumstances
in Andrus’ life that could have served as powerful mitigating evidence.” Id. at 1883. Here, Granger’s
counsel had extensive familiarity with Granger’s background based on the thorough investigations of his
mental health expert, his mitigation expert, and his fact investigator. Any limitations on his investigation
were due not to willful disregard, see id., but to clear strategic choice.
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Here, Granger cannot avoid the AEDPA’s deferential standard by doing exactly what Pinholster
prohibited—adding new evidence. Id.
The TCCA’s merits rejection of Granger’s IATC mitigation claim was neither contrary to,
nor involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in Granger’s state habeas corpus
proceeding. Under AEDPA, Granger’s claims—Claims 6, 7, and 1(8–10)—do not entitle him to
federal habeas corpus relief.
G.
Claim 8 (IATC): Granger was denied his Sixth Amendment right to effective
assistance of counsel at the penalty phase of trial as a result of counsels’ failure to
adequately investigate and prepare witnesses and through presentation of overtly
harmful evidence.
Claim 1(5): “Trial counsel called witnesses who gave extremely harmful
testimony, sometimes elicited by the defense on direct examination.”
Claim 1(12): “[M]ost of the punishment phase witnesses the defense team called,
including the pastor, gave dramatically damaging testimony regarding Granger.”
Claim 1(13): “[D]uring closing argument, neither defense counsel explicitly asked
the jury to impose life.”
Granger asserts that his counsel provided ineffective assistance during the punishmentphase representation. He specifically alleges that counsel failed adequately to investigate and
prepare the witnesses who were called, which led to the presentation of overtly harmful evidence.
(#44 at 104–116). Granger lodges three primary complaints:
(1)
counsel did not object to the State’s introduction of extraneous acts through
three jail-guard witnesses (id. at 105–07);
(2)
counsel presented harmful evidence because of their inadequate preparation
of five of the nine witnesses they presented (id. at 107–13); and
(3)
counsels’ closing arguments were inept (id. at 113–15).
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Granger also asserts that these alleged actions violate his right to fair and reliable sentencing under
the Eighth and Fourteenth Amendments. (Id. at 105, 107).
The Director contends that Granger’s IATC claims for failure to prepare witnesses
adequately are procedurally barred, or, in the alternative, the claims lack merit. (#53 at 159–180).
He also states that Martinez does not apply to Granger’s Eighth and Fourteenth Amendment
claims; thus, they are procedurally barred and not entitled to a merits review.
1.
Granger’s Claims are Procedurally Barred, and his Newly Presented
Evidence Cannot be Considered
Granger admits that he presented these claims in a second state habeas application that was
dismissed as an abuse of the writ. (See #44 at 116); Ex parte Granger II, 2020 WL 915434, at
*1. He concedes these claims are procedurally defaulted but asserts that the default is excused.
Granger fails to provide any analysis under Section 2254(e)(2) to evaluate whether the evidence
in support of that argument can be considered by the court.
a.
Granger’s New Evidence Cannot be Considered
Granger attaches the 2018 statements of Sewell (A0986), Bartholomew (A0997-98), and
McAbee (A0976-78) to show that his attorneys failed to properly prepare these witnesses to testify
on his behalf. (#20-1). None of these declarations or statements was presented to the state court
in Granger I.
Where a petitioner relies on Martinez to excuse a procedural default, a federal court may
not consider new evidence to assess cause and prejudice, if the petitioner “failed to develop the
factual basis of [his] claim in state court proceedings.” Ramirez, 142 S. Ct. at 1739; 28 U.S.C.
§ 2254(e)(2). A federal court may admit new evidence in only two situations: (1) “[e]ither the
claim must rely on a ‘new’ and ‘previously unavailable’ ‘rule of constitutional law’ made
retroactively applicable by [the United States Supreme] Court”; or (2) “it must rely on a ‘factual
119
predicate that could not have been previously discovered through the exercise of due diligence.’”
Shoop, 142 S. Ct. at 2044 (quoting 28 U.S.C. § 2254(e)(2)(A)).
Granger does not assert that he may present the above evidence because of a new law or
rule that is retroactively applicable or that his claims asserting a failure to prepare defense
witnesses adequately could not have been discovered through due diligence. Id. Granger’s new
evidence is barred by 28 U.S.C. § 2254(e)(2)(A), and the court may not consider it.
b.
The Eighth and Fourteenth Amendment Claims
Granger argues that his counsels’ performance during the punishment phase violates his
Sixth Amendment rights, “as well as his Eighth and Fourteenth Amendment rights to a fair and
reliable sentencing proceeding.” (#44 at 105). Granger concedes that these claims were not
presented to the state court in Granger I and were dismissed as an abuse of the writ in Granger
II. (#44 at 116). He asserts that the procedural bar is excused under Martinez. (Id.) (citing
Trevino, 569 U.S. at 429).
Martinez does not apply to Granger’s Eighth and Fourteenth Amendment claims. Martinez
can only excuse the default of ineffective-assistance-of-counsel claims. See Davila, 137 S. Ct. at
2063. Granger cannot overcome the procedural bar for his Eighth and Fourteenth Amendment
claims here. The Eighth and Fourteenth Amendment claims are denied as procedurally barred.
2.
IAC Regarding Eighth and Fourteenth Amendment Claims
To the extent Granger is asserting that his state habeas counsel were ineffective for failing
to raise either an Eighth or a Fourteenth Amendment claim regarding “fair and reliable sentencing
proceedings,” that claim is procedurally barred as noted above. Martinez does not excuse the
default; thus, Granger cannot show prejudice as required by the Strickland test.
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3.
The State’s Introduction of Extraneous Acts
Granger alleges that counsel were ineffective for not objecting to the State’s introduction
of extraneous acts, despite counsels’ strategy to exclude such acts. (#44 at 105–07). Granger
specifically complains about the testimony of three jail guards—Craig Turner (“Turner”), Leday,
and Gutierrez—who worked at the Jefferson County Sheriff’s Office while Granger was awaiting
trial. (Id.). Granger alleges that each of these witnesses testified, without notice, and without
objection, to Granger’s behavior in jail. (Id.). He argues that the failure to object resulted in the
admission of bad acts that had been excluded before trial and that such deficient performance by
counsel prejudiced his defense. (Id. at 107).
Granger’s assertion that evidence of bad acts had been excluded prior to trial is incorrect.
(See #44 at 104–05, 107). Granger filed a pretrial motion seeking to discover evidence of
extraneous or unadjudicated acts that the State intended to offer at either phase of trial. See 3
CR.Supp.2 at 447–49. A review of the motion indicates that counsel did not seek to exclude
evidence of bad acts if timely notice was not provided. Rather, counsels’ motion was directed
primarily at the impact of insufficient notice on their ability to investigate and the possible need
for a continuance to investigate such acts. Id. at 448. In granting the discovery motion, id. at
447, the trial court did not rule that such acts would be excluded if not timely noticed, see 5 RR
40. Granger, therefore, cannot rely on an exclusion theory for either deficiency or prejudice.
Counsel, furthermore, is not required to make frivolous objections. Green v. Johnson, 160
F.3d 1029, 1037 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999); McCoy v. Lynaugh, 874
F.2d 954, 963 (5th Cir. 1989). Assuming that the complained-of testimony in fact amounts to
“bad acts,”21 it is not clear from the state record that timely notice was not provided. When
21
Some of the testimony about which Granger complains are simply opinions. (See, e.g., #44 at 106) (citing
Turner’s affirmative response to the State asking whether Granger “was ‘a risk to other guards and inmates
in the jail’”). Other testimony did not introduce evidence of a bad act at all. (See, e.g., id.) (citing Leday’s
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discussing the motion at a pretrial conference, the State acknowledged that they were already “in
the process of complying with” the discovery requirements. 5 RR 40; see also 5 RR 34 (State
acknowledging that they will comply with TEX. R. EVID. 404(b)). The record further reflects that
counsel were well aware of Granger’s misbehavior in pretrial detention: Dr. Hamza’s report
explicitly refers to an offense report from the Jefferson County Detention Center in which it was
alleged that Granger was “being violent and threatening officers.” (A0332). During defense
counsels’ cross-examination of Gutierrez, counsel referred to two incidents involving Granger,
the first of which “was about some blankets” that was not referred to during direct examination.
See 26 RR 51. Granger therefore fails to establish that counsel would have had a meritorious
objection on notice grounds to any of the complained-of testimony.
Granger’s complaint that counsel should have objected to Gutierrez’s testimony regarding
his risk of escape is also unavailing. When Gutierrez began to testify that an unknown inmate
“was talking about Mr. Granger trying to plan an escape[,]” the State quickly interrupted him.
26 RR 49–50 (“Mr. Shettle: Stop him. Hold on a minute. . . . Can we have just a moment, your
Honor?”). The State then changed course, instead asking Gutierrez if he, at any point, considered
Granger to be an escape risk. Id. at 50. Gutierrez responded that he did “[e]ver since [Granger]
came into the facility.” Id. The State’s curing of its own witness’s testimony left no basis or
purpose for counsel to object. A jailer’s opinion as to whether he considered an inmate to be an
escape risk is appropriate and admissible lay witness testimony. See Fierro v. State, 706 S.W.2d
310, 317 (Tex. Crim. App. 1986) (“[W]e have previously held that a properly qualified lay
witness could state an opinion concerning the probability that a capital murder defendant would
response, “I’ve read some reports, yes,” to the State’s asking whether he was “aware of any other instances
with inmate Granger and other deputies”); 26 RR 32 (defense counsel asking if Granger had merely “called
people bad names” and if Turner was “aware of other incidents,” to which Turner responded that he had
“heard of other incidents; yes, sir”).
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continue to commit criminal acts of violence.”). To be sure, contrary to Granger’s assertions,
(#44 at 106), whether Granger was an escape risk is certainly a relevant consideration with regard
to the future dangerousness inquiry. See, e.g., Gribble v. Johnson, No. 98-40927, 1999 WL
800203, at *11 (5th Cir. 1999) (per curiam) (“[T]he possibilities of escape or some other release
from prison are legitimate concerns in determining the future dangerousness of a defendant.”
(quoting Gribble v. State, No. AP-71,485, slip op. at 14 (Tex. Crim. App. Feb. 1, 1995)
(unpublished))), cert. denied, 528 U.S. 1173 (2000). Thus, Granger fails to establish deficiency
by counsel.
Moreover, even assuming deficiency, Granger cannot establish prejudice. Granger argues
that counsels’ actions “resulted in the admission of bad acts that the court had excluded before
trial.” (#44 at 107). As discussed above, the trial court did not exclude any bad acts prior to trial;
as a consequence, Granger’s conclusory assertion of prejudice fails. Granger cannot establish
prejudice for another reason: even if all the complained-of testimony were excluded, it would not
have made a different result reasonably probable given the horrific nature of his crime, the video
evidence, his own testimony and behavior in the courtroom, and his lack of remorse. Granger is
not entitled to habeas relief on this claim.
4.
Counsels’ Preparation of Witnesses
Granger attacks trial counsels’ direct examination of nearly all of his punishment phase
witnesses. Granger alleges that counsel inadequately prepared the witnesses to testify. (#44 at
107–113) (complaining about the testimony of McAbee, Granger, Sr., Jeffrey Sias (“Sias”),
Jonathan Gonzales (“Gonzales”), and Vallire). Granger alleges that, as a result of their lack of
preparation, counsel either elicited, or allowed the State to elicit without objection, harmful
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information, which “unwittingly aided the State’s case in aggravation.” (Id. at 107) (citing
Andrus, 140 S. Ct. at 1882–83).
a.
McAbee
Granger argues that McAbee, whom he characterizes as his “most harmful penalty-phase
witness[ ],” (id. at 108), gave “devastating” testimony when he testified that: (1) Granger was
“not at all remorseful about what happened to Claudia and Samantha”; (2) McAbee, who was
known as the “pistol packing pastor,” would have shot at Granger if he had been at the courthouse
the day of the shooting; (3) he believed in the death penalty; and (4) he could “probably side with
putting Mr. Granger to death.” (Id. at 108). Granger alleges that had counsel investigated
McAbee, he would not have presented him. (Id.).
Granger relies on a declaration provided by McAbee to support his argument.
(A0977–78). The court may not rely on McAbee’s declaration, as Granger fails to show that this
new evidence meets either prong of 28 U.S.C. § 2254(e)(2)(A)(i) or (ii). Shoop, 142 S. Ct. at
2044.
Regarding McAbee’s actual testimony at trial, Granger overstates McAbee’s testimony.
First, Granger’s argument that “[t]he only helpful testimony” McAbee provided “was his
recollection that [Granger] felt bad about Sebolt’s death” is misleading. (#44 at 108). McAbee
testified that he met Granger through his weekly ministrations at the jail, that Granger accepted
prayer, and that they talked about scripture together. 27 RR 36–37, 40. Consistent with a guiltphase theory that sought to decrease Granger’s culpability for the crime, McAbee testified that
Granger “felt lied on” and that “caused him to get to that capacity.” See 27 RR 38. McAbee
further testified that Granger expressed remorse about what happened to Sebolt, asked him to
contact Sebolt’s family because he “hated” what happened to her, and thought the family had
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grounds for a wrongful death lawsuit against Jefferson County. Id. at 38–41. While McAbee
affirmed Granger’s lack of remorse towards Claudia and Samantha, see id. at 38, 40–41, that was
consistent with Granger’s testimony at both phases of the trial and served to bolster his credibility
that he was admitting to the bad actions he took, but not to the ones he felt he did not take. See
23 RR 38–39 (admitting to shooting Samantha but denying shooting Sebolt), 66 (same), 69
(admitting to running over Samantha with the truck).
Although McAbee testified that he personally believed in the death penalty, 27 RR 44, he
did not testify, as Granger asserts, that he “could probably side with putting Mr. Granger to
death.” (#44 at 108). Instead, he indicated only that, if he was in the position to make such a
decision, he would be able to impose it if the evidence supported it—just as any other juror sitting
on the jury was qualified to do. See 27 RR 43–44 (stating that he would not make a decision as
to whether Granger should be put to death, since that job belongs to the jury, and “if [he] was
sitting in that jury and listening to it for the first time,” he would be able to impose the death
penalty because he believes in it, but he is not there to make that decision because he is not a
juror). This is simply a common sense answer, and the same thing that all jurors had to agree to
in order to sit on the jury. The same applies to McAbee’s statement that he would have defended
Samantha had he been at the courthouse that day. (#44 at 108).
Ultimately, counsel was faced with an impossible situation—they had a client who
adamantly denied killing the victim but who was honest, likely to his detriment, about wanting to
shoot and kill his ex-wife and daughter and who, therefore, felt no remorse either for a crime he
said he did not commit or for a crime he thought was justified. Added to that, half of his
immediate family, e.g., his ex-wives and his daughter, accused him of sexual assault; both of his
brothers had themselves been accused of sexual assault; and his son and mother vigorously
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defended him. Indeed, when Granger insisted on testifying against his counsels’ advice, counsel
were left taking the bad with the good—for every good piece of evidence they could squeeze out
of a witness, e.g., that Granger accepted prayer and had found faith in jail, there would inevitably
be bad evidence, e.g., that Granger was not remorseful about what happened to Claudia and
Samantha. In other words, Granger engages in the type of second-guessing of trial counsels’
strategy that is impermissible to establish a Strickland violation. “[T]he presentation of witnesses
is generally a matter of trial strategy,” Woodfox v. Cain, 609 F.3d 774, 793 (5th Cir. 2010), and
“there is a strong presumption that [trial counsel acted] for tactical reasons rather than through
sheer neglect.” Yarborough, 540 U.S. at 8. Granger fails to prove that no reasonable counsel
would have presented McAbee.
Moreover, Granger does not demonstrate any resultant prejudice. He offers no evidence
that counsel would not have called McAbee knowing the full extent of his eventual testimony. In
addition, most of the complained-of testimony was cumulative to that presented at trial in other
respects. Indeed, even if counsel were deficient for eliciting testimony from McAbee about
Granger’s lack of remorse toward Claudia and Samantha, Granger certainly cannot show prejudice
when he repeatedly made such statements to the jury. Regardless, given the horrendous nature
of the primary offense and the significant aggravating evidence presented by the State, supra, there
is not a reasonable probability that it would have affected the jury’s answers on the special issues.
Ultimately, counsels’ strategy was not an error “so serious as to deprive [Granger] of a fair trial,
a trial whose result is reliable.” Strickland, 466 U.S. at 687. Granger is not entitled to habeas
relief on this claim.
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b.
Granger, Sr.
Granger next asserts that counsel “did not meet with Petitioner’s father, Granger, Sr., at
all before presenting him as a witness,” and counsels’ “lack of preparation was apparent.” (#44
at 109). He analogizes his case to Andrus, where counsel “met with the defendant’s mother for
the first time when he subpoenaed her and [with] his father for the first time when he arrived in
court to testify.” (Id.) (citing Andrus, 140 S. Ct. at 1882). Granger, however, offers no evidence
that counsel never previously met with Granger’s father. Thus, his reliance on Andrus is
misplaced.
Granger is also incorrect to aver that Granger, Sr., had “absolutely nothing helpful to say,
except that he did not want his son, whom he had not seen in a very long time, to be put to death.”
(#44 at 109). The fact that Granger had not seen his father in a long time and that his father was
not generally present in Granger’s life is precisely the type of mitigating life history that Granger
faults trial counsel for not presenting. Granger, Sr., also testified about the murder of Granger’s
sister in 1987, 27 RR 55, 58; that he and Granger’s mother divorced when Granger was very
young, id. at 56; that he did not see his kids very much because they moved a lot and he was not
able to find them, id. at 56–57, 61–62; and that he knew what Granger did was wrong, but he did
not think that putting him to death was going to solve it, id. at 61–62.
Granger argues that Granger, Sr., nevertheless provided “hurtful” testimony: (1) Granger
told him in the middle of trial that the shooting happened because “he just couldn’t control his self
anymore”; (2) “Vallire took the children and hid them from him for years, just as [Granger] was
alleged to have done to Claudia”; and (3) Claudia had called Granger, Sr., a few years earlier
looking for Granger and the kids. (#44 at 95). The first statement was again consistent with
Granger’s testimony at both phases of trial and is therefore cumulative. The second statement,
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if true, is as mitigating as it is aggravating, as it shows a cycle of neglect or abuse in his family
history. Finally, the third statement is untrue: Granger, Sr., testified that Claudia called
“want[ing] to know about Bartholomew” but that he did not know what she wanted because he
“wouldn’t let her ask [him].” 27 RR 63. Granger, Sr., then clarified that she had asked where
Granger was, and he told her that he had last heard that Granger was in Houston. Id. at 64.
Granger, Sr., did not testify that Claudia asked about the children. Granger fails to prove
deficiency, and he fails to present any argument as to how he was prejudiced. In light of the
overwhelming evidence against Granger, there is no reasonable likelihood that these snippets of
testimony by his father negatively impacted the outcome of the case. Granger fails to meet his
burden under Strickland. This claim does not warrant habeas relief.
c.
Fellow Inmates Sias and Gonzales
Granger next alleges that counsel presented fellow inmates Sias and Gonzales in a
“hopeful” attempt “to confirm the abuse [Granger] experienced in prison,” but that their failure
to prepare these witnesses led to very little helpful testimony and, in Sias’s case, “devastating
cross-examination” testimony. (#44 at 109). Like his prior claims, Granger alleges that his
counsels’ investigation and preparation of these witnesses was as inadequate as that in Andrus
because they “barely met, let alone prepared, the witnesses [they] presented[.]” (Id.).
Granger believes that trial counsel “did not meet with inmate Gonzales before presenting
him as a witness,” (id.) (citing to 27 RR 65), and they were “equally unprepared to present the
testimony” of inmate Sias, (id. at 96). While counsel elicited testimony that he and Gonzales had
never met, see 27 RR 65, that was done strategically to bolster the inmate’s credibility, i.e.,
possibly to show that counsel had not influenced his testimony. See Feldman v. Thaler, 695 F.3d
372, 380 (5th Cir. 2012) (noting that a court reviewing counsel’s strategic choices is required to
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“not simply to give [counsel] the benefit of the doubt . . . but to affirmatively entertain the range
of possible reasons [he] may have had for proceeding as [he] did.” (quoting Pinholster, 563 U.S.
at 196)), cert. denied, 568 U.S. 1233 (2013).
This does not mean, however, as Granger alleges, that “[c]ounsel asked questions without
knowing how Gonzales would answer” or that he was unprepared to question either witness. (See
#44 at 109–10). Whether counsel formally met the witness is irrelevant. In addition to his trial
counsel, Granger’s trial team consisted of mitigation specialist Villanueva, and her assistant,
Valadez, and investigator Coffin.
With this trial team, counsel “conducted a thorough
investigation of Granger’s life and situation,” including “fully investigat[ing] all family members
and evaluat[ing] all information.” SHCR-01.Supp.2 at 176, 180–81. Villanueva interviewed and
investigated numerous witnesses, producing a seventy-three-page report of her findings and
proposed mitigation themes. 2 SHCR-01 at 196–269. Additionally, Coffin “personally talked
with numerous family members and knowledgeable parties.” Id. at 177; see also 3 SHCR-01 at
275.
“[N]either Strickland nor any other authority has ever concluded that utilizing a
court-appointed investigator to interview witnesses amounts to the ineffective assistance of
counsel.” See King v. Cockrell, 2002 WL 432450, at *3 (5th Cir.), cert. denied, 536 U.S. 989
(2002); Lord v. Wood, 184 F.3d 1083, 1095 n.8 (9th Cir. 1999) (“Counsel is not obligated to
interview every witness personally in order to be adjudged to have performed effectively.”). “A
defense attorney is not required to investigate the facts of a case personally. Counsel may delegate
the investigation to a private investigator.” Callahan v. State, 24 S.W.3d 483, 486 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d). As the Ninth Circuit has stated, “A claim for failure
to interview a witness may sound impressive in the abstract, but it cannot establish ineffective
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assistance when the person’s account is otherwise fairly known to defense counsel.” Eggleston
v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (quoting United States v. Decoster, 624 F.2d
196, 209 (D.C. Cir. 1976)).
Granger’s situation is wholly unlike Andrus, where Andrus’s counsel admitted that he was
“barely acquainted with the witnesses who testified during the case in mitigation.” 140 S. Ct. at
1882. In Andrus, “[c]ounsel acknowledged that the first time he met Andrus’s mother was when
she was subpoenaed to testify, and the first time he met Andrus’s biological father was when he
showed up at the courthouse to take the stand.” Id. “Counsel also admitted that he did not get
in touch with the third witness (Dr. Roache) until just before voir dire, and became aware of the
final witness (Martins) only partway through trial.” Id. “In short, counsel performed virtually
no investigation, either of the few witnesses he called during the case in mitigation, or of the many
circumstances in Andrus’s life that could have served as powerful mitigating evidence.” Id. at
1883. By contrast, Granger’s counsel conducted a more-than-adequate investigation in general,
and, through his investigator and mitigation experts, was quite familiar with Sias and Gonzales,
specifically.
Further, Granger’s allegations that neither witness provided “much helpful testimony” are
inaccurate. Supporting counsels’ lack-of-future-danger strategy, Gonzales testified that, in the
approximately eight months he had known Granger, he had never observed him getting into
physical fights, despite the fact that other inmates “messed with him.” 27 RR 66–69. Gonzales
also testified that he never saw Granger assault a guard, even though he had heard that guards
assaulted Granger. Id. at 70. Underscoring Dr. Gripon’s earlier testimony that Granger was a
lot of “hot air” but no action, Gonzales admitted that Granger would curse at people, but he never
threw a punch or resisted them, see 27 RR 71. Gonzales also supported counsels’ strategy to
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confirm that Granger was being mistreated in jail. See 27 RR 72 (guards made fun of Granger),
73 (guards treated him badly), 73 (guards would not want to give Granger his medications or
would just skip them), and 74 (Granger was treated differently from the ordinary prisoner). While
Gonzales testified that Granger denied killing anybody, this was again consistent with, and
cumulative of, Granger’s similar, repeated denials. Granger cannot show any deficiency or
prejudice with respect to Gonzales.
The same assessment pertains to Sias. Like Gonzales, Sias confirmed that Granger was
being mistreated in jail. See 27 RR 79 (testifying that officer told Granger to “shut the fuck up”
when he asked about his medication). Sias also testified that he never saw Granger strike the staff.
Id. at 80. While it is clear that counsel believed, based on Coffin’s interview of him, that Sias
would be a more favorable witness for Granger, it appears that counsel was faced with a witness
who simply decided to be less forthcoming on the stand than during his interview. See, e.g., id.
at 80 (counsel asking Sias if there were other incidents where Granger had issues with guards
regarding food, and Sias curtly responding, “No, not to my knowledge; no sir.”), 83 (counsel
asking whether “Granger had problems with trustees depriving him of food,” and Sias again
denying personal knowledge of such facts). “Here, counsel’s decision to call [Sias] was an
informed, strategic choice that simply backfired.” Murphy v. Davis, 737 F. App’x 693, 704–05
(5th Cir.) (finding fact that defense future dangerousness expert “buckled under cross-examination
does not show that calling him was strategically unreasonable”), cert. denied, 139 S. Ct. 568
(2018).
This applies with equal force to Sias’s testimony regarding Granger’s alleged admission
to molesting his daughter. (See #44 at 110–11). Sias was apparently identified by Granger as
being helpful to him, and no reasonable counsel would expect that, where his client has
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vehemently denied any sexual misconduct, he would then point counsel toward a witness to whom
he had confessed such conduct. Thus, while it may be true that counsel had not asked Sias
whether Granger had ever admitted to sexual misconduct, it does not undermine the reasonableness
of counsels’ investigation that he did not anticipate that a witness identified by his client as helpful
would have inculpatory information about the same client. The fact that Sias’s testimony surprised
counsel because he did not volunteer such information prior to trial does not mean counsel were
strategically unreasonable in their decision to call him. See Richter, 562 U.S. at 86 (“Just as there
is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may
not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what
appear to be remote possibilities.”); see also Murphy, 737 F. App’x at 704–05.
Regardless, “the impact of [Sias’s testimony] is not measurably more damaging than the
facts already before the jury.” Id. at 705. Indeed, the evidence of Granger’s future dangerousness
was substantial and significant. The State presented several witnesses, including Granger’s
daughter, to testify in graphic detail about the molestation that had occurred. See 26 RR 86–125.
Notably, Granger’s ex-wife had already testified about the shower incident that Sias mentioned.
See id. at 124. The impact of Sias’s testimony was also minimized by defense counsel’s
impeachment of him: defense counsel highlighted that Sias had never mentioned this information
to anyone before and undermined Sias’s credibility by getting him to admit that he supposedly
overheard this statement when Granger was “just talking about it” out loud, to Sias, without
seeing him, from three cells down. 27 RR 92–93. Granger fails to demonstrate that Sias’s
testimony had a reasonable probability of changing the jury’s mind regarding his future
dangerousness, given all the other evidence supporting such a finding.
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Granger summarily proffers a litany of other ways counsels’ actions with regard to Sias
were allegedly ineffective or prejudiced him. (#44 at 111). All are based on the notion that,
because the State purportedly did not provide notice of its intention to admit Granger’s statement,
the statement was inadmissible. (Id.). Granger is incorrect—Granger’s motions referred only to
custodial statements made during interrogation or at the behest of other “state actors,” including
jailhouse snitches. See 1 CR.Supp.2 at137–41; 3 CR.Supp.2 at 459–61 (citing Jackson v. Denno,
378 U.S. 368 (1964)); see also 5 RR 41 (referring to a number of oral statements made by
Granger); 20 RR 106–08 (defense counsel agreeing that Granger’s inculpatory statements during
hostage situation were noncustodial). Thus, neither of the motions apply to the situation at bar—a
fellow inmate, called by the defense, who testified that Granger spontaneously admitted to the
misconduct of sexual assault. Moreover, even if the motions applied, the trial court did not grant
either one. 5 RR 13–14, 41. Granger is mistaken that his counsel violated a court order
preventing certain testimony from being admitted into the record. He is further mistaken that the
State was required to provide notice of Granger’s jailhouse statement. Granger cannot show
deficient performance on the part of his trial counsel on the basis of the two motions. Granger
fails to show that he is entitled to habeas relief on this claim.
d.
Vallire
Granger finally alleges that counsel were inadequate in their preparation of Granger’s
mother, Vallire. (#44 at 111–113). Granger alleges not only that Vallire “act[ed] inappropriately
on the stand” by blowing kisses and winking at Granger, but “her testimony was more damaging
and offensive than it was helpful.” (Id. at 111). Citing almost exclusively to Vallire’s answers
during the State’s cross-examination, he characterizes Vallire’s testimony as having “expressed
no remorse for the harm her son had caused, little sympathy for the victims, and absolutely no
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respect for the jury’s guilt-phase verdict.” (Id. at 112). Granger alleges that, had counsel
prepared Vallire to testify, “[t]hey would have prepared Ms. Ozene to respond to these questions
in a way that would not alienate and offend the jury” or would have decided not to call such a
“devastatingly damaging witness” at all. (Id. at 113).
Granger, however, offers no evidence in support of his assertions—that trial counsel would
not have called Vallire at all, that the jury was offended, or that counsel could have done anything
to keep Vallire from behaving “inappropriately” on the stand. See Richter, 562 U.S. at 110
(counsel cannot be faulted for “failing to prepare for what appear to be remote possibilities”).
Granger’s assertions on these issues are conclusory and should be denied. Miller, 200 F.3d at
282. Moreover, Vallire’s testimony was helpful. She expressed her shock at finding out about
Granger’s involvement in the shooting, 27 RR 97; expressed empathy and sadness for Sebolt’s
family, based on her experience of having her own daughter murdered, id. at 98; bolstered
Granger’s testimony that he was driven to that point by Claudia’s manipulations of Samantha, id.
at 99–100; testified that Claudia and her brother beat her and put her in a coma for more than four
days, id. at 100; testified that her heart nevertheless dropped when she heard Samantha had been
shot, id. at 101; opined that Granger “wasn’t in his right mind” when he shot at people because
“he wouldn’t do that,” id. at 102; expressed that the family had been feeling under pressure for
over four years preceding the offense, id.; and stated that she never foresaw this coming, id. at
103.
There is nothing to indicate that any additional preparation would have changed Vallire’s
testimony or made counsel decide not to call her. See Murphy, 737 F. App’x at 704–05. Indeed,
most of her testimony during cross-examination was simply cumulative of Granger’s testimony:
that he did not kill Sebolt, that the police did, and that the family did not like Claudia for using
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Samantha against them. (See #44 at 112) (citing to 27 RR 103, 108–09, 101); see also 28 RR 56
(Granger saying the police killed Sebolt). Granger misconstrues Vallire’s testimony regarding her
support of Granger—she was not “attempt[ing] to justify her son’s actions,” (#44 at 112), when
she said she “stand[s] behind what he did,” see 27 RR 106. She merely meant that “he is [her]
son,” and while she does not “excuse him for what he did,” she was going to be there for him.
Id. at 107. Whether such support was typical, it is far from “devastating” for the jury to hear that
a mother still loves her son even if he has been convicted of a heinous act. See also 27 RR 103
(his mother stating that she “love[s her] son” and was “supporting him 150 percent”). Thus, even
if Granger could show any deficiency in counsels’ decision to call his mother, he fails to show any
prejudice, especially in light of the overwhelming aggravating evidence regarding the crime.
Granger is not entitled to habeas relief on this claim.
5.
IAC of State Habeas Counsel
In addition to attacking his trial counsel for their investigation and preparation of witnesses
presented at the punishment phase of the trial, Granger maintains that his state habeas counsel
were ineffective for failing to raise his inadequate investigation and preparation of witness claims
on state habeas review. (#44 at 116). Granger contends that state habeas counsel “identified
claims contesting trial counsels’ failure to conduct adequate investigation and preparation of lay
witnesses, Sias and Gonzale[s]” (#44 at 116); however, state habeas counsel did not raise the claim
in their state habeas briefing. Granger concedes that a claim for failure to prepare Sias and
Gonzales adequately for trial was not raised in Granger I and was dismissed as an abuse of the
writ in Granger II. (Id.).
Insofar as Granger argues his state habeas corpus counsel should have raised an ineffective
assistance of trial counsel claim regarding the inadequate investigation and preparation of lay
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witnesses, Sias and Gonzales, Granger fails to present any argument or evidence that: (1) his
underlying ineffective assistance of trial counsel claim is substantial, (2) his habeas counsel was
ineffective for failing to present the claim, and (3) he suffered actual prejudice. Beatty v.
Stephens, 759 F.3d 455, 465-66 (5th Cir. 2014) (“To succeed in establishing cause under Trevino
and Martinez, the petitioner must show: (1) that his claim of ineffective assistance of counsel at
trial is ‘substantial’ (i.e., ‘has some merit’); and (2) that his habeas counsel was ineffective for
failing to present those claims in his first state habeas application.”), cert. denied, 575 U.S. 1011
(2015); Hernandez, 537 F. App’x at 542 (holding that an inmate must show actual prejudice by
“establish[ing] 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.”).
Courts recognize that habeas 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.” Vasquez, 597 F. App’x at 780 (quoting Robbins, 528 U.S. at
288). In order to show ineffective assistance, the petitioner must demonstrate that “a particular
nonfrivolous issue was clearly stronger than issues that counsel did present.” Id. Granger does
not provide any showing that his failure to investigate and prepare lay witnesses claim was clearly
stronger than the issues that were presented in Granger I. The court must give deference to state
habeas counsels’ strategy as to which issues to present to the state habeas court. Harrington, 562
U.S. at 105 (“Even under de novo review,” a court would be “most deferential” to such strategic
choices, because “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.”). Granger’s failure to provide analysis on this issue negates his claim.
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Additionally, in Section G.4.c., supra, the court addresses Granger’s claim that his trial
counsel were ineffective for failing to prepare Sias and Gonzales adequately. Granger failed to
establish that his claim was substantial. Moreover, Granger failed to present any argument or
evidence that he suffered actual prejudice by his state habeas counsels’ decision not to include the
investigation and preparation of lay witnesses claim in his state habeas briefing. Granger’s
ineffective assistance of state habeas counsel claim is denied.
6.
Counsels’ Punishment-Phase Closing Arguments
Granger next claims that his trial counsel provided ineffective assistance in presenting
closing argument. He contends that counsel unreasonably “painted an unsympathetic picture of
[Granger]” by “emphasizing how eyewitnesses rightfully wanted to kill him, characterizing his
conversations from prison as bigoted, vulgar, and profane, and belittling and dehumanizing their
client.” (#44 at 113–15). Granger argues that counsel “did very little to present the case that he
was worthy of life, rather than death[,]” and in fact, they never “directly asked the jury to spare
their client’s life.”
(Id.).
Granger argues that trial counsels’ tactics—dehumanizing their
client—violated ethical rules and deprived him of competent counsel. (Id. at 115).
When examining counsel’s closing argument to determine whether it was proper, the court
must consider the closing argument in its entirety. Riley, 339 F.3d at 317. Here, the record
clearly refutes Granger’s allegation, as trial counsel explicitly and emphatically asked the jury to
impose a life sentence on Granger. See, e.g., 29 RR 18 (Makin arguing that Granger is not insane
or mentally ill, but “he’s an individual not like us, not like you, not like me,” and he should
therefore “be removed from normal society” and “locked up and handled by professionals, people
with training”), 29 RR 21 (Cribbs discussing the story of Cain and Abel and how God could have
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killed Cain, but instead he chose “to banish him away from the people,” and “that’s what we’re
gonna ask you to do”). In his final plea to the jury, Cribbs argued:
I’m gonna ask if you will vote life, life without parole, life in the penitentiary under,
as James said, under proper supervision. He hadn’t committed an act of violence
other than this one thing. Now, he is not a truthful person, I can tell you that, ‘cause
it’s obvious from the stand . . . . But we’re still gonna ask you vote to give this young
man life in the penitentiary, even though he doesn’t want it, because he does not want
to serve a life sentence in the penitentiary. He wants you to vote death, and I’m gonna
ask not to vote death. Consider him, consider his family, his upbringing, his
education, and you’ve heard it all. But when you’re finished and you go in there and
make this deliberation, you vote to give this man life in the penitentiary, life without
parole. He’ll never be with his family. He’ll be controlled completely for the rest of
his life.
29 RR 22. Granger’s allegation that counsel never argued that Granger was worthy of life is
inaccurate. Granger cannot show deficiency or prejudice by counsels’ making the very argument
for life that he says they should have made. Cf. Fields, 761 F.3d at 456 (“Thus, while Fields
contends that his trial counsel should have found and presented precisely this type of [mitigation]
evidence, the record reflects that his trial counsel did so.”).
Granger fails to show that his counsels’ argument—considered in its entirety—was
improper. His mere disagreement with counsels’ tactic—to embrace the vulgar and profane
language Granger and his family used but to highlight that such language did not translate into
violent action—is not sufficient to establish ineffectiveness. See Richter, 562 U.S. at 110
(“Strickland, however, calls for an inquiry into the objective reasonableness of counsel’s
performance, not counsel’s subjective state of mind.”). He cites no case law supporting his
argument that counsels’ closing argument strategy was in any way improper. (#44 at 115).
Instead he cites the American Bar Association (“ABA”) Guidelines and three cases that are largely
irrelevant to the factual bases of his claim. (Id.) (citing Buck v. Davis, 580 U.S. 100 (2017);
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Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997), cert. denied, 523 U.S. 1133 (1998); and United
States v. Swanson, 943 F.2d 1070 (9th Cir. 1991)).
The Supreme Court has soundly rejected the notion that the ABA’s guidelines are an
“inexorable command with which all capital defense counsel must fully comply” to be
constitutionally effective. Bobby v. Van Hook, 558 U.S. 4, 17 (2009) (per curiam) (internal
quotation marks omitted). In any event, Buck has nothing to do with counsels’ closing argument,
see 580 U.S. at 104 (IATC claim for defense expert who offered his opinion that defendant “was
statistically more likely to act violently because he is black”); Rickman, 131 F.3d at 1156, is a
claim of counsel abandonment under United States v. Cronic, 466 U.S. 648 (1984); and Swanson
deals with an attorney who conceded in his guilt-phase closing argument “that there was no
reasonable doubt regarding the only factual issues in dispute,” 943 F.3d at 1072. In short,
Granger offers no legal support for his claim that counsel was ineffective in their punishmentphase closing arguments, and his claim is conclusory at best. This claim is denied.
H.
Claim 9 (IATC): Trial counsels’ failure to investigate and present Samantha
Jackson’s diary or other available documentary evidence, to rebut her claim that
her father sexually mistreated her, deprived Granger of the effective assistance of
counsel at the penalty phase.
Granger complains that trial counsel was ineffective for failing to locate or present
Samantha’s physical diary as rebuttal evidence to the State’s future dangerousness case. (#44 at
116–24). Samantha’s diary did not contain any entries of sexual abuse or mistreatment of
Samantha by Granger. Although the physical diary was not present at trial, the contents of the
diary were presented through multiple witnesses. Despite the contents being presented, Granger
maintains that his counsel were ineffective for not locating the physical diary.
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The state court record shows that Granger raised this IAC claim regarding the location of
Samantha’s physical diary in Granger I. SHCR-01.Supp.2 at 190, 194–202, 329. The TCCA
found that Granger’s counsel were not ineffective in failing to find the physical diary. Ex parte
Granger I, 2017 WL 3379285, at *4. This claim is exhausted and is not procedurally barred.
The Director contends that Granger fails to demonstrate that, on the record before it, the
state court’s rejection of his IAC claim was unreasonable, and his claim should be denied. (#53
at 181–88). The Director further asserts that Granger’s new evidence and argument are barred
by Pinholster. (Id. at 181–83).
1.
Granger’s Newly-Presented Evidence is Barred by Pinholster
In support of his claim regarding ineffective assistance of counsel as it pertains to
Samantha’s physical diary, Granger proffers new evidence that was not presented to the state
court. Specifically, he submits: (1) a declaration from his state habeas counsel Derek VerHagen
(“VerHagen”) (A0365–66); (2) a declaration from Kimler, Granger’s defense attorney in his
sexual assault trial (A0377); (3) excerpts from the third volume of the reporter’s record from
Granger’s sexual assault trial (A0722–43); (4) the State’s exhibits from Granger’s sexual assault
trial (A0744–68); and (5) a March 23, 2012, offense report from the Jefferson County Sheriff’s
Office (A0835).
Relying on the newly-presented declaration from state habeas counsel, Granger improperly
attempts to show that the state court’s adjudication of this IAC claim was unreasonable. (See,
e.g., #44 at 124) (relying on newly-presented declaration to argue that state habeas counsel could
have presented testimony to undermine the state court’s factual findings regarding trial counsel).
Granger argues that his new evidence demonstrates that the state court’s decision rested on an
unreasonable determination of the facts. (See #44 at 124) (citing 28 U.S.C. § 2254(d)(2)).
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Pinholster, however, prohibits using evidence introduced for the first time in federal court to
undermine the reasonableness of the state court’s adjudication. See Pinholster, 563 U.S. at 181
(federal habeas review “is limited to the record that was before the state court that adjudicated the
claim on the merits”); Smith v. Cain, 708 F.3d 628, 638 (5th Cir.) (permitting an evidentiary
hearing only after “the court determined that the state courts had violated clearly established law
. . . based solely on the state court record”), cert. denied, 571 U.S. 855 (2013); Blue v. Thaler,
665 F.3d 647, 656 (5th Cir. 2011) (“Pinholster prohibits a federal court from using evidence that
is introduced for the first time at a federal-court evidentiary hearing as the basis for concluding
that a state court’s adjudication is not entitled to deference under [28 U.S.C.] § 2254(d).”), cert.
denied, 568 U.S. 828 (2012). “Section 2254(d)(2) identifies the record to be used in reviewing
a state court’s decision by requiring that a federal court consider ‘the facts in light of the evidence
presented in the State court proceeding.’” Wardrip v. Lumpkin, 976 F.3d 467, 473 (5th Cir.
2020). Thus, whether Granger is proceeding under Section 2254(d)(1) or (d)(2), he is prohibited
from using this new evidence to undermine the state court’s adjudication.
Granger also proffers new argument in addition to his new evidence. He contends that his
counsel were ineffective for not securing the diary and “other evidence” because counsel could
have impeached Samantha’s credibility “with records” that would have shown “that her allegations
against Mr. Granger’s brother [Lyndon] were also false.” (#44 at 117). In his first state habeas
application, Granger I, Granger does not discuss or describe any “records” that demonstrated that
the sexual abuse allegations against Lyndon were false. See 1 SHCR-01 at 72–80. Granger does
not cite any records in his federal petition or discuss the allegations against his brother, making
it difficult to determine whether such argument or records were presented to the state court. Aside
from being inadequately briefed and conclusory, Granger is prohibited from using this new
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argument to undermine the state court’s adjudication. See Pinholster, 563 U.S. at 181; see also
Robertson, 715 F. App’x at 392. Moreover, the argument has not been fairly presented to the
highest state court and is thus unexhausted. Bagwell v. Dretke, 372 F.3d 748, 754 (5th Cir.)
(holding that where petitioner advances in federal court an argument based on a legal theory
distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement),
cert. denied, 543 U.S. 989 (2004). Even if Granger’s new argument were a new, defaulted claim,
it is not substantial for purposes of Martinez. Granger’s attempts to circumvent the state court’s
adjudication is denied.
2.
The State Court’s Adjudication was Reasonable
Granger alleges that, though counsels’ strategy appeared to be attacking the credibility of
Samantha’s sexual assault allegations against Granger, they failed to locate or present the physical
diary she kept during the years she claimed the sexual assault(s) occurred. (#44 at 116–24).
Granger argues that counsel could have used the diary to impeach Samantha with her own
contemporaneous statements or to provide mitigating evidence of Granger’s positive relationship
with his daughter. (Id. at 117).
Granger contends that counsel “knew about the diary’s existence and importance
throughout the pretrial preparation period.” (Id.) In their affidavits before the state court
(Granger I), trial counsel described their investigative efforts. They stated that neither Granger
nor the trial judge had the diary or otherwise knew where the diary was, despite Granger’s prior
defense attorney Kimler’s insistence that the court had a copy of it. SHCR-01.Supp.2 at 177, 182.
Counsel searched the court file and were unable to locate it.
Id.
They then extensively
interviewed Kimler as to the diary’s contents. Id. As found by the state court, Kimler in fact
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related the contents of the diary to counsel. Ex parte Granger I, 2017 WL 3379285, at *4.
Nothing demonstrates that counsel were unreasonable in their efforts to locate the diary.
More importantly, counsel cannot be deficient because they actually did the very thing
Granger now says he wishes trial counsel had done: they used the contents of the diary to impeach
the credibility of Samantha’s assertions and to establish that a good relationship existed between
her and her father as mitigation evidence. The contents of the diary were elicited through
testimony at trial. Contrary to Granger’s argument that counsel “had to rely solely on testimony
by Mr. Granger and his family” to implement the above strategy, (#44 at 119), trial counsel used
multiple witnesses to bring out such evidence.
For example, during Kimler’s guilt-phase
testimony, counsel elicited much of the evidence at issue: that the diary was helpful to, and in fact
exculpatory for, Granger, 23 RR 175–76; that Kimler intended to use it to cross-examine
Samantha at the sexual abuse trial on the day the shooting occurred, id. at 176; that there was
nothing in the diary about the allegations she was making at the sexual abuse trial, id. at 182; and
that, in it, she stated, “My dad had been both a father and a mother to me and I love him very
much,” id. (See #44 at 120–21) (diary did not suggest that Granger sexually abused his daughter
and described Granger as her “Mother and Dad and . . . Friend”). Additionally, Sewell, a friend
of Samantha’s, testified that she had read the diary and that, while it said that Samantha hated her
mom and was being teased at school, the only thing she said about Granger was that she loved
him. 23 RR 125–26. Sewell also confirmed that she never witnessed any inappropriate behavior
between Granger and Samantha. Id. at 126. Granger’s mother, Vallire, also testified that the
diary said nothing bad about Granger and only said that Samantha loved her father. Id. at 131.
Granger himself confirmed that the diary said a lot of good things about him. Id. at 20.
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Though much of this evidence was not repeated during the punishment phase, the jury was
undoubtedly free to consider it. See 29 RR 5 (instructing jury that it is “necessary now for you
to determine from all the evidence in this case” the answers to the special issues (emphasis
added)); see Pinholster, 563 U.S. at 198 (“Here, the same jury heard both the guilt and penalty
phases and was instructed to consider all the evidence presented.” (citing to Woodford, 537 U.S.
at 25, for proposition that state habeas court in that case “had correctly considered mitigating
evidence introduced during the guilt phase”)). Thus, the idea that Granger was a good father to
Samantha, certainly one whom she loved very much and considered “both a mother and father”
was appropriately before the jury as mitigating evidence. Given that the evidence Granger faults
trial counsel for not presenting through the actual diary was, in fact, presented, the state court
reasonably held that counsel were not deficient and that Granger had failed to show any resultant
prejudice. Ex parte Granger I, 2017 WL 3379285, at *4; see Pinholster, 563 U.S. at 200–01
(finding no reasonable probability of a different result, in part, because “[t]he ‘new’ evidence
largely duplicated the mitigation evidence at trial”); Fields, 761 F.3d at 456 (counsel cannot be
deficient for finding and presenting the exact type of evidence petitioner claims he should have).
Granger attempts to show the unreasonableness of the state court’s opinion in two, largely
procedural, ways. First, he argues that the state court never resolved “key contested factual
questions” about whether counsel knew where the diary was, making the state court’s decision
unreasonable under § 2254(d)(2). (#44 at 122–24). Second, he argues that, because the state trial
court issued no conclusion of law on this claim, there was no merits adjudication to which to
defer. (Id. at 124). He argues these reasons entitle him to de novo review. Granger is mistaken
on both counts.
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As to his first argument, the Fifth Circuit has held that a state court’s decision that “there
were no material, controverted facts still to be resolved” is “a legal conclusion, not a
‘determination of the facts in light of the evidence presented in the State court proceeding,’ as
meant by [§] 2254(d)(2).” Wardrip, 976 F.3d at 476. Thus, Granger’s attempt to argue that “the
state habeas court did not know enough facts to be reaching a decision on the claim” has been
squarely rejected by the Fifth Circuit as an inappropriate attack under 28 U.S.C. § 2254(d)(2).
As to his second argument, Granger is incorrect that the TCCA “made no legal findings of its
own[.]” (#44 at 123). The TCCA noted that the state trial court had entered no conclusion of law
with respect to this claim, Ex parte Granger I, 2017 WL 3379285, at *3, but then expressly held
that Granger had failed to meet his burdens under Strickland, id. at *4. The TCCA, moreover,
denied Granger’s application “[b]ased upon the trial court’s findings and conclusions that we have
adopted, [its] own review of the record, and [its] independent findings and conclusions.” Id. at
*5 (emphasis added). Even if the TCCA had not explicitly held that Granger failed to meet his
burdens under Strickland, its opinion would still be entitled to deference under § 2254(d)(1). See
Richter, 562 U.S. at 102; see also Langley v. Prince, 890 F.3d 504, 515 (5th Cir. 2018) (“[U]nder
our circuit’s interpretation of the ‘unreasonable application’ clause, we review only the
reasonableness of the state court’s ‘ultimate legal conclusion,’ as distinct from the thoroughness
or quality of its written opinion.”).
Granger fails to demonstrate that the state court’s fact findings were unreasonable.
Granger’s primary argument that the state court did not resolve the “disputed” issue of whether
counsel knew where the diary was located is irrelevant, (#44 at 124), given that the state court
made no findings regarding counsels’ knowledge of the diary’s location, instead focusing on the
fact that counsel interviewed Kimler about the diary and learned of its contents through him. Ex
145
parte Granger I, 2017 WL 3379285, at *4. Thus, Granger’s attempt to establish this “dispute,”
largely using Pinholster-barred evidence to show that counsel never talked to Kimler and could
have easily found the diary in the State’s files, does not undermine the state court’s decision. (See,
e.g., #44 at 124) (citing to Kimler’s declaration, executed five years after trial, for assertion that
counsel never asked him about the diary). Whether counsel could have located the diary itself is
effectively rendered moot when considering, as discussed above, that the contents of the diary
were elicited at trial. In short, even considering Granger’s Pinholster-barred evidence, he fails
to demonstrate that the state court’s decision was unreasonable. Habeas relief is not warranted
on this claim.
I.
Claim 10 (IATC): Granger’s right to due process was infringed by improper
prosecutorial argument at penalty phase summation, and his right to the effective
assistance of counsel was infringed by the failure of trial counsel to object.
Granger challenges the State’s punishment-phase closing argument as improper. (#44 at
125–27). Granger specifically cites to five instances of allegedly improper argument made by the
prosecutors:
(1)
[I]f you read more of the Bible, there’s also, ‘Eye for an eye,’ 29 RR 25;
(2)
Proverbs 21:15 says: When justice is done, it brings joy to the righteous and
terror to the evildoers, 29 RR 30;
(3)
I suspect you’ve made up your minds as of last week, and everything that
happened this week just confirmed your opinion, 29 RR 25;
(4)
He is a very angry, evil man. And when he doesn’t get his way, when he
loses control—he’s gonna hurt somebody, 29 RR 39; and
(5)
My God, don’t you understand that his whole family’s that way? It’s
horrible. It’s like a—it’s like a cancer. It’s scary, 29 RR 40.
(#44 at 125–26). Granger alleges that these comments violated his due process rights, and that
his trial counsel was ineffective for failing to object to them. (Id. at 125–26).
146
The Director responds that the state court reasonably rejected Granger’s IATC claim
premised on counsels’ failure to object to the State’s punishment-phase closing argument. (#53
at 188–202). The Director also asserts that Granger fails to demonstrate that the state court’s
decision was unreasonable based on the record before it. The Director points out that Granger’s
new argument cannot be considered, as it is barred by Pinholster. The Director further contends
that Granger’s independent due process claim is procedurally barred and that he fails to establish
any exception to the default. (Id.). The Director urges that Granger’s claim be denied.
1.
Granger’s Due Process Claim is Procedurally Barred
Granger raised his due process claim predicated on improper closing argument in his
second-in-time state habeas application that was dismissed by the TCCA as an abuse of the writ.
See SHCR-02 at 115–17; Ex parte Granger II, 2020 WL 915434, at *1. Granger cannot overcome
the default because Martinez does not apply to the default of a non-IATC claim, and he does not
argue otherwise. See Davila, 137 S. Ct. at 2063. The due process claim is denied as procedurally
barred, and the court may not reach the merits of the claim.
2.
The State Court Reasonably Rejected Granger’s IATC Claim
a.
Granger’s New Arguments are Barred by Pinholster
Granger admits that state habeas counsel raised an IATC claim that “included some . . . but
not others” of the instances of allegedly improper argument that he now raises. (#44 at 126). Of
the five prosecutorial arguments Granger relies on in his federal petition, he arguably raised only
two of them in his state case: (1) a reference to the Biblical passage about an eye for an eye, 29
RR 25; and (3) a reference pertaining to the jury making up its mind based on the evidence
presented, 29 RR 25. Granger now points to three additional instances—Numbers 2, 4, and 5
above—to which he alleges counsel should have objected, and at least one additional argument as
147
to why the arguments were improper. These three additional instances were not raised in the state
court below.
Because this claim was adjudicated, the state court’s conclusion that Granger failed to meet
his burdens under Strickland is entitled to deference by this court. See Ex parte Granger I, 2017
WL 3379285, at *4. Granger’s attempt to rely on Martinez to excuse the non-presentation of his
new arguments is unavailing because Martinez does not apply to adjudicated claims. Instead,
Granger’s “new” arguments are barred by Pinholster. See id.; see also Robertson, 715 F. App’x
at 392 (new record-based assertions raised in federal court to show that the state court’s
adjudication was unreasonable were barred by Pinholster); cf. Lewis, 701 F.3d at 790 (exhaustion
is not an escape hatch from § 2254(d)).
b.
The State Court Reasonably Denied Granger’s Claim
Granger fails to demonstrate that counsel was unreasonable for not objecting to the State’s
closing argument. Initially, with respect to the two exhausted instances of which he complains,
(see #44 at 125) (citing to 29 RR 25 for “eye for an eye” and jury pre-judgment at guilt
comments), Granger is responsible for any failure by trial counsel to object. Cf. Schriro, 550
U.S. at 476–77 (petitioner’s behavior from trial—interrupting repeatedly when counsel tried to
proffer mitigating evidence and refusing to allow counsel to proffer employment
evidence—demonstrates petitioner would have undermined presentation of any mitigating
evidence; “because of his established recalcitrance, [petitioner] could not demonstrate” Strickland
prejudice if granted a hearing).
In their state-court affidavits, trial counsel asserted, and the record supports, that they did
not object during the State’s closing because they were being distracted by Granger. SHCR01.Supp.2 at 178, 183. As early as the first comment about which Granger complains—regarding
148
the “eye for an eye” statement—Granger began audibly laughing during the State’s argument. See
29 RR 25 (“I’d submit to you that Granger is worse than Cain and if you read more of the Bible,
there’s also, ‘Eye for an eye.’ THE DEFENDANT: (Laughing).”). Granger continued to
interrupt the State’s argument many times, including interjecting his disagreement with the State’s
characterization of him as a molester and “display[ing] to the jury a legal pad with the word
‘Death’ written on it.” See Ex parte Granger I, 2017 WL 3379285, at *3; see also 29 RR 27
(laughing), 28 (laughing and parroting the State’s argument), 29 (“Huh-uh.”), 32 (“I’m no
molest[e]r.”), 33 (calling prosecutor a liar), 42 (court stating it admitted into the record legal pad
with word “death” on it).
“After he interrupted the State’s argument several times and disregarded the trial judge’s
admonitions to remain quiet, [Granger] was removed from the courtroom and taken to a holding
cell, where he stayed for the rest of the argument.” Ex parte Granger I, 2017 WL 3379285, at
*3; see 29 RR 33–34. Granger’s removal did not put an end to the distractions, however, as he
continued to make noises from the holding cell that were loud enough to be reflected on the
record. See Ex parte Granger I, 2017 WL 3379285, at *3 (“While the prosecutor continued his
argument, [Granger] made loud noises from the holding cell that were audible inside the
courtroom and prompted a response from courtroom bailiffs.”); see also 29 RR 37. Granger must
bear responsibility for distracting counsel from their responsibilities. See Carpenter v. Vaughn,
296 F.3d 138, 150 (3d Cir. 2002) (finding no deficiency in counsel’s failure to object because
counsel stated that defendant “was talking to him and distracted him when the testimony in
question came in”).
Even aside from Granger’s distracting behavior, he fails to establish that his counsels’ lack
of objection was deficient because he does not show that any objection would have had merit. See
149
Ries v. Quarterman, 522 F.3d 517, 530 (5th Cir.) (“In order to show that counsel was deficient
for failing to object under the first prong of Strickland, the objection must have merit.” (citing
Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir.), cert. denied, 551 U.S. 1193 (2007))), cert.
denied, 555 U.S. 990 (2008). Under federal due process, “[i]t ‘is not enough that the prosecutors’
remarks were undesirable or even universally condemned.’” Darden v. Wainwright, 477 U.S.
168, 181 (1986) (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). Rather,
“[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’”
Id. (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Granger’s burden here is two-fold: he “must not only
show [1] improper jury argument rising to the level of a constitutional impairment of a
fundamentally fair trial, but he must also show [2] that his trial counsel was constitutionally
ineffective in failing to object to the argument[.]” Adams v. Quarterman, 324 F. App’x 340, 353
(5th Cir. 2009) (quoting Bridge v. Lynaugh, 838 F.2d 770, 774 (5th Cir. 1988)). The latter is
subject to Strickland’s presumption of competence, but “the nature of [Granger]’s particular
argument here requires him to overcome a substantial barrier to relief: ‘A decision not to object
to a closing argument is a matter of trial strategy.’” Id. (quoting Drew v. Collins, 964 F.2d 411,
423 (5th Cir. 1992), cert. denied, 509 U.S. 925 (1993)).
Granger does not overcome the state court’s determination that trial counsel was not
deficient for failing to object. SHCR-01.Supp.2 at 197. With respect to an “eye for an eye,”
Granger minimizes the fact that trial counsel, during their closing argument, referenced the Bible
and the first murderer in biblical history—Cain killing Abel. (See #44 at 125 n.10) (attempting
to distinguish trial counsel’s invocation of the Bible from the State’s); see also 29 RR 21–22.
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Counsel specifically implored the jury that, like God with Cain, they should not kill
Granger but instead banish him from his people and his family. 29 RR 21–22. The prosecutor’s
biblical references, therefore, were invited by the defense counsels’ closing argument and were
a fair response to the defensive argument. See 29 RR 25 (“And Mr. Cribbs cited the Bible
and . . . perhaps Cain wasn’t executed because Cain had remorse. I’d submit to you that Granger
is worse than Cain and if you read more of the Bible, there’s also, ‘Eye for an eye.’”). Such
responsive comments are not improper under state or federal law. See Ries, 522 F.3d at 530 n.7
(“[W]e cannot conclude that the statements so infected the trial with unfairness as to make the
resulting conviction a denial of due process, particularly where, . . . the prosecutor’s comments
were to some extent invited by defense counsel’s summation.” (citing Darden, 477 U.S. at 182));
Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (proper jury argument falls into
four categories, one of which is a response to argument of opposing counsel); see also Hathorn
v. State, 848 S.W.2d 101, 117 (Tex. Crim. App. 1992) (comment that defendant “knows he
deserves [the death penalty]” invited by defendant and an answer to his opening statement). Thus,
a conscious decision not to object to these comments was strategically reasonable under the
circumstances.
Granger cites to Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2000), for the proposition
that arguments based upon scripture are “clearly” improper. (#44 at 111). While Sandoval cites
to several other courts, 241 F.3d at 777, it does not reference any Fifth Circuit opinion, and
Granger has not cited any authority in this circuit to support that argument. He also ignores that
the question is not merely whether the State’s comments were improper, but whether they had
substantial and injurious effect on his trial and whether trial counsel was deficient for failing to
object to them. See Adams, 324 F. App’x at 353.
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Regardless, the comments deemed improper in Sandoval are distinguishable from those
made here. In Sandoval, the defense used the phrases “‘playing God’ and ‘an eye for an eye’ in
the context of a secular argument against vengeance” but “did not invoke religious authority to
support the result he advocated.” 241 F.3d at 778. The state, by contrast, argued to the jury that
“God sanctioned the death penalty for people like Sandoval who were evil and have defied the
authority of the State,” “that by sentencing Sandoval to death, the jury would be ‘doing what God
says,’” and that “destroying his mortal body might be the only way to save Sandoval’s eternal
soul.” Id. at 776. The Ninth Circuit found these comments improper and, given defense
counsel’s primarily secular argument, “not merely a fair response to comments in defense
counsel’s closing argument.” Id. at 777. Indeed, the state’s argument “was strong medicine”
with a clear message that actually prejudiced Sandoval’s defense: “those who have opposed the
ordinance of God should fear the sword-bearing state, whose task, as an avenging minister of God,
is to bring wrath upon those who, like Sandoval, practice evil.” Id. at 778. Here, the comments
made by the State were direct responses to defense counsels’ suggestion that the jury follow God’s
punishment and banish, but not kill, Granger, and the comments did not suggest that the Bible
dictated imposition of the death penalty like those in Sandoval did. See Ward v. Dretke, 420 F.3d
479, 497 (5th Cir. 2005) (finding counsel deficient for not challenging State’s “suggesti[ons] that
Ward’s embrace of faith dictated that he be judged by Biblical standards”), cert. denied, 547 U.S.
1040 (2006). Granger fails to demonstrate that, under these circumstances, the state court was
unreasonable in holding that counsel was not deficient. See SCHR-01.Supp.2 at 197; Strickland,
466 U.S. at 688.
Furthermore, Granger does not show that the state court’s determination of no prejudice
was unreasonable. Strickland, 466 U.S. at 694; see Richter, 562 U.S. at 112 (The “likelihood of
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a different result must be substantial, not just conceivable.”). Because trial counsel invoked a
biblical reference in support of mercy, efforts to limit the prosecution’s reply argument could have
been viewed unfavorably by the jury and undermined the defensive efforts to invoke biblical
mercy. Given Granger’s disruptive behavior during closing arguments, the jury likely already
viewed Granger with disfavor. Any action counsel took to limit the state’s closing argument
would have had little or no positive impact in this situation. CR.Supp.3 at 6 (showing jury had
reached verdict by 12:29 p.m. the day closing arguments were presented); see Ward, 420 F.3d
at 499–500 (state habeas court holding that no prejudice resulted from failure to object to improper
comment, “given the severity and number of the offenses and the strength of the evidence” against
petitioner, was not objectively unreasonable); cf. Schriro, 550 U.S. at 476–77 (because of
petitioner’s “established recalcitrance, [petitioner] could not demonstrate” Strickland prejudice).
Granger also fails to demonstrate the unreasonableness of the state court’s rejection of his
complaint regarding the State’s suggestion of the jury’s predetermination of punishment. (See #44
at 125) (“I suspect you’ve made up your minds as of last week, and everything that happened this
week just confirmed your opinion.” (citing 29 RR 25)). Aside from the responsibility Granger
bears for distracting counsel right before the contested comment, see 29 RR 25, Granger fails to
demonstrate that such comment was improper. He argues that the comment “affirmed for the jury
the unconstitutional idea that automatically imposing the death penalty upon a finding of guilt is
proper” and that it “improperly interfered with [Granger]’s right to a separate penalty phase where
mitigating evidence could be considered.” (#44 at 125) (citing Gregg v. Georgia, 428 U.S. 153
(1976); TEX. CODE CRIM. PROC. ANN. art. 37.071).
On this point, Granger distorts the record. The prosecutor made the complained-of
statement on Tuesday, May 7, 2013. 29 RR 1. On Monday, May 6, 2013, the only witness the
153
jury heard from was Granger. See 28 RR 3. Thus, when the State said “everything that happened
this week,” it was referring to the jury’s having heard Granger’s testimony, in which he had
several outbursts on the stand and directed profanities at the State, the court, and the jury. See
28 RR 61–62. Moreover, the prior week, or what the State contemporaneously referred to as “last
week,” 29 RR 25, the jury heard three full days of punishment evidence, including the entirety
of the State’s case-in-chief and nearly all the defense’s case. See 1 RR 28–31 (State’s punishment
case began Wednesday, May 1, 2013, and defense presented all witnesses except Granger on
Friday, May 2, 2013). With the above context, the State’s argument is clear: “I suspect you’ve
made up your minds as of last week [when you heard all of the State’s punishment case and almost
all of the defense’s mitigation case], and everything that happened this week [namely, Granger’s
obscene outburst on the stand] just confirmed your opinion.”
There is nothing remotely
inappropriate in this argument, much less anything approaching the level of a constitutional
impairment of a fundamentally fair trial, and any objection would have been futile.
Granger fails to demonstrate any deficiency or prejudice from this event. Granger falls far
short of establishing that the state court’s rejection of his claim was unreasonable, and he is
therefore not entitled to habeas relief.
3.
Granger’s New Arguments also Fail
Even considering Granger’s new arguments, he fails to demonstrate the unreasonableness
of the state court’s adjudication. With respect to the State’s reference to Proverbs, (see #44 at
111) (citing 25 RR 30), Granger does not demonstrate any ineffectiveness for the same reasons
listed above: counsel was being distracted by Granger’s repeated interjections, for which Granger
must bear the blame, see SHCR-01.Supp.2 at 178; 29 RR 29, 32; and the State’s argument was
yet another direct response to counsels’ own invocation of the Bible, 29 RR 30 (“[Defense
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counsel] cited and used and misrepresented the word of God for his own purposes; but Proverbs
21:15 says: When justice is done, it brings joy to the righteous and terror to the evildoers.”). See
Ries, 522 F.3d at 530 n.7 (citing Darden, 477 U.S. at 182); Freeman, 340 S.W.3d at 727. Thus,
the state court’s conclusion that counsel was constitutionally effective was reasonable.
The State’s reference to Granger as an “angry, evil man” and to Granger and his family
as a “cancer” (#44 at 125) occurred after Granger was removed from the courtroom. Granger’s
removal, however, along with the fact that he had been displaying the word “Death” to the jury
during the State’s argument as observed first-hand by the jury, provided support for the argument
that Granger was “a very angry, evil man. And when he doesn’t get his way, when he loses
control—he’s gonna hurt somebody.” 29 RR 39. Considering that Granger displayed no remorse
for Sebolt’s death, repeatedly denied killing her, had an angry outburst while testifying in his own
defense the day before, see 28 RR 61–63, and then had to be forcibly removed from the courtroom
during argument, 29 RR 33, the State’s argument could also be seen as both a summation of, and
a reasonable deduction from, the evidence and Granger’s behavior while on trial for capital
murder. See, e.g., 29 RR 39 (“The only reason he hadn’t done [violent acts] in the courtroom is
‘cause we’ve got these good bailiffs (indicating), and you’ve seen it yourselves. He is a very
angry, evil man.”); Freeman, 340 S.W.3d at 727 (proper jury argument falls into four categories:
(1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) a response to
argument of opposing counsel; and (4) a plea for law enforcement); see also Hathorn, 848 S.W.2d
at 117. To the extent that such comment was nevertheless improper, it was limited and did not
render the trial fundamentally unfair. Counsels’ decision not to object at this late stage, after their
client had been removed for such disrespectful behavior, was reasonable. Granger fails to
demonstrate that the state court’s adjudication was unreasonable.
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Finally, the State’s “cancer” comment was made in the following context:
What have you heard that reduces this man’s moral blameworthiness? That’s
what Question No. 2’s all about. What have you heard?
The facts of the crime? The fact that he’s a child molester? The fact that he’s
a murderer? The fact that he’s a kidnapper? The fact that he commits
aggravated assault?
The fact that he is—calls himself Mr. Hyde?
What did you hear in those audiotapes, those telephone calls that was
mitigation, that reduced his moral blameworthiness, that he grew up in a
family that caused him to be that way?
My God, don’t you understand that his whole family’s that way? It’s horrible.
It’s like a—it’s like a cancer. It’s scary.
But they—they can be controlled by you—at least this man can.
29 RR 40.
The jury listened to hours of “profanity-laced telephone calls” between Granger and his
family in which Granger “expressed threats, hatred, and a lack of remorse regarding virtually
everyone associated with his sexual assault trial—especially Samantha and her mother—as well as
hatred toward many other groups.” Ex parte Granger I, 2017 WL 3379285, at *2. His mother
also used extremely vulgar language during those phone calls. 27 RR 112–13. Both mother and
son furthermore behaved inappropriately while on the stand—the former winked at and blew kisses
to her son, see 27 RR 103, 113, and the latter, mockingly, to the prosecutor after he behaved
disrespectfully during cross-examination, 28 RR 61–63 (“Aw, what’s wrong, Ed? Did I piss you
off? Did I get you upset, baby? (Laughing). You don’t like hearing the truth, man?”).
Given the testimony about Granger’s family and life history, coupled with the jury’s
observations of said family in the courtroom, it was certainly reasonable for the State to suggest
that the family evidence was far more aggravating than mitigating. See Pinholster, 563 U.S. at
156
201 (incorrigibility of a defendant’s family is “by no means clearly mitigating,” as the jury might
conclude that the defendant “was simply beyond rehabilitation”). The State’s analogy to cancer—a
disease that can spread, is “scary,” 29 RR 40, and sometimes terminal—to sum up the effect
Granger’s family history has on his future dangerousness may be dramatic, but not necessarily
improper, argument. Moreover, assuming the argument was objectionable, counsel could have
reasonably decided not to draw further attention to the misbehavior the jury had witnessed of their
client and client’s mother by objecting. See Drew, 964 F.2d at 411 (decision not to object is a
matter of trial strategy); Vasquez v. Thaler, 505 F. App’x 319, 330 (5th Cir.) (finding district
court’s conclusion that trial counsel was not deficient for not objecting where counsel “could have
reasonably concluded that an objection would draw additional attention to the prosecutor’s remarks
about Vasquez’s dangerousness” was not debatable), cert. denied, 571 U.S. 832 (2013). Granger
fails to show that the state court’s determination that counsel was not deficient was unreasonable.
Granger also fails to prove prejudice. “[B]ecause the objection[s were] of questionable
merit, [Granger] has not shown a reasonable probability that the objection[s] would have been
sustained.” Ries, 522 F.3d at 531. None of the three new arguments establish a reasonable
probability of a different result when viewed in light of the extensive aggravating evidence,
including the jury’s observations of Granger’s inability to control himself despite the seriousness
of a capital murder trial. Thus, even if this court could consider Granger’s new arguments, he
fails to demonstrate ineffectiveness and, consequently, cannot establish that the state court’s
rejection of his claim was unreasonable. Granger has not shown that habeas relief is warranted
on this claim.
157
J.
Claim 11 (IATC): Granger was denied his Sixth Amendment rights to effective
assistance of counsel and a fair trial as a result of trial counsels’ failure to
investigate, prepare, and present a coherent guilt-phase defense; counsels’
introduction of overtly harmful evidence; and counsels’ failure to object to
irrelevant and overly prejudicial evidence and argument.
In Claim 11, Granger raises several IATC allegations regarding the guilt phase of his trial.
Granger complains that:
(1)
Trial counsel introduced evidence concerning the underlying nature and
circumstances of the offense for which Granger was being tried when the shooting
occurred—the sexual abuse of his daughter, Samantha. (#44 at 129–31).
(2)
Trial counsel introduced—through Granger’s testimony—extraneous acts irrelevant
to guilt or innocence. (Id. at 131–33).
(3)
Trial counsel failed to object to improper cross-examination about phone calls
Granger made from jail while awaiting trial. (Id. at 133–34).
(4)
Trial counsel inadequately prepared Granger’s brother, Lyndon, for his testimony.
(Id. at 134–35).
(5)
Trial counsel failed to object to the prosecutor’s closing argument. (Id. at 136–38).
Combining these alleged deficiencies, Granger reasons that the jury would be biased
against him after hearing prejudicial and irrelevant evidence, that the jury would not have had
reasonable doubt as to who shot Sebolt, and the jury would not have heard the prosecutors’
argument that would not have been made but for counsels’ opening the door to it. (Id. at 124–25).
The Director responds that the claims are procedurally barred, and the default is not
excused under Martinez. In the alternative, the Director asserts that Granger’s claims have no
merit. (#53 at 202–22).
1.
Granger’s Claims and New Evidence are Barred
Granger admits that he did not raise his guilt-innocence ineffective-assistance claims in his
initial state habeas application. (#44 at 139). He further admits that he raised these claims in a
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second state application, which was dismissed by the TCCA as an abuse of the writ in Ex parte
Granger II. (Id. at 140). He asserts that the procedural default of his claims is excused by
Martinez. Granger fails to show that his state habeas counsel, however, were ineffective for
failing to raise these meritless, and therefore insubstantial, claims. Mirzayance, 556 U.S. at 127.
Martinez, therefore, does not benefit Granger.
Moreover, Granger’s new evidence (see #44 at 121) (citing to purported letter sent to
defense counsel from prosecutor with State’s witness list (A0816–19)), is barred by § 2254(e)(2).
The letter is also unauthenticated, and is not competent evidence that can be considered.
2.
Alternatively, these Claims are Without Merit
a.
Counsel Cannot be Blamed for Granger’s Exercise of his Right to
Testify, but Even if They Could, Counsel Employed a Reasonable
Strategy regarding Granger’s Sexual Assault Trial and No Prejudice
Resulted
Granger faults his counsel for introducing the fact that he was on trial for the sexual assault
of his daughter when Sebolt was shot and killed. (#44 at 129). Granger argues that the
prosecutors did not introduce evidence about the sexual assault charges Granger faced at the time
of the shooting. (Id.). He errs in this assertion, as on direct examination with one of Granger’s
hostages and before the defense presented its case, prosecutors elicited that Granger said that “he
had been accused of raping his daughter.” 20 RR 141.
Granger points to his own testimony on direct examination by his counsel and that of the
witnesses he called in his defense to show that the sexual assault charges were discussed during
that testimony. (Id. at 129–30). He claims that evidence of the sexual assault charge was
irrelevant because it did nothing to negate his guilt of capital murder and was prejudicial because
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it engendered sympathy for Samantha, biased the jury against him, and allowed the prosecution
to argue that his defense was “Samantha Jackson needed killing.” (Id. at 130) (citing 24 RR 53).
Granger cannot blame counsel for his choice to testify, but even if he could, he fails to
prove deficient conduct or prejudice. The record makes clear that Granger foisted a strategy upon
counsel by testifying about the charges he faced at the time of the shooting—Granger’s theory was
that he was not retaliating against Claudia for her status as a witness, but that he had finally
snapped after years of domestic disagreement with her over their children, leading to false charges
of sexual assault.22 For example, on cross-examination of one of Granger’s hostages, counsel
elicited testimony that Granger had said that his daughter “framed” him with sexual assault
charges. 20 RR 148. The same witness also testified that he believed that Granger was “pretty
irrational,” “upset,” and “scared” when he entered the business, he “ranted and raved” while in
the establishment, and he “would get mad” at whoever he was talking to on the phone. 20 RR
148–49.
When Granger testified—a decision constitutionally left to him under the Fifth
Amendment—he discussed his tumultuous and strained relationship with Claudia. 23 RR 8–22.
When the prosecution objected on relevance grounds, counsel made the strategy clear—“[I]t goes
to the state of mind of my client. This is a long relationship, and every matter is very important
as to his state of mind in March of 2012.” 23 RR 18. Granger then described his state of mind,
speaking of being persecuted with false claims of sexual assault masterminded by Claudia, of how
angry that made him feel, and of how it resulted in a fugue-type state during the shooting. 23 RR
26, 35–37; see 23 RR 67 (“I told you it was like I was on cruise control or something. It’s like
I wasn’t even there. I didn’t have no control.”); 23 RR 101 (Lyndon, Granger’s brother,
22
Additionally, Granger challenged the State’s evidence that he shot Sebolt, presenting expert testimony that
the medical examiner had erroneously determined the direction of the bullet that fatally injured Sebolt.
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describing Granger as “irate” on a phone call likely placed during the hostage taking); 23 RR 133
(Vallire, Granger’s mother, saying the day before the shooting that Granger “was out of his
mind”).
His other witnesses bolstered the evidence of the mounting stress Granger suffered.
Lyndon testified that Samantha told authorities in a neighboring county that Lyndon sexually
assaulted her, but he was not arrested. 23 RR 99. She made the same allegations against
Granger’s other brother, Ulysses, resulting in an indictment that was dismissed because he was
captaining an offshore ship at the time of the supposed sexual assault. 23 RR 99–100, 194.
Granger’s son testified that he saw nothing improper between Samantha and Granger and his
uncles, nor did she ever make an outcry to him. 23 RR 112. The same was true of Sewell, who
also stated that Samantha was gullible and easily influenced by others. 23 RR 125–26. Case in
point: before Samantha went to live with Claudia, she revealed in her diary that she “hated her
mom,” but “love[d]” her dad. 23 RR 125–26. Granger’s prior attorney, Kimler, also thought
that the diary was exculpatory, confirming that Samantha thought Granger was a good father. 23
RR 176, 182. Granger’s mother, Vallire, with whom Granger and Samantha lived for a time, also
did not see any sexually assaultive behavior or hear any outcry. 23 RR 130. She also confirmed
that Claudia had a “vendetta” against her because Claudia felt like Vallire “took her kids from her
bosom,” so Claudia got Samantha to lie about being sexually assaulted by the Granger brothers.
23 RR 131. These false allegations had “destroyed [her] and [her] children” and the “whole
family [had] been suffering” as a result. 23 RR 131, 133.
Before closing, trial counsel requested that the jury be offered the lesser included offense
of murder, an offense not requiring a showing of retaliation, but the request was denied. 24 RR
5; see TEX. PENAL CODE § 19.02(b). During closing, trial counsel admitted that Granger “[m]ight
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be guilty of murder,” an offense not before the jury, but not capital murder. 24 RR 25. Trial
counsel also pointed to the fact that, while Granger admitted to shooting a weapon, he did not
“remember when he shot, who he shot, or where he shot,” bolstering Granger’s claim that he
“lost it” during the shooting. 24 RR 26.
Counsel were obviously attacking the aggravator of retaliation, providing a reason for the
shooting other than Claudia’s status as a witness. Directly affecting the reasonableness of this
defense theory is Granger’s role in presenting it.
Namely, Granger exercised his Fifth
Amendment right to testify and described what he thought were false charges leveled against him.
Indeed, during the punishment phase of trial, Granger testified against counsels’ advice, explaining
that he continued “to want to try the sexual assault case” “because it has a lot of relevance to this
case because that was the main reason why I went berserk, ‘cause I thought I was being
wrongfully convicted.” 28 RR 13–14. Thus, Granger effectively seeks “to avoid conviction on
the ground that his lawyer did exactly what he asked him to do. That argument answers itself.”
United States v. Masat, 896 F.2d 88, 92 (5th Cir. 1990). This is because “a defendant’s Sixth
Amendment rights are his alone, and . . . trial counsel, while held to a standard of ‘reasonable
effectiveness,’ is still only an assistant to the defendant and not the master of the defense.” Id.
(quoting Mulligan v. Kemp, 771 F.2d 1436, 1441 (11th Cir. 1985), cert. denied, 480 U.S. 911
(1987)).
Here, Granger directed his defense by testifying to his belief that he “went berserk, ‘cause
I thought I was being wrongfully convicted,” and his attorneys cannot be faulted for Granger’s
actions. Cf. Faretta, 422 U.S. at 819–20 (“The right to defend is given directly to the accused;
for it is he who suffers the consequences if the defense fails. The counsel provision [of the Sixth
Amendment] supplements this design. It speaks of the ‘assistance’ of counsel, and an assistant,
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however expert, is still an assistant.”). Granger’s testimony about the “false charges” against him
required his counsel to follow this as a trial theme, including exploring the allegations and
evidence regarding the conflict with Claudia and the sexual abuse or sexual assault charges against
him. Counsels’ strategy in adopting Granger’s grievance was reasonable in light of counsels’ hope
to negate the retaliation element of the capital murder charge.
In fact, in other cases, habeas petitioners have attempted to do precisely what counsel did
in this case or have faulted their attorneys for failing to do so. For example, in Russell v.
Lumpkin, the petitioner challenged the sufficiency of the evidence on the issue of retaliation,
arguing that the killing was borne of infidelity rather than the victim’s status as an informant
against him. 827 F. App’x 378, 386–89 (5th Cir. 2020), cert. denied, 141 S. Ct. 2636 (2021).
As another example, in Gardner v. Davis, a petitioner complained that his attorneys did not
present a psychological defense tending to show that the killing was in reaction to abandonment
by his estranged wife, not because she was a prospective witness against him. 779 F. App’x 187,
189–90 (5th Cir. 2019), cert. denied, 140 S. Ct. 842 (2020). In Ward v. Stephens, trial counsel
argued that the petitioner’s “childhood and family caused a delusional mental state toward the City
of Commerce that precluded the required intent for capital murder—retaliation,” negating the
state’s theory of retaliation against a public servant. 777 F.3d 250, 260 (5th Cir.), cert. denied,
577 U.S. 844 (2015), abrogated on other grounds by Ayestas, 138 S. Ct. at 1080.
These cases establish that it is reasonable trial strategy to attack the aggravator present
here—retaliation—by providing another reason for the killing other than the victim’s membership
in a protected class, e.g., witness, informant, or public servant. While Granger may criticize this
defensive tactic, it does not prove counsels’ strategic choice was deficient. See Strickland, 466
U.S. at 689 (“There are countless ways to provide effective assistance in any given case. Even
163
the best criminal defense attorneys would not defend a particular client in the same way.”). Thus,
Granger fails to prove substandard attorney performance.
Granger also fails to prove prejudice. As discussed above, the State brought out the fact
Granger was accused of sexually assaulting his daughter before the defense addressed that topic.
20 RR 148. Accordingly, the additional testimony brought out in the defense’s case in chief is
cumulative and, therefore, non-prejudicial. See Pinholster, 563 U.S. at 200–01 (finding no
prejudice, in part, because “[t]he ‘new’ evidence largely duplicated the mitigation evidence at
trial”). Moreover, this testimony in no way undermined Granger’s claim that he did not shoot
Sebolt. (#44 at 130, 138). Granger’s non-retaliation defense and alternative shooter defense ran
parallel, and the former did nothing to undermine the latter.
This defensive strategy (#44 at 130) could not have prejudiced the jury against Granger any
more than the video of him shooting and running over his own daughter, regardless of the charges
he faced. Furthermore, the jury knew that Granger was on trial for a felony, that Samantha was
the victim, and that her mother testified adversely to Granger. 18 RR 29–30. As such, the jury
knew that Granger had allegedly done something felonious to his daughter, the specification of
which did not add much to the already unflattering portrait of Granger brought out as a function
of the capital murder charges against him.
Finally, to the extent the State was able to argue that Granger thought “Samantha Jackson
needed killing” because of this defense strategy (#44 at 130), that fault falls upon Granger and his
decision to testify and is not something about which he can complain. See Schriro, 550 U.S. at
478 (“[I]t was not objectively unreasonable for that court to conclude that a defendant who refused
to allow the presentation of any mitigating evidence could not establish Strickland prejudice.”);
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (“[A] defendant who explicitly tells his attorney
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not to file an appeal plainly cannot later complain that, by following his instructions, his counsel
performed deficiently.”). Granger chose to testify, as was his right, and clearly wanted to air his
false charge grievances. Even if he could escape this invited error, Granger fails to prove that he
would not have been convicted absent this strategy. The evidence shows that Granger killed
Sebolt while trying to kill Claudia for testifying against him—the shooting is on videotape. 23
Granger is not entitled to habeas relief on this claim.
b.
Trial Counsels’ Preparation of Granger for his Testimony was not
Inadequate or Prejudicial
Granger claims that his trial attorneys ineffectively prepared him for his testimony because
he testified regarding “inadmissible bad acts,” such as his rap persona, his tumultuous relationship
with Claudia, and the sexual assault charges he faced at the time of the shooting. 24 (#44 at
131–33). He contends that had he not so testified, then the State could not have cross-examined
him about his rap lyrics or discussed them at closing, nor could it have brought up the sexual
assault charges at closing. (Id. at 132–33, 139). Granger does not prove deficiency or prejudice.
This subpart is a repeat of the prior claim—Granger complains of trial counsels’
representation despite having knowingly and voluntarily exercised his right to testify in his
defense. He effectively argues that more preparation could have reined him in (id. at 131), but
that assertion is conclusory, see Miller, 200 F.3d at 282, and the record demonstrates to the
contrary, see, e.g., 28 RR 61–62 (“This is not a fucking court. This is a lynching of another
nigger. . . . Aw, what’s wrong, Ed? Did I piss you off? Did I get you upset, baby? You don’t
23
The videotape also shows Granger’s attempts to kill Samantha and Richard. Granger was indicted for causing
the death of Sebolt while intending to cause the death of Claudia in retaliation for her testifying against him.
(#48-3 at 6, at CR.Supp.2 at 2).
24
Granger claims that he was the “first witness in the case to inform the jury that he was facing sexual assault
charges against his daughter at the time of the shooting.” (#44 at 131). As noted above, Granger is mistaken.
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like hearing the truth, man?”). As explained above, Granger was the master of his defense and
he testified about the sexual assault charges and volatile relationship with Claudia because that was
the defense he wanted to assert. He cannot establish prejudice arising from his own choices. Id.
As for Granger’s rap persona, trial counsel did not introduce any bad acts. Granger, in
explaining how Samantha suffered brain damage from smoke inhalation, testified that he was not
home when a fire started there but was instead at a rap show. 23 RR 11–12. Trial counsel then
asked Granger questions to clarify what rap was, that he and his brother were rappers, and that
he had a rap persona. 23 RR 12. Being a rapper and having a rap persona are not bad acts, so
counsel did not introduce any improper evidence. Granger’s real complaint, then, is that the State
cross-examined Granger about his rap lyrics and used his rap persona in closing against him.
Counsel reasonably introduced Granger’s rap name (Mr. Hyde) to soften the blow of the
State’s cross-examination. “The general rule is that[,] if a defendant exercises his right to
testify[,] he is subject to the same rules governing examination as any other witness,” and “[i]n
Texas, the scope of cross-examination is wide open.” Felder v. State, 848 S.W.2d 85, 99 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993). The State clearly knew about Granger’s
rapping, including a song entitled “Helloween,” which Granger described as his “delivering death
and destruction” instead of candy. 23 RR 56. While Granger claims that such is not relevant, he
is incorrect. Cross-examination using these lyrics was relevant to rebut Granger’s testimony that
the shooting was an unintentional or accidental action stemming from extreme pressure. See, e.g.,
23 RR 57 (“Q. I asked you about the lyrics to your song. And the fact that the people that come
to your door you murder. Isn’t that right?”); T EX. R. EVID. 404(b)(2) (“This evidence may be
admissible for another purpose, such as proving . . . intent . . . or lack of accident.”). Given the
State’s knowledge, and Texas’s open scope of cross-examination, the State’s use of this material
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on cross-examination was not dependent on whether it was raised in Granger’s direct examination.
Counsel could reasonably decide that it was better for the defense to bring up Granger’s rap alterego so that the State was not the first to do so. Later, when examining Lyndon, trial counsel made
the point that rap music should not be taken literally, uses a lot of slang, and is a popular form of
music. 23 RR 92. Again, there was nothing objectively deficient about counsels’ approach.
Even if counsel could be faulted for introducing Granger’s rap name, there is no reasonable
probability of a different result without that evidence. The evidence against Granger was
overwhelming—he was videotaped committing the offense, and he admitted to shooting Samantha.
A few questions about rap lyrics and a brief discussion of his rap persona in closing argument did
not tip the scales in the State’s favor, especially where trial counsel introduced evidence that such
lyrics should not be interpreted literally. Granger is not entitled to habeas relief on this claim.
c.
Trial Counsels’ Lack of Objections did not Constitute Deficient
Performance or Result in Prejudice
Granger next faults trial counsel for not objecting to cross-examination using recorded
jailhouse phone calls between Granger and various family members. (#44 at 133–34). He
complains this was outside the scope of direct examination, irrelevant, and highly prejudicial. (Id.
at 133). Counsel should have objected, Granger claims, because there was a motion in limine
covering the jailhouse phone calls and the State did not give advance notice “as to which
statements they intended to use to impeach” Granger. (Id. at 134). The trial court did not,
however, grant a motion in limine concerning the recorded telephone calls and, in Texas, crossexamination is not limited in scope by direct examination. Because neither of Granger’s assertions
to the contrary is correct, they cannot be the basis of deficient performance.
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Trial counsel filed two motions concerning Granger’s out-of-court statements. Neither was
a motion in limine to suppress any statements from the phone calls, and neither was granted by
the trial court. 3 CR.Supp.2 at 459–61; 5 RR 41; 3 CR.Supp.2 at 465–66; 5 RR 42. Simply put,
there was no in limine ruling upon which trial counsel could have predicated an objection during
Granger’s cross-examination, so it cannot be the foundation of Granger’s complaint of deficient
performance.
As discussed above, “[i]n Texas, the scope of cross-examination is wide open.” Felder,
848 S.W.2d at 99. “[T]he State [is] not confined in its cross-examination to matters elicited on
the direct examination of the defendant.” Brumfield v. State, 445 S.W.2d 732, 736 (Tex. Crim.
App. 1969). Thus, any argument of deficient performance based on an objection regarding the
scope of cross-examination falters under Texas law, as no such limitation exists. Accordingly,
trial counsel cannot be faulted for having failed to lodge such an objection.
Granger complains that counsel should have objected to the relevance of the prosecutor’s
cross-examination of him regarding the recorded jailhouse phone calls, his rap lyrics and persona,
and his pretrial detention behavior. His counsel cannot be criticized for not raising a frivolous
objection to the cross-examination questions. As discussed above, Granger denied any intent to
retaliate against Claudia or that the shooting was intentional. Cross-examination of Granger about
whether Claudia, in Granger’s words, was a “Babylonian whore[]” who needed her “throat cut”
goes to establish that the shooting was intentional and not a mistake. See TEX. R. EVID. 404(b)(2).
The “war of Armageddon”25 cross-examination similarly addressed whether this was a planned
shooting, something Granger repeatedly denied. Id. (“This evidence may be admissible for
25
Lyndon explained that this rap song reference was about various wars and country destabilizations around the
world—“Our country’s heading for Armageddon.” 23 RR 92–93. If Granger’s cross-examination on this
point were improper, the contextualization diminished the harm, if any.
168
another purpose, such as proving . . . plan.”). In other words, it went to rebutting Granger’s Idon’t-know-how-I-ended-up-at-the-Beaumont-courthouse-with-a-gun defense. 23 RR 32, 52. (“I
don’t remember bringing [the gun].”). The final comments, in context, show that Granger
engages in retaliatory behavior: The “start[ing] shit” comment concerned inmates supposedly
throwing urine and feces in Granger’s face, and the “break their necks” comment concerned
guards supposedly cutting his arm. Stated differently, these statements tended to show that
Granger engaged in retaliatory behavior when he was wronged, which goes again to proving intent
and absence of mistake. Given that Granger’s words were used for permissible purposes, he
cannot show that trial counsel were deficient for not objecting to the State’s cross-examination.
Granger also fails to prove prejudice. To the extent that the above instances of crossexamination were used for the improper purpose of proving a character of violence, Granger’s
words pale in comparison to his actions. In his jailhouse phone calls, Granger admitted without
evincing remorse to shooting his daughter repeatedly and then running over her with his truck
when it appeared he had not finished the job of killing her. These few statements, which Granger
said were largely made in anger, 23 RR 50 (“Listen, I just had feces thrown in my face; and if I
did say that, it was out of anger.”), do not even come close to outweighing his actions toward
Richards, Claudia, Samantha, and nearby bystanders. As such, Granger fails to prove prejudice.
He is not entitled to habeas relief on this claim.
d.
Counsel did not Inadequately Investigate or Prepare Lyndon
Granger
Granger claims his attorneys failed adequately to prepare and investigate his brother,
Lyndon. (#44 at 134–35). He complains of Lyndon’s testimony about the sexual assault charges
and the cross-examination Lyndon faced about allegedly telling a fellow inmate, R. J. Jackson,
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that he [Lyndon] sexually assaulted Samantha. (Id. at 135). Granger asserts that trial counsel
should have objected to the latter because the State did not disclose R. J. Jackson as a witness it
intended to call. (Id.). Once more, Granger does not demonstrate deficient performance or
resultant prejudice.
For the third time, Granger complains of a defense that was clearly of his making—taking
the stand in his own defense and blaming the shooting on the deleterious effects of being
wrongfully accused by Samantha and Claudia. Once he exercised his right to testify in this
manner, it was perfectly permissible—if not commanded by Granger—to support his chosen
defensive theory. That is exactly what Lyndon’s testimony did, explaining that Samantha claimed
he sexually assaulted her but that Harris County authorities did not file charges against him and
dismissed the charges against his brother, Ulysses, after Ulysses proved he had an alibi. 23 RR
98–100. This obviously advanced Granger’s line of defense—if the sexual assault charges were
indeed false, as Harris County authorities apparently concluded, then an innocent man was being
railroaded, a stressor that could cause anyone to break. The fact the strategy failed does not make
counsels’ efforts deficient, and nothing about Lyndon’s direct examination was more harmful to
Granger than the other overwhelming evidence against him. Yet again, Granger cannot claim
deficient performance or prejudice for a defensive tack that he introduced via his right to testify
in his own defense.
Concerning the cross-examination of Lyndon, that too is a direct consequence of Granger’s
strategic choice to present the false-charges defense. Once Lyndon denied sexually assaulting
Samantha, it was fair to challenge whether that was true. Secondarily, it was also permissible to
challenge Lyndon’s credibility through a prior inconsistent statement. Both were achieved by
asking whether Lyndon confessed to another inmate that he sexually assaulted Samantha. The
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question asked of Lyndon followed the Texas Rules of Evidence foundational requirements to
question a witness about his own prior inconsistent statement—the State revealed the (1) contents
of the statement (admitting to sexual assault), (2) the time and place it occurred (first jail
incarceration), and (3) to whom it was uttered (R. J. Jackson). 23 RR 104; T EX. R. EVID.
613(a)(1). The cross-examination was entirely proper and relevant in light of Granger’s chosen
defense strategy.
Moreover, Granger cannot prove deficient conduct by counsel for failing to object to a lack
of notice when the trial court denied his request for witness lists. 5 RR 33. The fact that the
prosecutor provided a witness list does not somehow turn a gratuitous action into a judicial
command. Additionally, the State was not required to call Jackson to testify or to identify him as
a potential witness simply to question Lyndon about his own statement. In fact, calling Jackson
to provide extrinsic evidence of Lyndon’s alleged statement would not have been permissible
under the Texas Rules of Evidence until after Lyndon denied making the statement. T EX. R.
EVID. 613(a)(4). The State chose not to do that here, despite Lyndon’s denial. Again, a lack of
notice was no basis for an objection, and counsel cannot be faulted for failing to lodge one.
Irrespective of performance, Granger fails to demonstrate prejudice. Once again, he
cannot complain about any backlash produced by the strategy he implemented by exercising his
constitutional right to testify. Further, any poor reaction produced by Lyndon’s testimony was
cumulative of Granger’s testimony wherein he discussed Samantha’s sexual assault allegations
against him. See Pinholster, 563 U.S. at 200–01. Granger offers no evidence about what further
investigation into R. J. Jackson would have yielded, so he has nothing to suggest a different result,
let alone by a reasonable probability. See Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir.) (“An
applicant ‘who alleges a failure to investigate on the part of his counsel must allege with specificity
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what the investigation would have revealed and how it would have altered the outcome of trial.’”
(quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989))), cert. denied, 562 U.S. 911
(2010). Moreover, the complained-of cross-examination made only Lyndon look bad, not
Granger. Finally, trial counsel minimized any damage by pointing out in closing argument that
the State failed to call R. J. Jackson to disprove Lyndon’s denial. 24 RR 19. Given all these
circumstances, Granger does not prove a reasonable probability of a different result. Granger has
not shown that he is entitled to habeas corpus relief.
e.
Trial Counsels’ Performance during the State’s Closing Argument
was Constitutionally Sound
Granger’s final subpart of Claim 11 focuses on trial counsels’ treatment of the
prosecution’s closing statement. (#44 at 136–38). Granger specifically complains that trial
counsel did not object to the prosecutor’s closing statements that Granger was “incapable” of
empathy, that he bragged about the killing, that he is “the personification of the evil that we deal
with in the criminal justice system,” that he “has more than the guts of a skydiver to come in here
and lie to your faces,” and that he is “disgusting.” (Id. at 136) (citing 24 RR 31, 34, 49, 55, 56).
He also seemingly complains about descriptions of Granger as “evil” despite counsels’ objections.
(Id.) (citing 24 RR 49). Granger further asserts that the prosecution argued for conviction based
on anger, lack of remorse, outrage of the crime, empathy for the victim, fear of his release, and
protection of society. (Id. at 137) (citing 24 RR 31–32, 50–52, 58). He admits, however, that
counsel objected to the statements about anger and fear of release. (Id.).
Granger cannot complain of the instances where counsel objected to the State’s closing
argument—that he was evil, that the jury should be angry, and that he could walk free if found not
guilty. See 24 RR 49, 50–52; see also Fields, 761 F.3d at 456 (“Thus, while Fields contends that
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his trial counsel should have found and presented precisely this type of evidence, the record
reflects that his trial counsel did so.”). He offers nothing more about what counsel could have
done and therefore he proves no deficiency on those points.
Other instances of argument about which Granger complains were clearly proper.
Concerning the bragging comment, the prosecution’s argument must be contextualized:
And he goes in - - he goes with the story, “I don’t remember.”
Hah, laughable. He’s bragging about it before, he’s bragging about it after. And,
then at trial he comes up with this extra memory that, “Oh, yeah, she pleaded, ‘I’ll
tell the truth now, Daddy.’”
He never mentioned that before. He’s still focused on that. He’s still got anger.
24 RR 34. The record reveals that the State was discussing Granger’s braggadocious statements
to challenge his credibility vis-à-vis whether he remembered the shooting. “A prosecutor is
allowed to argue that the witnesses for the defense are not worthy of belief.” Satterwhite v. State,
858 S.W.2d 412, 425 (Tex. Crim. App.), cert. denied, 510 U.S. 970 (1993). Given this law,
there was no basis upon which trial counsel could have lodged an objection to this argument. The
same is true for the skydiver comment, which also was just a challenge to Granger’s credibility.
Concerning the lack of remorse and empathy, Granger testified that he was sorry for
shooting and running over Samantha, and that he was sorry “if [he] killed . . . Sebolt.” 23 RR
34, 55. In his jailhouse phone calls to family, however, he made comments that the jury could
construe as bragging “about killing people in Beaumont.” 23 RR 64. Thus, “there was evidence
presented at trial that, immediately following the murder[], [Granger] made comments that
indicated his lack of remorse.” Coble, 496 F.3d at 438. This argument, therefore, was fair game
for the prosecution in two ways: (1) to rebut Granger’s testimony of remorse and (2) to question
whether he was telling the truth. In other words, it was a summation of evidence and a challenge
173
to credibility. See id. (denying improper argument claim because there was evidence that
petitioner lacked remorse); Satterwhite, 858 S.W.2d at 425. Trial counsel cannot be faulted for
failing to lodge a frivolous objection to this argument.
Finally, the argument about protecting “the good folks of Jefferson County” was a proper
plea for law enforcement. It is almost verbatim to the closing made in Anderson v. State, where
the prosecution argued, “Now the question here is whether[,] . . . after all the evidence that you
have heard, whether or not the rights of the law abiding citizens of Dallas County are going to be
protected.” 486 S.W.2d 569, 572 (Tex. Crim. App. 1972). The TCCA found that such
“argument was more in the form of a plea for law enforcement than an improper appeal to
community prejudice.” Id.; see Ridyolph v. State, 545 S.W.2d 784, 790 (Tex. Crim. App. 1977)
(holding that call to “protect our policemen” was proper plea for law enforcement); Myers v.
State, 468 S.W.2d 847, 848–49 (Tex. Crim. App. 1971) (holding that argument for protection of
women in a sexual assault case was not reversible error). It was not deficient for trial counsel not
to object where no basis existed.
It is also clear that trial counsel were paying attention to closing argument and objected
when they thought appropriate. 24 RR 49, 50–52 (counsel objecting to prosecutor: calling
Granger an “evil creature,” misstating definition of transferred intent, and personal attacks on
Granger). “When counsel focuses on some issues to the exclusion of others, there is a strong
presumption that he did so for tactical reasons rather than through sheer neglect.” Gentry, 540
U.S. at 8. To the extent that any of the complained-of arguments were improper, trial counsels’
lack of objection is easily justified by not wanting to “draw additional attention to the prosecutor’s
remarks.” Vasquez, 505 F. App’x at 330. Obviously, the “[failure to raise meritless objections
174
is not ineffective lawyering; it is the very opposite.”
Clark, 19 F.3d at 966.
Deficient
performance is not found on this record.
Assuming, however, that trial counsels’ failure to object was deficient, there is no
prejudice. “[T]he overwhelming evidence of [a petitioner’s] guilt” can outweigh any harm caused
by improper closing remarks. Pondexter v. Quarterman, 537 F.3d 511, 525 (5th Cir. 2008), cert.
denied, 555 U.S. 1219 (2009). Curative or jury instructions can also minimize any harm. See
Hughes, 530 F.3d at 347. Here, the evidence of the crime was video-recorded and numerous
witnesses identified Granger as the shooter, which he admitted in his testimony (though denying
he shot Sebolt). Further, both the defense and State acknowledged that closing argument is not
evidence, 24 RR 18, 29, and the jurors were instructed to engage in a “careful and impartial
consideration of all the evidence” and could “not refer to nor discuss any matters not in evidence.”
CR.Supp.3 at 3. Moreover, assuming some improper argument, it was not pronounced or
sustained, with the bulk focusing on evidence of guilt and rebutting Granger’s argument. There
is no reasonable probability that Granger would have been found not guilty but for the supposedly
improper closing arguments. Granger fails to establish that he is entitled to habeas relief on this
claim.
K.
Claim 12 (IATC): Granger was denied effective assistance of counsel and a fair
trial and sentencing as a result of counsels’ handling of the ballistic evidence,
including presentation of harmful expert testimony and failure to object to the
State’s presentation of false testimony and overstated closing argument.
Claim 1(6): Trial counsel “presented a ballistics expert who was the only witness
to opine that the bullets that killed the victim, Ms. Sebolt, came from the location
their client was firing from, contradicting Granger’s testimony.”
Granger asserts that his trial counsel mishandled the guilt-phase ballistics evidence and
testimony. (#44 at 140–48). Granger’s claim is comprised primarily of three multi-faceted parts:
175
(1)
counsel failed to highlight helpful ballistics evidence and instead elicited
harmful evidence from the State’s witnesses (id. at 144–45);
(2)
counsel failed to prepare their ballistics expert, Dr. Grossberg, to testify,
resulting in the introduction of evidence contrary to their purported
strategy (id. at 145–46); and
(3)
counsel failed to object to the State’s overstatement of the ballistics
evidence during closing argument (id. at 146–47).
Granger also claims that the State presented “exaggerated and false argument on an important and
contested guilt-phase issue—the origin of the bullets found near the body.” (Id. at 148). He
asserts that the State’s presentation of the “false evidence” violated his rights under Napue v.
Illinois, 360 U.S. 264, 269 (1959).
The Director contends that Granger’s claims related to the ballistics evidence and testimony
are procedurally barred; and in the alternative, the claims are without merit. (#53 at 222–36).
1.
These Claims are Procedurally Barred, and the New Evidence Cannot
Be Considered
Granger admits that he attempted to pursue these claims in a subsequent state habeas
application that was dismissed as an abuse of the writ. (#44 at 148; Ex parte Granger II, 2020
WL 915434, at *1). His claims are therefore procedurally barred. Granger offers no cause to
excuse his defaulted false testimony and “fair trial and sentencing” 26 claims, and none is apparent
from the record. Martinez does not excuse the default of a non-IATC claim. Davila, 137 S. Ct.
at 2063. Accordingly, Granger’s false testimony and “fair trial and sentencing” claims are denied
as procedurally barred.
Regarding his IATC claim, he argues that he can overcome the default under Martinez
because state habeas counsel had no strategic reason for failing to present his meritorious IATC
26
His “fair trial and sentencing” claim is presumably a Sixth Amendment claim.
176
claim. (#44 at 147–48). Granger fails to provide any analysis under Section 2254(e)(2) to
evaluate whether the evidence in support of this claim can be considered.
Granger presents new evidence in support of his IATC claims regarding the ballistics
evidence and/or testimony. Where a petitioner relies on Martinez to excuse a procedural default,
a federal court may not consider new evidence to assess cause and prejudice if the petitioner
“failed to develop the factual basis of [his] claim in state court proceedings.” Ramirez, 142 S. Ct.
at 1739; 28 U.S.C. § 2254(e)(2). Granger presents: (1) Dr. Grossberg’s May 2018 declaration
(A0363–64); (2) T.D. Spikes’s March 2012 Beaumont Police Department Report (A0822–24);
(3) Coffin, III’s, March 15, 2012, Beaumont Police Department Report (A0825–26); (4) a
February 1, 2013, Letter to defense counsel from prosecutor Shettle regarding discovery
(A0847–61); (5) a Jefferson County List of Recovered Evidence (A0863–67); and (6) a Jefferson
County Lab Submission Form (A0868–70).27
Granger fails to make any showing that his IATC ballistics claims rely on a new and
previously unavailable rule of constitutional law or that the claims rely on a factual predicate that
could not have been previously discovered through the exercise of due diligence. State habeas
counsels’ trial strategy or alleged negligence in not presenting the claim is not sufficient to meet
the standard stated in Shoop, 142 S. Ct. at 2044 (quoting 28 U.S.C. § 2254(e)(2)(A)). The court
may not consider Granger’s proffer of new evidence to support Claim 12.
Regarding his claim that state habeas counsel was ineffective for failing to raise these
claims in Ex parte Granger I, state habeas counsel Jeremy Schepers (“Schepers”) belies Granger’s
claim of ineffective assistance of counsel. State habeas counsel Schepers—whose investigation was
27
The Director notes that aside from Dr. Grossberg’s declaration, the new evidence is unauthenticated—none
of the alleged discovery documents are accompanied with a business records affidavit or otherwise selfauthenticated.
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expressly “limited to investigating the circumstances surrounding the shooting and attempting to
determine if the fatal bullets could have come from the direction of the courthouse,”—“reviewed
testimony and reports relating to the analysis of bullets, jackets, and fragments collected at the
crime scene” and even “hired a ballistics expert, Edard Love, to analyze the ballistics evidence[.]”
(A0972). Schepers was especially “interested in determining the accuracy of the State’s evidence
. . . and if there was any way bullets could have been fired from the courthouse, rather than the
street, where Mr. Granger was located.” Id.
The fact that state habeas counsel specifically hired an expert to contest the location from
which the bullets were shot and yet did not raise any claim based on the ballistics evidence in the
first state habeas application is quite telling. The decision not to include a challenge to the ballistic
evidence in the state habeas proceedings is clearly a strategic decision—and is effectively a
concession that the claim had no merit. See, e.g., (A0972) (stating that “[a]ny discrepancies
between Mr. Baldwin’s testimony and report or between his report and the State’s argument[]
would be potentially viable claims that should have been litigated” but that he did not raise
(emphasis added)). State habeas counsel need not and should not raise every nonfrivolous claim.
Vasquez, 597 F. App’x at 780. Likewise, state habeas counsel should not raise a claim that is
unsupported by the record.
Granger fails to demonstrate that state habeas counsel were
ineffective, as required to overcome the procedural default of the underlying IATC claim through
Martinez. Martinez does not benefit Granger. The procedural default of this IATC claim is not
excused. Thus, Granger is not entitled to habeas relief on this claim.
178
2.
Alternatively, the Claims Lack Merit
a.
Granger’s False Testimony Claim is Conclusory and Without Merit
In a tacked-on Napue claim, Granger alleges that the State knowingly presented
“exaggerated and false argument” as to the “origins of the bullets found near” Sebolt’s body.
(#44 at 148) (citing Napue, 360 U.S. at 269). Due process is violated at trial when the prosecution
knowingly presents false evidence or fails to correct such evidence when it is offered. See Giglio
v. United States, 405 U.S. 150, 153–54 (1972); Napue, 360 U.S. at 269. To establish such a
claim, a petitioner must demonstrate “(1) the testimony was actually false, (2) the state knew it
was false, and (3) the testimony was material.” Canales, 765 F.3d at 573 (quoting Pyles v.
Johnson, 136 F.3d 986, 996 (5th Cir.), cert. denied, 524 U.S. 933 (1998)). “[T]estimony is
material if ‘there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury.’” Id. (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
Through the lens of an IATC claim, Granger complains of various supposed falsities, but
he does not direct the court to exactly which testimony he believes was false under Napue, much
less demonstrate than any such testimony was actually false. He also does not point to anything
that proves the State knowingly presented false evidence. In addition, Granger fails to show that
the allegedly false evidence was material. His claim is conclusory. See Miller, 200 F.3d at 282.
Granger further complains about the State’s “presentation of exaggerated and false
argument,” as opposed to testimony. (See #44 at 148) (emphasis added); see also id. at 132–33
(IATC claim for failing to object to prosecutor’s overstatement during closing argument). Jury
argument, however, is not evidence; therefore, it cannot be the foundation of a false testimony
claim. See Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App. 2016) (noting that, in
sufficiency-of-the-evidence analysis, “the arguments of the parties are of no consequence because
179
arguments are not evidence” (citing Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996)
(plurality opinion) (“It is axiomatic that jury arguments are not evidence.”))); cf. Boyde v.
California, 494 U.S. 370, 384 (1990) (“But arguments of counsel generally carry less weight with
a jury than do instructions from the court. The former are usually billed in advance to the jury
as matters of argument, not evidence, and are likely viewed as the statements of advocates . . . .”
(internal citations omitted)). Granger fails to demonstrate any falsity or that any alleged falsity
is material to his conviction. Hence, Granger fails to demonstrate that he is entitled to habeas
relief on this claim.
b.
Granger’s IATC Claim Lacks Merit
Granger asserts that trial counsel mishandled the ballistics evidence. He contends trial
counsels’ handling of the ballistics evidence undermined his defense—“that the State had failed
to prove that the bullets [Granger] fired killed Ms. Sebolt.” (#44 at 144). Granger claims that
counsel should have:
(1)
highlighted the physical evidence showing several unidentified bullet fragments
were located near the entrance to the courthouse (id. at 144);
(2)
corrected the State’s ballistics expert’s inaccurate testimony regarding the
identification of bullet fragments 17B and 17C (id. at 144–45);
(3)
elicited testimony from the State’s pathologist, Dr. Lisa Funte (“Dr. Funte”),
that indicated the fatal bullets must have come from the direction of the
courthouse based on the entrance wounds on Sebolt’s body (id. at 145);
(4)
better prepared Dr. Grossberg for her testimony (id. at 145–46); and
(5)
objected to the State’s overstatement of the ballistics evidence during closing
argument (id. at 146–47).
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Granger argues that he was prejudiced by counsels’ alleged deficiencies because, but for such
deficiencies, “the jury would have had reasonable doubt as to the origin of the bullets that killed
Ms. Sebolt.” (Id. at 147).
Granger’s prejudice argument boils down to one basic premise: that the linchpin of the
State’s guilt theory was the place from where the bullets were shot and, in turn, that the direction
of the bullets identified Granger as the killer. The State’s theory of Granger’s culpability,
however, did not rely upon the location from which the bullets were shot or their direction, but
rather that Granger was the only individual who had been firing a weapon at the time Sebolt fell
to the ground. Granger complains that Dr. Funte, the State’s forensic pathologist, “did not
provide any testimony about where the bullets that caused Ms. Sebolt’s injuries came from.” (#44
at 142). He also asserts that the State did not present any evidence, either through Dr. Funte or
in the remainder of the State’s case-in-chief, that because the bullets entered the front of Sebolt’s
body, the bullet must have come from the direction of the courthouse. (Id. at 145). In an attempt
to demonstrate some malfeasance or weakness in the State’s case (see id.), Granger disregards the
weight of the evidence and testimony which shows that Granger was the only person who had
discharged a weapon up to the point that Sebolt fell to the ground and began to bleed out. The
prosecution summed it up best:
So, what do [the defense] bring you as their defenses? What does Bartholomew
Granger bring as his defense to this courtroom? That the cops shot her? You really
think that plays? Do you really think that plays?
There is not one, not one iota, not one microbit of proof that anybody shot their
weapon until—other than that man right here (indicating), until after he was back in
his truck. And by that time the evidence proves without any doubt, without any doubt
that Minnie Sebolt was already lying, dying in a pool of her own blood.
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24 RR 51 (emphasis added); see 24 RR 35 (“Not a single witness did they even ask saw a police
officer shooting towards Minnie Sebolt. Not a single witness said they shot at the time of Minnie
Sebolt. The video doesn’t support that at all.” (emphasis added)). The record reflects the
following testimony:
• Anderson, who was parked directly behind Granger’s truck, testified that no police had
begun firing at the point that he witnessed two women fall down in front of the courthouse
door. 19 RR 12, 19–20, 35. Anderson repeated: “At no time was there any possibility that
[Granger] was in a position for any [officers] to fire in that direction.” Id. at 35.
• Deputy Barker testified that he was inside the courthouse when he noticed that “[s]ome
ladies fell at the front door” and “immediately saw a man running away from them” before
he ran out of the front of the courthouse. 19 RR 41–42. Barker never fired his duty
weapon. Id. at 51. Importantly, the individuals standing at the front of the courthouse
“went down” before any of the officers fired their weapons. Id. at 52–53. And while there
was “friendly fire,” it occurred long after the individuals had fallen. Id. at 56.
• Deputy Hayes testified that he was behind the security table in the courthouse when he
heard the glass shatter, and as he came around the table toward the front door, he noticed
several people fall, but he didn’t know they were hit until he exited through the front door
and saw blood pooling underneath a lady, just seconds after the glass shattered. 19 RR 61,
66. Hayes testified that the first time anybody in law enforcement shot at Granger was after
Granger had returned to his truck. Id. at 69. Importantly, Hayes emphasized that by the
time the officers shot, Sebolt was already bleeding. Id. at 70.
• Michael Kirkpatrick (“Kirkpatrick”) confirmed that the video taken of the courthouse
showed that, by the time Deputies Barker and Hayes exited the courthouse, Sebolt was
already down. 18 RR 145–46.
• Officers Jonathan McCauley (“McCauley”), Poole, and Hamilton testified that they did
not shoot their weapons at Granger until he was in the truck driving away. 19 RR 130, 144,
160.
• Attorney Soileau saw Granger shooting toward the courthouse and heard glass breaking,
when he noticed a woman lying prone and nonresponsive in the courthouse doorway. 19
RR 29–31. He did not hear shots coming from the police officers until after this occurred.
19 RR 33, 42.
In short, no amount of objecting to the evidence about the trajectory of the bullets that killed
Sebolt would have made a different result reasonably probable given the overwhelming evidence
182
that, temporally, the only bullets that could have fatally pierced her femoral vein were Granger’s.
See Richter, 562 U.S. at 112 (“likelihood of a different result must be substantial, not just
conceivable”).
Trial counsel presented Dr. Grossberg, whose entire purpose was to establish reasonable
doubt as to the State’s ballistics evidence based on the trajectory of the entrance and exit wounds.
See 23 RR 155–56 (Makin eliciting testimony during Dr. Grossberg’s voir dire that her opinion
“affects the trajectory path—the path of the bullet”). Trial counsel revealed this strategy in his
closing argument, in which, after he summarized the chaos and confusion surrounding the
shooting, the immediacy of the police department’s response, and the allegedly limited ballistics
testing, 24 RR 17–20, he highlighted the inconsistency in the testimony provided by the two
pathologists:
Well, neither [of the two experts] could tell us which bullet or bullet fragment is the
one that hit the femoral vein; or no ballistic[s] person could tell us that.
Where did it come from? From which direction? From which weapon? What were
the entry and exit wounds? You’d think there would be some agreement.
You have Dr. Funte, who examined the body in her laboratory, you know, where the
lighting is all perfect and it’s the body and it’s the time she needed and the instruments
and procedure and she took pictures and everything and she reached a decision, you
know, saying, “This is the entry, and this is the exit.”
And then we had Dr. Grossberg, who examined pictures and the video and came up
with kind of a different conclusion on things, you know. So, which was the entry; and
which was the exit?
Even Dr. Grossberg said, “Well, it was a close call. You know, I’m not saying she
was wrong. But if Dr. Funte was right, from the way [Sebolt] was standing, Miss
Sebolt had to be shot from inside the courthouse.”
You know, that’s kind of important, I think.
You decide what’s beyond a reasonable doubt.
183
24 RR 20–21 (emphasis added). Counsel summed up the defense case:
We believe, ladies and gentlemen, the Government has failed to prove to you beyond
a reasonable doubt that Mr. Granger fired the bullet or bullets that hit Miss Sebolt and
brought about her death. And the biggest thing, again, is the contradictory testimony
of the forensic pathologists. You know, they’re both experts. They know what
they’re doing.
Id. at 22. Given the above testimony, most of what Granger complains about now would clearly
be cumulative of that presented at trial, and cumulative evidence does not prove prejudice. See
Pinholster, 563 U.S. at 200–01.
Even if Granger could establish that trial counsel were
ineffective, he could not establish prejudice in light of the evidence establishing that Sebolt was
shot and bleeding out before anyone—other than Granger—had fired a weapon.
c.
Failing to Highlight Evidence
Granger first argues that trial counsel missed an opportunity to bolster their defense when
they failed to elicit testimony from Baldwin, the State’s ballistics expert, that there were four
unidentified bullet fragments located near the entrance of the courthouse. (#44 at 144). Granger,
however, fails to prove deficient performance. While counsel did not ask about the specific items
about which Granger now wishes he had (see id.) (identifying item numbers 16A, 17B, and 17C
from Baldwin’s report (A0844–45), counsel elicited the substance of Granger’s complaint: that
not all of the collected bullet fragments had been linked to Granger’s gun. See 21 RR 95 (“Q.
But there were some things you were unable to identify, correct? A. Yes, sir. Q. Okay. And
that’s—when you say, ‘lacks individual, as well as class characteristics and was unsuitable for
comparison,’ that simply means you just couldn’t tell? A. That’s correct, sir.”). Granger’s
complaint comes down to a matter of degree, which is not enough to establish deficient
performance. Skinner, 576 F.3d at 220.
184
Moreover, trial counsel could have reasonably chosen not to ask questions about specific
items because the State’s retort could have been highly damaging. Of the ten total bullet
components found near the revolving doors where Sebolt’s body lay, six bullets were identified
as having been fired from Granger’s gun, and four were unsuitable for comparison at all. That
is, every identifiable bullet component found near Sebolt’s body was linked to Granger’s gun.
Reasonable counsel could certainly decide to avoid drawing any further attention to that damaging
evidence. Cf. Strickland, 466 U.S. at 668 (holding counsel’s defense was the result of reasonable
professional judgment, even without the presumption of competence, where counsel restricted
testimony on defendant’s character to ensure that contrary character and psychological evidence
would not come in).Providing little explanation (see #44 at 130), Granger cites to what may be
an inventory list from the Jefferson County Regional Crime Laboratory (“JCRCL”).
See
(A0863–70).28 Granger next alleges that counsel should have corrected Baldwin’s allegedly false
testimony “that bullet jacket fragments identified as 17B and 17C were fired from [Granger]’s
Beretta[.]” (#44 at 144). Granger, however, is mistaken as to Baldwin’s testimony. When the
28
In that list, ten items were identified as having been recovered at or near the courthouse revolving doors. See
(A0865)—(item numbers A62 through A65 identified as bullet components inside courthouse), id.—(items
AB, AD, and AG identified as bullet components near base of revolving door or near newspaper stands),
(A0868)—(Lab Exhibit Number 52, labeled by the Jefferson County Sheriff’s Office as “front of courthouse
pole”); see also 21 RR 42–44 (bullet fragment in Lab Exhibit Number 52 was “found at the base of the
revolving door in a pole right in front of where Sebolt was found”). The JCRCL then analyzed those items
and assigned the following exhibit numbers: item numbers A62 through A65 were renumbered as exhibits
49.001 through 49.004, see (A0855–56); items AB, AD, and AG were renumbered as exhibits 21.002
through 21.003, see (A0849); and Lab Exhibit Number 52, which was comprised of three fragments and one
lead core, remained exhibit 52, see (A0859). These materials were then submitted to Baldwin for analysis,
and he renumbered the items yet again. Under Baldwin’s numbering, JCRCL exhibit numbers 49.001
through 49.004 became item numbers 16A through 16D, see (A0843); exhibit numbers 21.002 through
21.003 became item numbers 11B through11D, see (A0841–42); and exhibit number 52 became item numbers
17A through 17C, see (A0843). Baldwin concluded that items 16A, 16C, 17B, and 17C were unsuitable for
comparison and could not be identified. See (A0844–45). All the others, including one of the components
recovered near the courthouse dedication sign and one from “front of courthouse pole” (see #44 at 144), were
identified as having been shot from Granger’s Beretta. See (A0843)—(items 11B, 11C, and 11D identified
as having been fired from Item 10, the Beretta model CX4); (A0844)—(items 16A, 16D,and 17A identified
as having been fired from Item 10); 21 RR 32–34 (witness identifying State’s Exhibit 73, a Beretta CX-4
Storm rifle, as the gun used by Granger).
185
State asked if Baldwin had “test[ed] all three of th[e] bullet fragments” in Items 17A, 17B, and
17C, Baldwin clearly stated, “With respect to 17A, sir— . . . —that was a jacket fragment that
I was able to make a determination of; and that was identified, in my opinion, as having been
fired” from Granger’s gun. 21 RR 90–91. Baldwin made no such statements and drew no such
conclusions with respect to 17B and 17C. Baldwin did not testify inaccurately, and trial counsel
had no testimony to correct. Granger fails to prove deficiency on this point.
Having his efforts to show deficiency with respect to Baldwin’s testimony prove
unavailing, Granger next faults counsels’ performance with respect to the two pathologists: Drs.
Funte and Grossberg. (#44 at 145). Granger argues that counsel should have elicited testimony
from Dr. Funte that established that the bullets must have come from the direction of the
courthouse, but instead counsel “inexplicably” presented harmful testimony from Dr. Grossberg
that the gunshots entered the back of Sebolt’s body, and, therefore, the bullets came from the
street where Granger was standing. (Id.) Granger’s insinuation that counsel should have
attempted to elicit affirmative evidence showing the bullets came from the courthouse, and,
therefore the bullets “very well could have come from a police officer’s firearm” (id. at 145), is
merely a disagreement with trial counsels’ strategy. Trial counsel presented Dr. Grossberg to
challenge and raise questions with regard to the State’s case, i.e., to create reasonable doubt—not
to establish affirmatively anything about the trajectory from which the fatal bullet was fired.
Merely because Granger now wishes counsel had taken a more aggressive tack does not mean that
counsels’ strategy was unreasonable. See Richter, 562 U.S. at 109 (“To support a defense
argument that the prosecution has not proved its case[,] it sometimes is better to try to cast
pervasive suspicion of doubt than to strive to prove a certainty that exonerates.”). It does not
mean that counsel were deficient for failing to achieve their goals in the exact manner that Granger
186
retrospectively desires. See id. at 106 (“Rare are the situations in which the ‘wide latitude counsel
must have in making tactical decisions’ will be limited to any one technique or approach.”).
Granger fails to show any deficient performance. This claim is denied.
d.
Failing to Prepare Dr. Grossberg
Granger next alleges various inadequacies in trial counsels’ preparation of Dr. Grossberg.
(#44 at 145–46). First, he alleges that counsel did not spend enough time speaking, meeting with,
or guiding Dr. Grossberg ahead of her testimony. (Id. at 145) (pointing to Dr. Grossberg’s
declaration stating that she spoke with counsel on the phone once for twenty minutes and then only
again just before she took the stand). Counsel presumably hires an expert to perform expert
analysis competently, independently, and without influence from counsel. If Dr. Grossberg felt
she needed to speak with counsel more, counsel were certainly entitled to rely on her to make such
a request. See Murphy v. Davis, 901 F.3d 578, 592 (5th Cir. 2018), cert. denied, 139 S. Ct. 1263
(2019). Dr. Grossberg, however, gave no such indication. Indeed, Dr. Grossberg was clearly
aware of her purpose: “To consult regarding the death of Minnie Sebolt . . . regarding cause and
manner of death.” 23 RR 153; see (A0363) (“[Makin] asked me to focus on the autopsy report and
the medical examiner’s findings.”). She had also either reviewed or completed “[w]ell over a
thousand” autopsies in her career. Id. at 159. She ran a consulting business “for attorneys on
death cases.” Id. Given her familiarity with these cases, speaking over the phone for twenty
minutes for testimony that comprised a total of twenty-seven pages seems eminently reasonable.
Certainly, Dr. Grossberg did not express anywhere in her declaration that speaking to counsel for
a longer period of time would have assisted her in her evaluation or changed her testimony. There
is no deficiency in counsels’ performance on this point.
187
Second, Granger alleges that counsel were deficient for not advising Dr. Grossberg that,
pursuant to a pretrial order, she was not required to share her opinions with the State prior to her
testimony. (#44 at 145–46). Granger further alleges that counsel were even more deficient—if
that were possible—by authorizing Dr. Grossberg to share her opinions with the State. (Id. at
146).
Granger is mistaken in interpreting the state court’s pretrial ruling. The defense filed a
“Motion for Production of Impeachment Evidence” in which they requested only that the State
disclose all expert data and opinions ahead of time. CR.Supp.2 at 408–11. The motion made no
mention of defense experts. Regardless, the trial court granted the motion only in part, ordering
the parties to instruct their experts to bring their underlying data with them to trial. See 5 RR
35–39. The order contained no rulings as to expert opinions, and even if it did, that such opinions
were not required to be shared does not mean the experts were prohibited from sharing them.
There was nothing improper, much less deficient, in giving Dr. Grossberg permission to speak
with the State.
Third, Dr. Grossberg avers that her notes reflect that she, like Dr. Funte, had concluded
that both entrance wounds were on the front of Sebolt’s body, with exits through the back. See
(A0363); see also 21 RR 19–20 (Dr. Funte testifying entrance wounds on front of legs). At trial,
however, Dr. Grossberg testified that she disagreed with Dr. Funte’s conclusion as to the fatal
wound, in particular, that the entrance and exit were reversed. 23 RR 164. Granger attributes
this mistake to counsels’ inadequate preparation. (#44 at 146). That is pure speculation, and
Granger’s true complaint is actually one about the ineffectiveness of counsels’ expert. Granger,
however, “has no constitutional guarantee of effective assistance of experts.” See Earp v. Cullen,
623 F.3d 1065, 1077 (9th Cir. 2010) (“An expert’s failure to diagnose a mental condition does
188
not constitute ineffective assistance of counsel[.]”), cert. denied, 563 U.S. 1037 (2011). Granger
fails to show deficiency, and he is not entitled to relief on this claim.
e.
Failing to Object to the State’s Summation
Granger complains that his trial counsel was ineffective for failing to object to the
prosecutors’ closing argument. Granger argues that the following statement during the State’s
closing argument was inaccurate:
The ballistics nail’em. Every single slug that was found in the courthouse, the one
behind Minnie, the one inside that pole in front of Minnie, the one by the newspaper,
the one inside the courthouse that went through the shattered windows, all those match
this gun (displaying), State’s 73, which witness after witness said they saw him
holding and firing, which when the police arrested him they took off of him, which
that ballistics expert that he referred to said matched those slugs.
(#44 at 132) (citing 24 RR 33). Granger focuses only on the opening clause of the prosecutor’s
argument, “Every single slug that was found in the courthouse.” He argues this clause was
inaccurate because four bullet fragments found in or near the courthouse were not traced to any
weapon. Id. The prosecutor, however, immediately narrowed his reference to “every single slug
that was found in the courthouse” to the four specific bullets he mentioned. Granger does not
claim that any of the specific matches identified by the prosecutor were inaccurate—indeed they
were not. While the original clause of that argument, taken out of context, could be misleading,
the prosecutor promptly corrected it, and the brief misstatement was not flagrant or pervasive.
Darden, 699 F.2d at 1036 (“The relevant question is whether the prosecutors’ comments ‘so
infected the trial with unfairness as to make the resulting conviction a denial of due process.’”).
Moreover, even if the prosecutor’s statement could be construed as misleading, counsel
could still have reasonably chosen to avoid drawing attention to the fact that every bullet fragment
that could be identified had been connected to Granger’s gun. See id.; see also Lambert v.
McBride, 365 F.3d 557, 564 (7th Cir.) (“[W]e must note that there may very well be strategic
189
reasons for counsel not to object during closing arguments. Counsel may have been trying to
avoid calling attention to the statements and thus giving them more force.”), cert. denied, 543
U.S. 1027 (2004). Given that Granger had repeatedly denied shooting toward the courthouse at
all, the risk of highlighting the ballistics evidence was certainly great enough for reasonably
strategic counsel to decide silence was prudent. Granger fails to demonstrate deficient conduct
in these circumstances. Granger is not entitled to relief on this claim.
L.
Claim 13 (IATC): Granger’s right to due process was infringed when the
prosecutor called him a “Murdering Son of a Bitch” during Guilt-Phase crossexamination, and his right to the effective assistance of counsel was infringed by
the failure of trial counsel to object or seek a mistrial.
During the State’s guilt-phase cross-examination of Granger, he asked prosecutor Shettle
why “people automatically assume that [he is] lying” and why his word was not good enough.
23 RR 40. In response to Granger’s question, Shettle answered, “Because you’re a murdering son
of a bitch. That’s why.” Id. The judge then admonished the State “not to use that kind of
language.” Id. Granger complains that, despite the court’s intervention, counsel should have
objected or sought a mistrial to preserve error. (#44 at 135–38). Granger also argues that his due
process rights were violated by Shettle’s “emotion-fueled” outburst. Id. The Director contends
that the latter claim is procedurally barred, and that the former claim was reasonably rejected by
the state court. (#53 at 237–41).
1.
The Due Process Claim is Barred and, in the Alternative, Meritless
Granger raised his due process claim predicated on prosecutor Shettle’s comment on direct
appeal. Granger, 2015 WL 1875907, at *3. The TCCA held the record did not show a
contemporaneous objection, and Granger, therefore, had failed to preserve the claim for review.
Id. (citing TEX. R. APP. P. 33.1(a)). This procedural rule has been repeatedly upheld as adequate
and independent. Scheanette v. Quarterman, 482 F.3d 815, 823 (5th Cir. 2007); Turner, 481
190
F.3d at 301; Parr, 472 F.3d at 253; Amos v. Scott, 61 F.3d 333, 345 (5th Cir.), cert. denied, 516
U.S. 1005 (1995). Because the denial of this claim was based upon an adequate and independent
state procedural rule, and because Granger failed to allege cause or prejudice relating to his
default, the claim is barred.
In any event, his due process complaint lacks merit. To show reversible prosecutorial
error, the State’s allegedly improper argument must infect the trial with unfairness. See Darden,
477 U.S. at 181. This requires the petitioner to “show a reasonable probability ‘that but for these
remarks’ the result would have been different.” Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir.
1995), cert. denied, 518 U.S. 1022 (1996). Though the state court did not adjudicate Granger’s
due process claim on the merits, the state court’s fact findings on his adjudicated IATC claim are
entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1), which Granger fails to
rebut with clear and convincing evidence. See Austin v. Davis, 876 F.3d 757, 778 (5th Cir. 2017)
(“Section 2254(e)(1) limits our review of state-court fact findings, even if no claims were
presented on direct appeal or state habeas.”), cert. denied, 138 S. Ct. 2631 (2018); Murphy, 901
F.3d at 594–95 (finding that, where the TCCA dismissed Murphy’s state habeas application as an
abuse-of-the-writ “[b]ased on the trial court’s findings,” even the trial court’s alternative merits
findings were entitled to deference under § 2254(e)(1)). Granger fails to show that prosecutor
Shettle’s comment rose to the level of reversible error.
For example, in Darden, the prosecutor referred to the defendant as an “animal,” argued
that the defendant should not be allowed out of prison unless on a leash, and wished that the
defendant’s face had been “blown away with a shotgun.” 477 U.S. at 180 nn.11 & 12. The Court
found that, though such comments were undoubtedly improper, “it ‘is not enough that the
prosecutors’ remarks were undesirable or even universally condemned.’” Id. at 181 (quoting
191
Darden, 699 F.2d at 1036). They must render his trial fundamentally unfair. Id. If the comments
in Darden did not deprive the petitioner of a fair trial, Granger being called “a murdering son of
a bitch” does not either.
Here, the state habeas court specifically found that Granger invited the response when he
“began to ask the prosecutor questions” and insisted that he answer. SHCR-01.Supp.2 at 191; see
Granger, 2015 WL 1875907, at *3. The Darden Court explained that “the idea of ‘invited
response’ is used not to excuse improper comments, but to determine their effect on the trial as
a whole.” 477 U.S. at 182 (citing United States v. Young, 470 U.S. 1, 13 (1985)); see Ries, 522
F.3d at 530 n.7 (citing Darden, 477 U.S. at 182)). As in Darden, “[t]he weight of the evidence
against [Granger] was heavy; hence, the ‘overwhelming eyewitness and circumstantial evidence
to support a finding of guilt on all charges’ reduced the likelihood that the jury’s decision was
influenced by argument.” 477 U.S. at 182 (internal citations omitted). There is no unfairness
here.29 Granger fails to show that he is entitled to habeas relief on this claim.
2.
The State Court’s Adjudication of Granger’s IATC Claim was Reasonable
Granger fails to demonstrate that the state court’s rejection of his claim was unreasonable.
See SHCR-01.Supp.2 at 196; Ex parte Granger II, 2017 WL 3379285, at *4. Indeed, a decision
not to object is a matter of trial strategy, Drew, 964 F.2d at 423, counsel had such strategy here.
In their affidavits submitted to the state habeas court, counsel noted that the decision of whether
to object is one made in microseconds.
SHCR-01.Supp.2 at 183.
Counsel recalled the
complained-of incident, however, and believed that allowing the State to attack Granger personally
29
Granger cites several cases to show that the State’s comment was improper. (#44 at 149–50) (citing Berger
v. United States, 295 U.S. 78 (1935); United States v. Diaz-Carrion, 915 F.2d 951 (5th Cir. 1990); United
States v. Murray, 888 F.2d 24 (5th Cir. 1989)). These cases, however, were decided on direct review of
federal criminal prosecutions, and the Fifth Circuit has reminded federal habeas courts to be wary of imposing
the same standards on state and federal prosecutors. See Ries, 522 F.3d at 530 (quoting Kirkpatrick v.
Blackburn, 777 F.2d 272, 281 (5th Cir. 1985), cert. denied, 476 U.S. 1178 (1986)).
192
could garner consideration in Granger’s favor. Id. In fact, prosecutor Shettle was immediately
admonished by the trial court “not [to] use that kind of language,” 23 RR 40, further solidifying
counsels’ belief that perhaps the State’s emotional response would ingratiate Granger to the jury.
The state habeas court found that there was “sufficient reason . . . not to object to the comments.”
SHCR-01.Supp.2 at 191; see id. at 196 (“A plausible basis existed for trial counsel’s failure to
object.”). Given that Granger fails to show that the comment was fundamentally unfair, he does
not show deficient performance in failing to object. See Ries, 522 F.3d at 530 (objection must
have merit).
Granger also fails to show the state court’s determination of no prejudice was
unreasonable. As discussed above, the state court found that Granger invited the response.
SHCR-01.Supp.2 at 191. By the time Shettle gave the complained-of answer, Granger had asked
him two other questions. See 23 RR 39 (“A. Well that’s the only answer I have. How is it
convenient?”), 40 (“You say it’s really convenient for me?”). Shettle did not answer Granger’s
question until Granger insisted. Id. at 40 (“[Granger]: Why is it that people automatically assume
that I’m lying? Why . . . isn’t my word good enough? [Shettle]: You want me to answer that
question? [Granger]: Yeah, answer it.”).
Where the client invited an arguably objectionable response, it is not reasonably probable
that trial counsels’ objection would have made any difference in the outcome of the proceeding.
See SHCR-01.Supp.2 at 196 (holding Granger failed to demonstrate prejudice where “prosecutor’s
comments, if improper, were harmless, given the record as a whole”); see also Schriro, 550 U.S.
at 476–77 (because of petitioner’s “established recalcitrance, [petitioner] could not demonstrate”
Strickland prejudice). This is especially true when considering Granger’s increasingly hostile,
combative, and belligerent behavior during the remainder of his cross-examination. See, e.g., 23
193
RR 42 (Granger admonished by the court to answer just the question asked), 23 RR 44 (Granger
fighting with the court as to whether he was answering the question asked). “Although the
prosecutor’s comments were, perhaps, not a model of decorum, given the demeanor of [Granger]
all during the trial[,] the prosecutor’s comments were harmless.” SHCR-01.Supp.2 at 191.
Moreover, Granger cannot show prejudice given the considerable evidence establishing his
guilt. Namely, the State established that Granger was the only person firing a weapon before
Sebolt was on the ground and the first law enforcement officer responded. Granger fails to show
that the state court unreasonably determined that he could not demonstrate prejudice. SHCR01.Supp.2 at 196. This claim is denied.
M.
Claim 14 (Atkins and IATC):
Because Granger’s brain damage and
psychosis—defects beyond his control—are morally indistinguishable from
intellectual disability, he is categorically ineligible for the death penalty, and his
counsel were ineffective for failing to make that claim.
Granger claims that his evidence of brain damage and psychosis are morally
indistinguishable from intellectual disability, and, thus, he is categorically ineligible for the death
penalty under Atkins v. Virginia, 536 U.S. 304 (2002).30 (#44 at 152–56). In a canned argument,
with no application to him personally, Granger asserts that the court should declare him “ineligible
for the death penalty because his conditions undermine his moral culpability, and because his
conditions originated in his biology, not his choice.” (#44 at 156). Even though the title of this
claim asserts that Granger is raising an IATC claim, it contains no argument that any counsel was
ineffective for failing to raise this argument in the state courts below. (#44 at 152–56).
In response, the Director contends that Granger never presented this claim for state court
review; and it is, therefore, unexhausted and procedurally defaulted. In the alternative, the
30
Granger’s evidence of brain damage and psychosis is new evidence that was not presented to the state habeas
court and Granger failed to show that any of the necessary elements of 28 U.S. U.S.C. § 2254(e)(2)(A)
applied. See court’s analysis of Claims 6 and 7 above discussing Granger’s new mental health evidence.
194
Director asserts the claim is without merit.
(#53 at 242–44).
The Director also notes
that—despite the title of this claim—Granger fails to raise an argument regarding ineffective
assistance of counsel in the body of his argument. Granger “does not specify which counsel—trial
or appellate—and he makes no other reference to counsel in the body of his briefing. A passing
reference to ineffective assistance of unspecified counsel is insufficient to raise a claim.” (#53 at
242 n.58). The Director argues that the claim is thus forfeited.
Granger did not present his functional–Atkins claim in either his direct appeal or his initial
state habeas application. See Granger, 2015 WL 1875907, at *3–7; 1 SHCR-01 at 3–6. Despite
requesting and a receiving a stay to return to state court from this court (see #34), Granger did not
raise an Atkins claim in Ex parte Granger II, either. 59 SHCR-02 at 11–14. Granger has not
fairly presented his Atkins claim to the state courts for review. See Parr, 472 F.3d at 252
(exhaustion is met “when the substance of the federal habeas claim has been fairly presented to
the highest state court” (quoting Smith v. Dretke, 422 F.3d 269, 275 (5th Cir. 2005))).
Given Texas’s restriction on subsequent writ applications, the TCCA would find the claim
procedurally barred under its abuse-of-the-writ doctrine if he returned to the state habeas court yet
again, and the claim is therefore procedurally defaulted.
See Coleman, 501 U.S. at 735
n.1;Woodfox, 609 F.3d at 793 (“If a prisoner fails to exhaust state remedies and the court to which
the prisoner would be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred . . . ‘federal courts are barred from reviewing
those claims.’” (quoting Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)); TEX. CODE OF
CRIM. PROC., art. 11.071 § 5.
Granger does not argue any exception to the procedural default of his claim, nor can he for
the reasons stated above—namely, this functional–Atkins claim does not meet the miscarriage-of195
justice exception, and Martinez does not apply to non-IATC claims. This claim is procedurally
barred, and the default is not excused. This claim is denied.
As Granger did not present an argument that his counsels’ performance was deficient under
Strickland for failing to present an Atkins claim, any ineffective of assistance claim is waived and
foreclosed from federal habeas review. Any IAC claim in this context is denied.
N.
Claim 15: Granger’s death sentence is inconsistent with the evolving standards
of decency that mark the progress of a maturing society.
Granger asserts that his death sentence is unconstitutional under the Eighth and Fourteenth
Amendments31 because capital punishment defies evolving standards of decency, operates
arbitrarily, fails to serve any valid penological purpose, and inflicts torture. (#44 at 156–58).
Granger raises a generic argument that the death penalty is unconstitutional under evolving
standards of decency and that his prolonged stay on Texas’s death row is also unconstitutional.
(#44 at 156–58). In response, the Director contends that Granger’s claim is procedurally defaulted
and without merit. (#53 at 244–47).
1.
Granger’s Eighth Amendment Claim is Procedurally Defaulted
Granger asserts that this claim was “substantially raised” in a pretrial motion but denied
by the trial court and not raised on direct appeal. (#44 at 158). The claim, according to Granger,
was then once again “substantially raised” in his state habeas application, but the TCCA barred
it “because habeas is not a substitute for matters which should have been raised on direct appeal.”
31
In addition to making an Eighth Amendment challenge—the only law supporting an evolving standards of
decency claim—he asserts, without citation or briefing, the following bases for this claim: the Fifth, Sixth,
and Fourteenth Amendments, “decisional law and other mandatory rules,” and international law. (#44 at
156). Simply stating possible legal foundations, without argument or supporting case law, is inadequate
briefing, so the “claims” founded upon them are forfeited. See United States v. Stalnaker, 571 F.3d 428,
439–40 (5th Cir. 2009) (finding claims forfeited when appellant merely provided “a laundry list of
grievances,” but did “not fully explain them and often [did] not cite the record or relevant law”). In addition
to being waived, arguments under the Fifth, Sixth, Fourteenth Amendments, etc., are procedurally barred
for not having been raised in state court.
196
Id. (quoting Ex parte Granger I, 2017 WL 3379285, at *4). Granger argues the state procedural
bar is inadequate to render the claim procedurally defaulted. Id. He is mistaken.
First, the pretrial motion upon which Granger relies claimed that “capital jurors are not
making sentencing decisions consistent with state and federal constitutional mandates.”
2
CR.Supp.2 at 265. Not once did this motion mention “evolving standards of decency,” but rather
it focused on supposed flaws in the sentencing process. 2 CR.Supp.2 at 198–267. This pretrial
motion is not similar to Granger’s current claim. Second, while Granger asserts that his Eighth
Amendment claim was raised in his state habeas application, he does not cite to the record. The
only identifying information Granger provides is that the supposed state court analogue was barred
for not having been raised on direct appeal. The four claims barred under that ground in state
court—Claims 7, 8, 9, and 10—also do not assert that evolving standards of decency render the
death penalty unconstitutional. 1 SHCR-01 at 98–124. The closest he comes is in Claim 9, and
that claim is much like Granger’s pretrial complaint—that death sentences are being arbitrarily
imposed. 1 SHCR-01 at 109–19. Again, that is not an evolving-standards-of-decency claim under
the Eighth Amendment. As such, Granger failed to present this claim in state court.
As previously discussed, the failure to present a claim in state court results in procedural
default. See, e.g., Sones, 61 F.3d at 416 (noting that “when ‘it is obvious that the unexhausted
claim would be procedurally barred in state court, we will forego the needless ‘judicial ping-pong’
and hold the claim procedurally barred from habeas review’” (quoting Steele v. Young, 11 F.3d
1518, 1524 (10th Cir. 1993))). Such is the case here. Granger does not assert that he can
overcome the default, which he cannot. This claim is denied.
197
2.
Granger’s Eighth Amendment Claim Lacks Merit
The AEDPA greatly limits the ability of this court to grant federal habeas corpus relief
when a state court has acted in a manner consistent with clearly established federal law, as set
forth by the Supreme Court. The Court recently reaffirmed the constitutional vitality of capital
punishment. See Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019) (“The Constitution allows
capital punishment.”). Because the Court has never declared the death penalty unconstitutional
per se, the application of the death sentence to Granger’s conviction is wholly consistent with
clearly established federal law and does not furnish a basis for federal habeas corpus relief. The
death penalty, as assessed in Granger’s case, is constitutional. Granger’s claim, moreover,
violates Teague. See Luna v. Davis, No. SA-15-CA-451-XR, 2018 WL 4568667, at *36 (W.D.
Tex. Sept. 24, 2018).
Granger also argues that his extended time on death row renders his sentence
unconstitutional. Such allegations are often referred to as Lackey claims. See Lackey v. Texas,
514 U.S. 1045, 1045 (1995) (Stevens, J., respecting denial of certiorari). Such claims also fail
under Teague. See White v. Johnson, 79 F.3d 432, 437–38 (5th Cir. 1996). They fail on their
merits, too. See ShisInday v. Quarterman, 511 F.3d 514, 526 (5th Cir. 2007) (citing Felder v.
Johnson, 180 F.3d 206, 215 (5th Cir.) (rejecting argument that executing petitioner after 20 years
on death row was unconstitutional and stating that the claim bordered on being legally frivolous),
cert. denied, 528 U.S. 1067 (1999)), cert. denied, 555 U.S. 815 (2008). Binding precedent
requires denial of the claim. Granger has not shown that he is entitled to habeas corpus relief on
this claim.
198
O.
Claim 16: The presentation of evidence of “extraneous” conduct violates the Fifth,
Sixth, Eighth, and Fourteenth Amendments.
Granger contends that the presentation of extraneous offense evidence at the punishment
phase violated his Fifth Amendment right to a presumption of innocence, his Sixth Amendment
jury trial guarantee, and his Eighth and Fourteenth Amendment rights to reliable sentencing. (#44
at 159–61). Granger also asserts that trial counsel failed to object to the prosecutor’s reference
in closing argument to prior bad acts or to the instructions given to the jury on these bases, which
allowed the jury to consider such acts without finding beyond a reasonable doubt, that Granger
committed them. (Id. at 160).
The Director points out that Granger never presented these claims for state court review.
The claims, therefore, are unexhausted and procedurally defaulted. (#53 at 247–51). The claims
also fail on de novo review and should be denied. (Id.).
1.
These Claims are Unexhausted and Procedurally Defaulted
Granger admits that these claims were not raised on direct appeal or initial collateral
review. (#44 at 160). Granger contends that he “attempted to pursue th[ese] claim[s]” in his
subsequent application; however, his second time state writ application was denied as an abuse of
the writ.32 See SHCR-02 at 11–14; Ex parte Granger II. He further asserts that “state habeas
counsels’ ineffectiveness in not challenging trial counsels’ ineffective performance in voir dire33
32
Granger raised the failure to object to the State’s closing argument claim that he now presents as Claim 10.
Cf. (#44 at 125-127) with SHCR-02 at 115–17. He also raised two death-penalty challenges which correspond
to his federal claims 19 and 20. Cf. (#44 at 171–78) with SHCR-02 at 139–27. None of these claims,
however, are predicated on a failure to impose a beyond-reasonable-doubt standard on extraneous offenses
introduced at a capital sentencing proceeding.
33
The court presumes that Granger did not intend to reference “voir dire” at this point in his argument.
199
excuses any default, alone and in combination with other instances of their deficiency set forth in
this petition.” (#44 at 161).
Granger’s Fifth, Sixth, Eighth, and Fourteenth Amendment claims are procedurally
defaulted for failure to exhaust them in state court. See Ex parte Granger II. Granger’s
perfunctory reference to Martinez does not save him, as Martinez does not apply to non-IATC
claims, so his Fifth, Sixth, Eighth, and Fourteenth Amendment claims are barred and cannot be
reviewed by the court. Martinez, furthermore, does not save his IATC claim because, as
explained below, it is entirely meritless and insubstantial.
2.
In the Alternative, this Claim is Meritless
Circuit precedent is clear: “[T]he admission of unadjudicated offenses in the sentencing
phase of a capital trial does not violate the [E]ighth and [F]ourteenth amendments.” Williams v.
Lynaugh, 814 F.2d 205, 208 (5th Cir.) (“Evidence of these unadjudicated crimes is clearly
relevant to the jury’s task of determining whether there is a probability that [the defendant] would
continue to commit acts of violence as required by [the] special [issues].”), cert. denied, 484 U.S.
935 (1987); see Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005) (“[T]here is no constitutional
prohibition on the introduction at a trial’s punishment phase of evidence showing that the
defendant has engaged in extraneous, unadjudicated, criminal conduct.”), cert. denied, 564 U.S.
1217 (2006). Neither the Fifth Circuit nor the Supreme Court has held that the State must prove
unadjudicated offenses beyond a reasonable doubt before they may be used at sentencing. See
Brown, 419 F.3d at 376–77; Harris v. Johnson, 81 F.3d 535, 541 (5th Cir.), cert. denied, 517
U.S. 1227 (1996). Therefore, Eighth Amendment or due process challenges to the admission of
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unadjudicated extraneous offenses during sentencing are Teague-barred. Brown, 419 F.3d at
376–77; Beazley, 242 F.2d at 262.
Granger does not address this authority, instead relying on Ring v. Arizona, 536 U.S. 584
(2002). (See #44 at 159–60). Ring holds that death-eligibility factors are the functional equivalent
of elements of the greater offense and must therefore be found by the jury beyond a reasonable
doubt. 536 U.S. at 589. Ring is inapplicable here. In Texas, the “aggravating factors”—which
are sufficient to increase the maximum possible punishment a defendant can receive to
“death”—are established when the jury finds a defendant guilty of capital murder. T EX. PENAL
CODE §§ 12.31(a) (a defendant found guilty of a capital felony can be punished by life
imprisonment or death), 19.03(a)–(b) (enumerating ten specific circumstances which constitute a
capital felony). The concerns addressed in Ring are disposed of under Texas law at the guilt phase
of the trial. See Adams v. Thaler, 421 F. App’x 332, 334–35 (5th Cir.) (citing Granados v.
Quarterman, 455 F.3d 529, 536 (5th Cir. 2006) (“In sum, the state was required to prove beyond
a reasonable doubt every finding prerequisite to exposing Granados to the maximum penalty of
death.”)), cert. denied, 565 U.S. 942 (2011).
Granger cites no case law extending Ring to the extraneous-offense context, and his request
that Ring be extended notwithstanding the absence of precedent is barred by Teague. See Jackson
v. Dretke, 181 F. App’x 400, 410 (5th Cir.) (finding claim that trial court should have instructed
capital sentencing jury that unadjudicated extraneous offenses needed to be proven beyond a
reasonable doubt to be barred by Teague), cert. denied, 549 U.S. 1016 (2006). Because Granger
provides no legal support for his argument, his claim is waived. See id. at 411 (finding waiver
where petitioner cited no authority for claim that admission of unadjudicated extraneous offense
201
evidence violates Eighth and Fourteenth Amendments); see also Summers v. Dretke, 431 F.3d
861, 870 (5th Cir. (2005), cert. denied, 549 U.S. 840 (2006).
Because any objection or motion by trial counsel based on these theories would be futile,
Granger cannot demonstrate any deficiency in trial counsels’ performance. See Ries, 52 F.3d at
530 (holding that counsel is not ineffective for failing to object because proposed objection was
of questionable merit, and petitioner had not shown reasonable probability of objection being
sustained); Nixon v. Epps, 405 F.3d 318, 328 (5th Cir.) (no deficient performance under
Strickland where objection would have been fruitless), cert. denied, 546 U.S. 1016 (2005).
Moreover, as Granger acknowledges, counsel tried to preclude the admission of unadjudicated
extraneous offense evidence based on Ring, but the trial court denied it. See 3 CR.Supp.2 at
437–44; 5 RR 40.
Unlike Granger, counsel recognized that his request was “not the current state of the law”
and would in effect “be making new law.” 5 RR 40. Further, objecting during closing argument
would only call attention to the evidence, and counsel was reasonable not to do so. See Nixon,
405 F.3d at 328 (“If anything, counsel’s decision not to object, and thereby highlight the
prosecution’s arguments to the jury, was a prudent trial decision.”). Thus, Granger cannot
demonstrate deficient performance or prejudice because any objection would have been unavailing.
Claim 16 fails on de novo review. Granger is not entitled to habeas relief based on this claim.
P.
Claim 17: The jury’s determination of Special Issue One lacked the guided
discretion required by the Eighth and Fourteenth Amendments, because the terms
of the question are vague and undefined, and the use of “probability” undermines
the State’s burden of proof.
Granger argues that the future dangerousness special issue is unconstitutionally vague
because it fails to define the terms “probability,” “criminal acts of violence,” and “continuing
202
threat to society.” (#44 at 161–62). Granger complains that, without a definition of these terms,
the issue fails to narrow the class of death-eligible defendants, while the use of the word
“probability” undermines the State’s burden of proof. (Id.).
The Director responds that Granger’s challenge to the future dangerousness special issue
is procedurally barred. He also contends that this claim is barred by an independent and adequate
state-law ground and that the claim fails on the merits. (#53 at 251–53).
1.
This Claim is Procedurally Barred
Granger raised his challenge to the future dangerousness special issue for the first time on
state habeas review. The TCCA held that the claim was procedurally barred “because habeas is
not a substitute for matters which should have been raised on direct appeal.” Ex parte Granger,
2017 WL 3379285, at *4. Relying on a single dissenting state court opinion, Granger contends
that the TCCA’s ruling is neither firmly established nor consistently followed and thus does not
bar federal habeas review. (See #44 at 158, 162) (citing Ex parte Carter, 521 S.W.3d 344,
359–60 (Tex. Crim. App. 2017) (Alcala, J., dissenting)).
The Fifth Circuit, however, has repeatedly upheld the adequacy of this state procedural
bar. See, e.g., Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007), cert. denied, 552 U.S.
1232 (2008); Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005), cert. denied, 547 U.S. 1136
(2006); see also Scheanette, 482 F.3d at 827–28 (court upholding procedural bar on challenge to
use of “probability” (citing Busby, 359 F.3d at 718–19). Granger’s claim is barred, and he makes
no effort to demonstrate any exception to the procedural bar. Granger is not entitled to habeas
corpus relief on this claim.
203
2.
In the Alternative, the State Court Reasonably Rejected the Claim
Granger’s claim also fails on the merits. The state court alternatively found that the TCCA
has consistently and repeatedly: upheld the constitutionality of the Texas death penalty scheme;
held that the terms “deliberately,” “criminal acts of violence,” and “continuing threat to society”
require no special definitions; and held that T EX. CODE OF CRIM. PROC., art. 37.071, is not
unconstitutional for lack of definition. SHCR-01.Supp.2 at 198–99 (collecting cases).
Federal courts, too, have repeatedly rejected similar challenges to Texas’s future
dangerousness special issue. See Johnson v. Texas, 509 U.S. 350, 373 (1993); Franklin v.
Lynaugh, 487 U.S. 164, 171 (1988); Jurek v. Texas, 428 U.S. 262 (1976); Pulley v. Harris, 465
U.S. 37, 50 n.10 (1984); see also Sprouse v. Stephens, 748 F.3d 609, 622–23 (5th Cir.) (denying
COA on constitutional-vagueness challenge to “probability,” “criminal acts of violence,” and
“continuing threat to society” as not running afoul of Supreme Court precedent), cert. denied, 574
U.S. 993 (2014); Scheanette, 482 F.3d at 827–28 (denying COA on claim that failure to define
“probability” dilutes states burden of proof); Turner, 481 F.3d at 299; Leal v. Dretke, 428 F.3d
543, 553 (5th Cir. 2005), cert. denied, 547 U.S. 1073 (2006).
The Fifth Circuit also has specifically rejected Granger’s allegation that the use of
“probability” violates Ring. (See #44 at 161–62). In Turner, the court explained that capital
juries make two determinations: (1) eligibility for the death penalty; and (2) selection of the
penalty. 481 F.3d at 299; see Tuilaepa v. California, 512 U.S. 967, 971 (1994). As to eligibility
for the death penalty, the jury must find an aggravating circumstance, which cannot be
“unconstitutionally vague.” Turner, 481 F.3d at 299 (citing Tuilaepa, 512 U.S. at 972). As to
the selection of the penalty, “the jury must be allowed to make ‘an individualized determination’
204
and . . . may even be given ‘unbridled discretion in determining whether the death penalty may
be imposed.’” Id. (citing Tuilaepa, 512 U.S. at 972, 979–80). Given that Texas law requires the
eligibility determination to be made at the guilt-innocence phase, Ring is not applicable to any
discussion of the constitutional requirements of the selection phase. Id. at 300.
Because controlling federal law upholds the constitutionality of the Texas future
dangerousness issue, Granger’s argument is barred by Teague. See Scheanette, 482 F.3d at 827.
Any argument that the state court’s adjudication of this claim was unreasonable is plainly
contradicted by Supreme Court and Fifth Circuit precedent. SHCR-01.Supp.2 at 198–99.
Granger’s Claim 17 is procedurally barred and fails on the merits.
Q.
Claim 18 (10/12 Rule): Granger’s rights under the Sixth, Eighth, and Fourteenth
Amendments were violated because the trial court did not instruct the jury that a
vote for life by one juror would result in a life sentence.
In Claim 18, Granger contends that the Texas capital sentencing scheme, facially and as
applied, violates the Sixth, Eighth, and Fourteenth Amendments. 34 (#44 at 162–71). Usually in
the punishment phase of the trial, a jury will answer three special issues under the Texas capital
sentencing scheme. In Granger’s punishment-phase trial, however, the jury answered only two
questions: (1) will the defendant be a future danger to society; and (2) do sufficient circumstances
mitigate against a death sentence. See TEX. CODE CRIM. PROC., art. 37.071 § 2(b).
The Texas statute requires jurors to answer the future-dangerousness issue first. See id.
at § 2(d). In a provision called the “10-12” or “12-10” Rule, the statute requires instructing the
34
Under Texas law, up to three special issues are submitted to the jury during the sentencing phase of a capital
trial: (1) whether there is a probability that the defendant constitutes a continuing threat to society; (2)
whether the defendant actually caused, intended, or anticipated the death of the deceased; and (3) whether,
considering all of the evidence, there are sufficient mitigating circumstances to warrant life without parole
rather than death. TEX. CODE CRIM. PROC., art. 37.071 § (2)(b)(1)–(2), (e)(1). Here, Granger is challenging
Special Issue Nos. 1 and 3—future dangerousness and mitigation.
205
jury that an affirmative answer to the future-dangerousness issue must be unanimous and the jury
“may not answer any issue ‘no’ unless 10 or more jurors agree.” See id. at § 2(d)(2). Under the
statute, “if the jury returns an affirmative finding” on the future-dangerousness issue, then jurors
must consider whether mitigating circumstances provide for a life sentence. See id. at § 2(e)(1).
A “no” answer on the mitigation question requires unanimity, but a “yes” answer requires only
10 votes. See id. at § 2(f). An answer resulting in a death sentence must be unanimous, but an
answer that would result in a life sentence requires only ten votes.
Here, Granger argues that the Texas statutory requirement that ten jurors must agree before
answering the future dangerousness special issue “no” and that ten jurors must agree before
answering the mitigation issue “yes” violates his constitutional rights. In order to sentence him
to death, Granger’s jury had to find unanimously that he posed a future danger to society and that
the mitigating evidence was insufficient to warrant a life sentence. If a single juror votes “no” on
the future dangerousness special issue, or “yes” on the mitigation special issue, then the defendant
receives a life sentence. TEX. CODE CRIM. PROC., art. 37.071 § 2(g).
Granger claims that the failure to provide instruction on how to proceed if the jury does
not agree on a sentence creates an unconstitutional risk of arbitrary and unreliable sentencing and
a risk of jury coercion.35 (Id. at 164) (citing Mills v. Maryland, 486 U.S. 367 (1988); Lockett v.
Ohio, 438 U.S. 586 (1978); Jenkins v. United States, 380 U.S. 445, 446 (1965)). Granger also
complains that the requirement that ten jurors must agree on an answer to a special issue before
a life sentence may be imposed diminishes a juror’s individual sense of responsibility by creating
35
Texas law specifies that if the jurors are “unable to answer any issue . . . the court shall sentence the
defendant to confinement in the institutional division of the Texas Department of Criminal Justice for life
imprisonment without parole.” TEX. CODE CRIM. PROC., art. 37.071 § 2(g). A life sentence results when
jurors cannot reach the required number of votes on answers that would result in a death sentence. Texas
law, however, forbids the court or counsel from informing the jury “of the effect of a failure of a jury to
agree” on the special issues. Id. § 2(a)(1).
206
the impression that a single hold-out juror would be insufficient to affect the outcome. (Id. at
164–71) (citing Caldwell v. Mississippi, 472 U.S. 320 (1985); Ramos v. Louisiana, 140 S. Ct.
1390 (2020)).
The Director responds that Granger’s claim is procedurally barred by an independent and
adequate state-law ground. (#53 at 254–57). In the alternative, the Director states that Granger
fails to demonstrate that the state court’s rejection of his claim was unreasonable.
1.
The Claim is Procedurally Barred
Granger asserts that trial counsel moved to have the 10/12 rule declared unconstitutional,
2 CR Supp. 344-70, but the motion was denied. 5 RR 31. Granger’s appellate counsel did not
challenge the constitutionality of the 10/12 Rule on direct appeal. State habeas counsel challenged
the constitutionality of the rule; however, the TCCA concluded that the claim was “procedurally
barred because habeas is not a substitute for matters which should have been raised on direct
appeal.” (#44 at 171); see Ex parte Granger I, 2017 WL 3379285, at *4. Despite the dismissal
of this claim as procedurally barred by the TCCA, Granger asserts that Texas’s rule of disallowing
claims in state habeas that could have been raised on direct appeal is neither firmly established nor
consistently followed, and, thus, does not bar federal habeas review. (#44 at 171).
Granger is incorrect regarding the procedural bar. The Fifth Circuit has repeatedly upheld
the adequacy of this bar. See, e.g., Dorsey, 494 F.3d at 532; Aguilar, 428 F.3d at 535; see also
Scheanette, 482 F.3d at 827–28 (court upholding procedural bar on challenge to use of
“probability” (citing Busby, 359 F.3d at 718–19)). Granger further fails to demonstrate any
exception to the procedural bar. This claim is barred, and Granger is not entitled to habeas corpus
relief on this claim.
207
2.
Alternatively, the State Court’s Adjudication was Reasonable
In Granger I, Granger challenged the constitutionality of the 10/12 Rule contending that
his rights under the Sixth, Eighth, and Fourteenth Amendments were violated when the state court
was prohibited from instructing the jury that a vote by one juror would result in a life sentence.
SHCR-01 at 98-104. The state habeas court made a specific finding and conclusion that Granger’s
jury was “properly provided the proper instructions and asked to answer the statutorily mandated
issues as mandated by Tex. Code Crim. Proc. Art. 37.071,” and that Texas’s death penalty
scheme is constitutional per Saldano v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007), cert.
denied, 552 U.S. 1232 (2008). SHCR-01.Supp. at 329, 201. The state court held that Granger’s
10/12 claim lacked merit. SHCR-01.Supp.2 at 198.
Addressing this same type issue, the Supreme Court has held that “the Eighth Amendment
does not require that the jurors be instructed as to the consequence of their failure to agree.”
Jones v. United States, 527 U.S. 373, 381 (1999). In Jones, a capital defendant wished to inform
the jury that a life sentence without parole would be imposed if it could not reach a punishment
verdict. Id. at 380–81. The Court held:
[T]he proposed instruction has no bearing on the jury’s role in the sentencing process.
Rather, it speaks to what happens in the event that the jury is unable to fulfill its role
. . . Petitioner’s argument . . . appears to be that a death sentence is arbitrary within
the meaning of the Eighth Amendment if the jury is not given any bit of information
that might possibly influence an individual juror’s voting behavior. That contention
has no merit.
Id. at 382.
Relying on Jones, the Fifth Circuit has repeatedly rejected similar 10/12 Rule challenges.
See Sprouse, 748 F.3d at 622–23 (holding circuit precedent and Jones foreclose COA on whether
failure to inform jury of consequences of hold-out juror is constitutional); Blue, 665 F.3d at
208
669–70 (holding “Jones insulates the [10/12] Rule from constitutional attack”); Druery v. Thaler,
647 F.3d 535, 543–44 (5th Cir. 2011) (acknowledging Jones and rejecting argument, under
Caldwell, 472 U.S. at 320, that failure to inform jurors of consequence of failure to agree relieves
them of individual responsibility), cert. denied, 565 U.S. 1207 (2012).
The Fifth Circuit has denied the same arguments underlying Granger’s challenge to the
Texas capital sentencing scheme’s requirement of jury unanimity for a verdict favorable to the
prosecution but only ten votes for a verdict favorable to the defense on the capital sentencing
special issues. See, e.g., Blue, 665 F.3d at 669–70 (rejecting an Eighth Amendment challenge
to the Texas 10/12 rule); Jacobs v. Scott, 31 F.3d 1319, 1328–29 (5th Cir. 1994) (“Under the
Texas system, all jurors can take into account any mitigating circumstance. One juror cannot
preclude the entire jury from considering a mitigating circumstance.”), cert. denied, 513 U.S.
1067 (1995).
The cases upon which Granger relies do not undercut these precedents. The Fifth Circuit
has rejected challenges to Texas’s 10/12 Rule predicated on Mills, Lockett, and Caldwell. See
Allen, 805 F.3d at 631–32 (rejecting argument that sentencing process violated Mills because
jurors may believe that they do not have the individual ability to prevent death sentence); Druery,
647 F.3d at 542–44; Alexander v. Johnson, 211 F.3d 895, 897 n.5 (5th Cir. 2000) (expressly
rejecting contention that 10/12 Rule prevents jurors from considering mitigating circumstances).
Granger’s reliance on Jenkins, 380 U.S. at 446, is misplaced as Jenkins does not address the 10/12
Rule or Jones. Rather, in Jenkins, after the jury indicated that they were unable to agree upon a
verdict because of insufficient evidence, the judge told the jury, “You have got to reach a decision
in this case.” 380 U.S. at 446. In briefing to the Court, the respondent essentially conceded that,
209
if the Court concluded that the judge’s statement was coercive, the judgment should be reversed
under “the principle that jurors may not be coerced in surrendering views conscientiously held[.]”
Id. The Court granted relief, agreeing that the judge’s statement did indeed have a coercive effect.
Id. Such blatant coercion did not occur in this case, and Granger does not address any of the
above cited, binding precedent.
Granger cites to Ramos, 140 S. Ct. at 1397, for the proposition that the 10/12 Rule
unconstitutionally “disempowers the single juror who sails against the wind.” (See #44 at
168–71). Ramos, however, was decided three years after the state court adjudicated Granger’s
claim. Cf. Ramos, 140 S. Ct. at 1390 (decided April 20, 2020), with Ex parte Granger I, 2017
WL 3379285 (decided May 17, 2017). Ramos cannot be used to demonstrate the unreasonableness
of the state court adjudication because it was not clearly established precedent at the time of the
adjudication. See § 2254(d); cf. Shoop, 139 S. Ct. at 507–09 (criticizing a federal court for
relying on Moore, 137 S. Ct. at 1039, to assess the reasonableness of a state court’s pre-Moore
adjudication of an intellectual disability claim under § 2254(d)). In any event, it does not
undermine the state court’s decision, as Ramos held that “‘the Sixth Amendment’s right to a jury
trial requires a unanimous verdict to support a conviction,’ not a sentence.” See Ruiz v. Davis,
819 F. App’x 238, 246 n.9 (5th Cir. 2020) (quoting Ramos, 140 S. Ct. at 1397), cert. denied, 142
S. Ct. 354 (2021). “Ramos is of no moment” to Granger’s sentencing challenge. Id.
Granger effectively asks the court to adopt a new rule of constitutional criminal procedure,
but that request is barred by Teague. See Blue, 665 F.3d at 670 (to the extent “10/12 Rule”
challenge urges adoption of new rule, it is barred under Teague); Hughes v. Dretke, 412 F.3d 582,
593–94 (5th Cir. 2005) (rejecting Eighth Amendment challenge to “10/12 Rule” as Teague-
210
barred), cert. denied, 546 U.S. 1177 (2006); see also In re Sharp, 969 F.3d 527, 529 (5th Cir.
2020) (“Even if we further assume that Ramos constitutes a ‘new rule of constitutional law,’ the
Supreme Court plainly has not made it retroactive to cases on collateral review.”). The state
court’s rejection of Granger’s claim was not objectively unreasonable. SHCR-01.Supp.2 at 198.
The TCCA’s rejection of Granger’s state habeas challenge to the constitutionality of
Texas’s 10/12 Rule was neither contrary to, nor involved, an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States, nor resulted
in a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in Granger’s trial. Granger is not entitled to habeas corpus relief on this claim.
R.
Claim 19 (Mitigation Special Issue): The trial court’s instructions and the
prosecutor’s arguments limited the jury’s ability to give effect to mitigating
evidence, in violation of the Eighth and Fourteenth Amendments.
Claim 20 (Definition Claim): The trial court erred in failing to instruct the jury
that mitigating circumstances do not need to be proved beyond a reasonable doubt,
violating Granger’s Eighth and Fourteenth Amendment rights; trial counsel were
ineffective for failing to move for a proper instruction or object to the instruction
as given.
In Claims 19 and 20, Granger raises two Eighth Amendment challenges to the mitigation
special issue: (1) that the statutorily-required definition of mitigating evidence impermissibly
limited the jury’s consideration of mitigating evidence (#44 at 171–75) (the “definition” claim);
and (2) that the absence of a burden-of-proof instruction unconstitutionally limited the jury’s
ability to consider and give effect to his mitigating evidence (id. at 175–77) (the “burden-of-proof”
claim). Granger also alleges that trial counsel were ineffective for failing to object on these
grounds. (See id. at 174–75, 178).
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The Director responds that Granger’s challenges to the mitigation special issue are
procedurally barred. (#53 at 257–63). The Director also argues that the state court reasonably
adjudicated these claims. The Director further contends that Granger’s definition claim was
reasonably rejected by the state court, and the remainder of his claims are meritless on de novo
review.
1.
The Claims are Procedurally Barred
Granger admits that he raised the underlying definition claim but did not raise the related
IATC claim on initial state habeas review. (#44 at 174–75). Granger’s definition claim is also
barred because the state habeas court rejected it on an independent and adequate state law ground.
See Ex parte Granger I, 2017 WL 3379295, at *4.
Further, Granger admits that he did not raise the burden-of-proof claim or attendant IATC
claim on initial state habeas review. (Id. at 178). He admits that he raised all of the above claims,
as presented in the instant petition, in a second state habeas application, which the TCCA rejected
as an abuse of the writ without addressing the merits. (Id. at 175, 178). These admissions
establish procedural default.
Granger’s only argument for overcoming these defaults is a
perfunctory reference to Martinez. Id. Martinez, however, does not excuse defaulted non-IATC
claims, and, in any event, because all the claims are meritless, Martinez does not benefit him.
Granger’s claims are procedurally barred.
2.
Alternatively, Granger’s claims were Reasonably Rejected or Meritless
a.
The State Court Reasonably Rejected the Definition Claim
Granger complains that the definition of mitigation under T EX. CODE OF CRIM. PROC., art.
37.071 § 2(f)(4), impermissibly limited the jury’s consideration of his mitigation evidence and
effectively instructed the jury to disregard mitigating evidence that was unrelated to his moral
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culpability. (#44 at 171–75). Granger contends that the jury may have been unable to consider
evidence that Granger was kind toward children and had no relationship with his own father, and,
as a consequence, the State was able to exploit the definition “to force home the idea that the jury
should not consider much of [Granger]’s mitigation case.” (Id. at 173.) The state court’s
rejection of his claim, see SHCR-01.Supp.2 at 203, however, is indisputably correct in light of
Supreme Court and Fifth Circuit precedent. Accordingly, the AEDPA precludes relief.
A review of the mitigation instruction given shows that Granger’s capital-sentencing jury
was not denied a vehicle for expressing its reasoned, moral response to Granger’s mitigating
evidence. The trial court instructed the jury:
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 sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment rather than a death
sentence be imposed.
CR.Supp.3 at 8. The trial court further instructed that the jury should “consider mitigating
evidence to be evidence that a juror might regard as reducing the defendant’s blameworthiness.”
Id. at 9.
The Fifth Circuit has repeatedly held that “Texas’s definition ‘encompasses virtually any
mitigating evidence.’” Roach v. Quarterman, 220 F. App’x 270, 277 (5th Cir. 2007) (quoting
Beazley, 242 F.3d at 260); see McCoskey v. Thaler, 478 F. App’x 143, 150 (5th Cir. 2012) (“The
capacious definition of ‘mitigating evidence’ employed in the Texas statute can ‘encompass . . .
virtually any mitigating evidence.’”), cert. denied, 568 U.S. 1093 (2013). Furthermore, the
Supreme Court specifically commended the new statute as a “[a] clearly drafted catchall instruction
on mitigating evidence” and a model of “brevity and clarity.” Penry II, 532 U.S. at 802–03.
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The Fifth Circuit has soundly rejected Granger’s specific argument that the definition
unconstitutionally limits the categories of evidence that may be considered mitigating. See
Sprouse, 748 F.3d at 622; Blue, 665 F.3d at 663–68; Beazley, 242 F.3d at 259. In Blue, the
petitioner raised a similar claim arguing that due to the unconstitutionally narrow definition, a
reasonable juror would assume that “moral blameworthiness” relates only to those factors directly
related to the commission of the crime, while other socio-economic and psychological reasons for
the defendant’s behavior—such as evidence of “poor mental health, low IQ, and good conduct
while incarcerated”—were effectively beyond the jury’s reach. Id. at 665–66. The Fifth Circuit
found this argument to be foreclosed. Id. at 666–67 (relying on Beazley).
Further, Granger’s arguments to the contrary are barred by Teague’s nonretroactivity
principles. Granger thus has not shown that the state court’s denial of this claim resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
Supreme Court law or that the decision was based on an unreasonable determination of the facts
in light of the evidence presented. See SHCR-01.Supp.2 at 203. Granger’s claim does not merit
habeas corpus relief.
b.
Granger’s Remaining Claims are Meritless
Granger’s IATC claims and his burden-of-proof claim fail on de novo review. In his
burden-of-proof claim, Granger argues that the trial court erred by failing to instruct the jury that
mitigating circumstances do not need to be proven beyond a reasonable doubt. (#44 at 175–78).
Granger further argues that the error was effectively compounded by the fact that the jury
instructions on guilt, the future dangerousness special issue, and extraneous crimes or bad acts all
required beyond-a-reasonable-doubt findings and the jury therefore likely believed that all
findings, including mitigating circumstances, were required to be made beyond a reasonable doubt.
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(Id. at 176–77). Granger speculates that, without this instruction, the jury was unconstitutionally
limited in its ability to consider and give effect to his mitigating evidence. (Id. at 177–78) (citing
Penry I, 492 U.S. at 327–28; Lockett, 438 U.S. at 605).
The Supreme Court, however, has specifically rejected the contention that the Eighth
Amendment requires the trial court to instruct the jury that mitigating circumstances “need not be
proved beyond a reasonable doubt.” Kansas v. Carr, 577 U.S. 108, 118–22 (2016) (relying on
Buchanan v. Angelone, 522 U.S. 269 (1998), and Weeks, 528 U.S. at 225). The Court “doubt[ed]
whether it is even possible to apply a standard of proof to the mitigating-factor determination (the
so-called ‘selection phase’ of a capital-sentencing proceeding)” because it is “largely a judgment
call (or perhaps a value call)[.]” Id. at 119 (emphasis added). The Court further found “equally
unavailing” an “as applied” argument that suggested that a jury instruction was necessary in a
particular case to avoid confusion regarding the burden of proof. Id. at 120–21. “Ambiguity in
capital-sentencing instructions gives rise to constitutional error only if ‘there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.’” Carr, 577 U.S. at 120 (quoting Boyde, 494
U.S. at 380). “A meager ‘possibility’ of confusion is not enough.” Id. at 643.
Here, the jury instructions clearly required the State to prove that Granger would be a
future danger beyond a reasonable doubt but only required the jury to find that “a” mitigating
circumstance existed to warrant life. CR.Supp.3 at 7–9. Similar to the language in Carr, “a”
mitigating circumstance “certainly does not suggest proof beyond a reasonable doubt.” 577 U.S.
at 121. The mere juxtaposition between the explicit reasonable-doubt burden in the first special
issue and the lack of burden in the second special issue is not enough to “[cause] the jury to
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speculate that mitigating circumstances must also be proved beyond a reasonable doubt.” Id.
“The instructions as a whole distinguish clearly between aggravating and mitigating
circumstances,” and “[t]he reality is that jurors do not ‘pars[e] instructions for subtle shades of
meaning in the same way that lawyers might.’” Id. at 121–22. On these instructions, “no juror
would reasonably have speculated that mitigating circumstances must be proved by any particular
standard, let alone beyond a reasonable doubt.”
Id. at 122.
“Jurors would not have
misunderstood these instructions to prevent their consideration of constitutionally relevant
evidence.” Id. Granger does not acknowledge, much less distinguish, Carr, which is fatal to his
claim.
The Fifth Circuit, furthermore, has consistently held “No Supreme Court or Circuit
precedent constitutionally requires that Texas’s mitigation special issue be assigned a burden of
proof.” Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.), cert. denied, 546 U.S. 848 (2005); see
Druery, 647 F.3d at 546–47 (listing cases rejecting argument that failure to instruct jury that State
bears burden of proof on the mitigating special issues is unconstitutional). The Fifth Circuit has
similarly rejected allegations that the jury received “mixed signals” because no burden of proof
is placed on the mitigation special issue. See Oliver v. Quarterman, 254 F. App’x 381, 386–87
(5th Cir. 2007) (noting that the Supreme Court has implicitly upheld Texas’s current scheme);
Scheanette, 482 F.3d at 825–27. Granger’s speculative arguments, based on a theory that has
been rejected by the Supreme Court and the Fifth Circuit, fail to demonstrate that his mitigating
evidence could not be given effect through the special issues. Because his argument is directly
contrary to existing Supreme Court precedent, his Eighth Amendment claim is also barred by
Teague.
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Granger’s tack-on IATC claims are fruitless here because any objections predicated on
either the definition or burden-of-proof claims would not have been successful. He cannot show
that counsel was deficient for failing to object on either basis or that he suffered any prejudice.
See Nixon, 405 F.3d at 328 (because objection would have been fruitless, there can be no deficient
performance under Strickland). The fact that counsel raised other meritless issues does not make
them deficient for failing to raise these meritless issues. (See, e.g., #44 at 178) (arguing counsel
raised similar death-penalty-statute challenges). Granger fails to demonstrate that his counsel were
deficient or that he suffered prejudiced as a result of any deficiency. Hence, Granger is not
entitled to habeas corpus relief on Claims 19 and 20.
S.
Granger Does Not Prove Error or Cumulative Error
Throughout his briefing, Granger repeatedly argues that the cumulative effect of the
allegedly ineffective representation he received, the prosecutorial errors inflicted, and the trial
court errors committed rendered his trial fundamentally unfair. (See #44 at 42–45 (Claim 1), 64,
78–79, 83, 115, 122, 127, 138, 152, and 178). As discussed above, however, Granger has proven
no constitutional errors, so he has nothing to cumulate. See Derden v. McNeel, 978 F.2d 1453,
1458 (5th Cir. 1992) (en banc) (“[A]ny cumulative error theory must refer only to errors
committed in the state trial court.”), cert. denied, 508 U.S. 960 (1993); Mullen v. Blackburn, 808
F.2d 1143, 1147 (5th Cir.1987) (“Twenty times zero equals zero.”).
Granger argues that even if none of the above allegations independently entitles him to
relief, their cumulative prejudicial effect denied him his right to the effective assistance of counsel
at both the guilt/innocence and punishment phases of trial. The Fifth Circuit has made it clear that
cumulative-error analysis applies only in “rare instances” where there is constitutional error to
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cumulate. United States v. Delgado, 672 F.3d 320, 344 (5th Cir.) (en banc), cert. denied, 568
U.S. 978 (2012); Derden, 938 F.2d at 609. “Meritless claims or claims that are not prejudicial
cannot be cumulated, regardless of the total number raised.” Pondexter, 537 F.3d at 525.
As discussed throughout this memorandum opinion, none of the claims raised by Granger
establish that trial counsels’ performance was deficient under the Strickland analysis. Even if
counsel could be deemed deficient in one or more of the allegations, this court has found no
instances where Granger was prejudiced by counsels’ allegedly deficient conduct. Accordingly,
there is no prejudicial effect for this court to cumulate. United States v. Thomas, 724 F.3d 632,
648 (5th Cir. 2013) (“[T]here is no precedent supporting the idea that a series of ‘errors’ that fail
to meet the standard of objectively unreasonable can somehow cumulate to meet the high burden
set forth in Strickland.”), cert. denied, 571 U.S. 1176 (2014); Pondexter, 537 F.3d at 525 (finding
“[m]eritless claims or claims that are not prejudicial cannot be cumulated”); United States v. Hall,
455 F.3d 508, 520 (5th Cir. 2006) (“Our clear precedent indicates that ineffective assistance of
counsel cannot be created from the accumulation of acceptable decisions and actions”), cert.
denied, 549 U.S. 1343 (2007).
Granger’s cumulative-error claim therefore is not substantial, nor does it warrant federal
habeas corpus relief under a de novo standard of review. Granger is not entitled to habeas corpus
relief on his cumulative error claim(s).
VII.
Request for Evidentiary Hearing
Granger, in his amended federal habeas petition (#44 at 21–22), asks that he be afforded
an evidentiary hearing on his claims. Under 28 U.S.C. § 2254(e)(2), the court’s ability to hold
an evidentiary hearing is limited as follows:
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If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
Here, Granger has failed to make the necessary showing under Section 2254(e)(2). An
evidentiary hearing is not warranted in this proceeding. There are no issues of fact that remain
unresolved, and there is no clear and convincing evidence to overcome the presumption of
correctness afforded the state court’s detailed factual findings. Accordingly, Granger’s request
for an evidentiary hearing (#44 at 21–22) is DENIED.
VIII. Conclusion
The court has carefully considered each of Granger’s claims. The court finds that each of
the claims is foreclosed by clear, binding precedent. This court concludes that under such
precedents, Granger failed to make a substantial showing of the denial of a constitutional right.
Granger has not shown that he is entitled to federal habeas corpus relief, and his petition is denied.
IX.
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, 580 U.S. at 115. Instead, under 28
219
U.S.C. § 2253(c)(1), he must first obtain a certificate of appealability (“COA”) from a circuit
justice or judge. Id. Although Granger has not yet filed a notice of appeal, the court may address
whether he would be entitled to a certificate of appealability. See Alexander, 211 F.3d at 898
(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, 537 U.S. at 327. 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, 580 U.S. at 115 (quoting Miller-El, 537 U.S. at 336).
Moreover, “[w]hen the district court denied relief on procedural grounds, the petitioner seeking
a COA must further show that ‘jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.’” Rhoades v. Davis, 852 F.3d 422, 427 (5th Cir. 2017)
(quoting Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012)).
In this case, reasonable jurists could not debate the denial of Granger’s Section 2254
grounds for relief on substantive or procedural grounds or find that the issues presented are
220
adequate to deserve encouragement to proceed further. Accordingly, the court finds that Granger
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 the request for an evidentiary hearing is DENIED. It is further
ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled upon are DENIED.
SIGNED at Beaumont, Texas, this 24th day of February, 2023.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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