Wardlow v. Director

Filing 37

MEMORANDUM AND ORDER re 1 Petition for Writ of Habeas Corpus, filed by Billy Joe Wardlow. ORDERED that the petition for a writ of habeas corpus is DENIED, and the case is DISMISSED WITH PREJUDICE. It is further ORDERED that a certificate of appealability is DENIED. It is finally ORDERED that all motions not previously ruled on are DENIED. Signed by Judge Marcia A. Crone on 8/21/2017. (kls, )

UNITED STATES DISTRICT COURT

BILLY JOE WARDLOW

EASTERN DISTRICT OF TEXAS

§
§
§
§
§

versus
DIRECTOR, TDCJ-CID

CIVIL ACTION NO. 4:04-CV-408

MEMORANDUM AND ORDER
Petitioner Billy Joe Wardlow (“Wardlow”), an inmate confined on death row in the Texas
prison system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Wardlow challenges his capital murder conviction and death sentence
imposed by the 76th District Court of Titus County, Texas, in Texas v. Wardlow, Cause No.
12,764. For the reasons set forth below, the court finds that the petition is procedurally barred
and otherwise without merit and, as a result, will be denied.
I.

PROCEDURAL HISTORY
Wardlow was convicted and sentenced to death for the murder of 82-year-old Carl Cole

(“Cole”) during the course of a robbery or attempted robbery. See 2 Tr 147-55, 157-64, 165-68;1
see also TEX. PENAL CODE § 19.03(a)(2).
The offense took place on June 14, 1993, in Morris County, Texas. On June 24, 1993,
the trial court appointed Vernard Solomon (“Solomon”) of Marshall, Texas, to represent
Wardlow. One year later, the trial court granted Solomon’s motion to withdraw as defense

1

“Tr” refers to the transcript, which contains the pleadings, orders, and other documents filed with the clerk
during the course of Wardlow’s state trial, preceded by volume number and followed by page numbers. “SF”
refers to the statement of facts, the record of transcribed trial proceedings, preceeded by volume number and
followed by page numbers. “SX” refers to the numbered trial exhibits offered by the State at trial; “DX”
refers to the numbered trial exhibits offered by the defense at trial. “SHTr” refers to the transcript of
pleadings, orders, and other documents filed with the clerk during Wardlow’s state habeas proceedings,
followed by page numbers.

counsel. On June 24, 1995, the trial court appointed Bird Old, III (“Old”), to represent Wardlow.
Lance Hinson was appointed as co-counsel. Both attorneys practiced in Mt. Pleasant, Texas.
A change of venue was granted to Titus County, and Wardlow was tried by a jury in the
76th Judicial District, Titus County, Texas. Jury selection commenced on October 6, 1994, and
was completed on January 10, 1995. The guilt/innocence phase of the trial began on January 31,
1995. The jury returned a guilty verdict on February 8, 1995.
After hearing evidence during the penalty phase of the trial, the jury returned an
affirmative answer to the special issue concerning future dangerousness and a negative answer to
the special issue concerning mitigating evidence on February 11, 1995. Based on the answers to
the special issues set forth in the Texas Code of Criminal Procedure, Article 37.071, the trial court
sentenced Wardlow to death.
Wardlow’s conviction and sentence were automatically appealed to the Texas Court of
Criminal Appeals (the “CCA” or the “Court of Criminal Appeals”). Wardlow was represented
on direct appeal by Douglas Parks of Dallas, Texas. The Court of Appeals affirmed Wardlow’s
conviction and death sentence in an unpublished opinion on April 2, 1997. Wardlow v. State, No.
72,102 (Tex. Crim. App. Apr. 2, 1997). Wardlow did not file a petition for certiorari review in
the United States Supreme Court.
On July 21, 1997, the trial court, Judge Gary Stephens presiding, conducted a hearing
pursuant to Article 11.071 § 2(a-c) of the Texas Code of Criminal Procedure to determine whether
Wardlow desired the appointment of counsel to assist him in filing an application for a writ of
habeas corpus. See Director’s Appendix 1. Prior to this hearing, Wardlow had already contacted

2

the CCA “asking [the court] to refrain from appointing him counsel for habeas and to immediately
set an execution date for him.” Wardlow’s Exhibit 4 at 2.
Wardlow appeared at this hearing in person and through counsel, James Clark, and
indicated that he did not wish to have counsel appointed and did not desire to have any further
appeals filed on his behalf.

Id.

Wardlow—whom Judge Stephens explicitly found to be

competent—voluntarily and intelligently waived his right to appointed counsel and his right to
proceed pro se in open court. Id. Judge Stephens memorialized his findings in writing on
September 2, 1997, and thereafter forwarded them to the Court of Criminal Appeals. Id.
On September 25, 1997—more than two months after appearing in open court and waiving
his right to counsel and to pursue further appeals, Wardlow “entered into a legal representation
agreement with attorney Mandy Welch (“Welch”),” wherein Welch agreed to notify the
appropriate courts that Wardlow did, in fact, wish to pursue his post-conviction remedies. See
Wardlow’s Exhibit 4 at 2. On January 5, 1998, the trial court entered supplemental findings of
fact confirming Wardlow’s wish to pursue habeas relief. Director’s Appendix 2. On that basis,
the Court of Criminal Appeals, on January 21, 1998, appointed Welch to represent Wardlow and
ordered that his state habeas application be filed within 180 days. Director’s Appendix 3.
On July 2, 1998, eighteen days before Wardlow’s filing deadline, the Court of Criminal
Appeals received another letter from Wardlow again expressing a desire “to waive and forego all
further appeals.” Wardlow’s Exhibit 1. Wardlow has never rescinded this waiver.
The Court of Criminal Appeals granted Wardlow’s request to abandon further appeals in
an order dated July 14, 1998. Wardlow’s Exhibit 2. Despite that order, however, Welch filed
a state habeas application in the trial court on July 20, 1998, the 180th day after her appointment.

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SHTR 1-67. The application raised essentially the same seven claims for relief raised in the
instant petition.
On March 2, 2004, Judge Stephens issued his findings of fact and conclusions of law and
forwarded them to the Court of Criminal Appeals along with his recommendation that the relief
requested be denied. See Supplemental SHTr 3-21. In a written order issued on September 15,
2004, the CCA dismissed Wardlow’s application on procedural grounds, declining to review the
merits of his claims. Specifically, the court dismissed the application based on its July 14, 1998,
order granting Wardlow’s request to abandon further appeals. Ex parte Wardlow, Writ No.
58,548-01. The court also denied Wardlow’s motion for rehearing on October 20, 2004.
Wardlow, represented by attorney Richard Burr, then filed a petition for a writ of habeas corpus
with this court on November 23, 2004.
Wardlow presents the following grounds for relief:
1.

Wardlow’s confessional letter was obtained in violation of his rights granted by the Fifth
and Sixth Amendments to the United States Constitution.

2.

Wardlow was denied the effective assistance of counsel on direct appeal.

3.

The State substantially interfered with co-defendant Tonya Fulfer’s (“Fulfer”) choice to
testify on Wardlow’s behalf in violation of Wardlow’s rights to due process and a fair trial
under the Sixth, Eighth, and Fourteenth Amendments.

4.

The State failed to disclose to the defense exculpatory evidence regarding Fulfer’s version
of the events, in violation of Wardlow’s due process rights.

5.

Wardlow was denied effective assistance of counsel at trial as guaranteed by the Sixth
Amendment.

6.

The State knowingly presented testimony creating a false impression before the jury in
violation of Wardlow’s due process rights.

7.

Wardlow’s trial counsel rendered constitutionally ineffective assistance by failing to rebut
the allegedly false testimony presented by the State.
4

The Director filed an answer (#9) on May 16, 2005. Wardlow filed a reply brief (#12) on
September 15, 2005. On October 18, 2016, Wardlow filed a supplemental brief (#25). On
February 10, 2017, the Director filed a response to Wardlow’s supplemental brief (#32).
Wardlow filed a reply brief to the Director’s response on March 20, 2017.
II.

FACTUAL BACKGROUND
In the late afternoon of June 14, 1993, Charles Cole (“Charles”) arrived at the home of his

82-year-old father, Cole, in the rural community of Cason, Texas. 33 SF 90. He observed that
his father’s 1993 Chevrolet four-wheel-drive pickup truck was missing, and he noticed blood on
the steps in front of the door. Id. at 93. Fearing that his father had injured himself and had gone
for help, Charles attempted to call nearby hospitals. Id. at 93-95. After discovering that the
phone had been disconnected, Charles became alarmed and contacted Morris County Sheriff Ricky
Blackburn (“Sheriff Blackburn”) from a neighbor’s house. Id. at 95. Upon returning to his
father’s house, Charles found his father’s blue jeans, shirt, and boots laid out on a rocking chair
in his bedroom. Id. at 96. The house reportedly appeared undisturbed, but Cole, his billfold, and
the keys to his truck were missing. Id. at 97.
Sheriff Blackburn arrived at Cole’s residence shortly thereafter. 33 SF 112-13. He
discovered a broken pair of glasses, a partial set of dentures, and a small amount of blood in the
carport near the door. Id. at 113. Authorities also discovered that Cole’s phone lines had been
disconnected from outside the house. 34 SF 177-78. At that point, the sheriff initiated a full-scale
investigation into Cole’s whereabouts. 33 SF 130.
Law enforcement officers combed the surrounding area searching for any sign of Cole or
his pickup, the registration number of which had been forwarded to the National Crime

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Information Center. Id. at 131; 34 SF 181. At about midnight, Morris County, Texas, Deputy
Sheriff Bill Barnard (“Deputy Barnard”) discovered several items that appeared to have been
dumped from Cole’s truck—his checkbook, some farm tools, and an adding machine—at a
turnaround on a small backroad in nearby Titus County. 34 SF 182, 186. There was still no sign
of Cole or his pickup.
In the pre-dawn hours of June 15, after an all-night search of the surrounding area, game
warden Billy Dodd (“Game Warden Dodd”) and state trooper David McFarland (“Trooper
McFarland”) accompanied Charles back to his father’s house where the three conducted a
thorough, room-by-room search. 33 SF 103; 34 SF 216-17. They scoured Cole’s bedroom in the
darkness, looking behind doors and under the bed with a flashlight. 33 SF 103; 34 SF 218.
Charles opened his father’s closet, and Game Warden Dodd shone the flashlight inside. 33 SF
103; 34 SF 219. There, in the closet, stood the body of Cole, a bullet hole between his eyes. 34
SF 219.
Game Warden Dodd immediately closed the closet door and ushered Charles out of the
room. 33 SF 104; 34 SF 219. He then returned to check the body. 34 SF 219. Cole’s face was
swollen, and there was a prominent wound between his eyes at the bridge of his nose. Id. at 221.
He had on a pajama top and undershorts and was wrapped in a bedspread. Id. Game Warden
Dodd could not detect a pulse, and he noted that Cole’s arm was cold and stiff. Id. at 220. The
body was removed from the closet and transported to Dallas County for an autopsy. Id. at 226;
33 SF 139.
Medical examiner Dr. Jeffrey J. Barnard (“Dr. Barnard”) determined that Cole died as the
result of a single gunshot wound to the head. 33 SF 146. The bullet, which Dr. Barnard

6

recovered from Cole’s body, entered between his eyes, directly above his nose, traveled through
the nasal bone, the mouth, the spinal cord, and finally lodged in the lower portion of the cervical
vertebra. Id. at 145. There were also abrasions and contusions on Cole’s back, which Dr.
Barnard testified were consistent with drag marks, and a laceration on the back of Cole’s head,
which reportedly could have been caused by either Cole falling backward or being struck from
behind. Id. at 152. Dr. Barnard testified that the absence of any identifiable residue on the
entrance wound indicated that the gun had been fired from a distance of three feet or more. Id.
at 146. He further opined that the path of the bullet indicated that it had traveled downward;
nonetheless, he could not determine whether Cole had been standing, kneeling, sitting, or lying
when he was shot. Id. at 149-50, 155.
Later on June 15, Lynda Wardlow (“Lynda”), Wardlow’s mother, reported to Sheriff
Blackburn that the previous morning she had noticed that a Llama .45 semi-automatic pistol was
missing from her home. 34 SF 355-56. She provided the gun’s serial number and some
ammunition she had used in the gun. Id. She also stated that Wardlow and his girlfriend, Fulfer,
had been staying at her house for a few days; nonetheless, Lynda claimed she had not seen the
couple since late on the evening of June 13. Id. at 362. Will Emery (“Emery”), Wardlow’s
neighbor, told authorities that on the evening of June 13, Wardlow and Fulfer visited his home,
at which time Wardlow showed Emery a blue steel .45 pistol with a wooden handle. Id. at 24752.
Dorothy Smith (“Smith”), a live-in caregiver for Cole’s 86-year-old sister, Waldine
Henderson (“Henderson”), testified that she had seen a young couple matching the description of
Wardlow and Fulfer near Cole’s house at about 6:30 a.m. on June 14. 34 SF 264-66. Smith

7

watched the couple from a window as they stood talking directly in front of Henderson’s house.
Id. at 266, 294. Smith saw them walk toward Cole’s house, which was down the street from
Henderson’s house, and stop at a van parked in the driveway of Cole’s next-door neighbor. Id.
at 267, 295-99. As the couple stood looking inside the back of the van, Smith saw a gun with a
brown handle in the man’s back pocket. Id. at 267-68, 300.
The man then walked under Cole’s carport out of Smith’s sight, and the woman followed.
Id. at 320. A minute or two later, Smith heard a gunshot and saw the woman run out from under
the carport, stop quickly, and then bend over. Id. at 324, 326. Smith thought the man had shot
a snake behind Cole’s house, and she returned to her housework unconcerned. Id. at 326, 332.
Approximately five minutes later, Smith returned to the window and observed Cole’s pickup truck
back out of the carport and drive away at a slow rate of speed. Id. at 326-27. She assumed that
Cole was driving, but she could not see through the tinted windows of the pickup. Id. at 328-29,
340.
Also on June 15, Jerry Wagner, part owner of a used car dealership in Norfolk, Nebraska,
finalized a deal with a young couple fitting the description of Wardlow and Fulfer. 35 SF 449-50.
The couple drove off the lot in a black 1987 Ford Mustang convertible with $8,000 cash. The car
and the cash were received in exchange for what was later determined to be Cole’s 1993 Chevrolet
pickup. Id. at 449, 451, 454.
On the evening of June 16, 1993, a patrolman in Madison, South Dakota, apprehended
Wardlow and Fulfer and took them into custody after receiving a teletype advising that a Texas
warrant had issued for their arrest on charges of capital murder. 35 SF 471-72. A Llama .45
semi-automatic pistol was found under the passenger seat of the car and seized pursuant to an

8

inventory search. Id. at 473, 481. Firearms examiner Raymond Cooper confirmed that the bullet
recovered from Cole’s body was, in fact, fired from that gun, which was admitted into evidence
at trial. 34 SF 377; SX 23. Sheriff Blackburn, Game Warden Dodd, and Trooper McFarland
transported Wardlow to Texas on June 22-23, 1993, and Wardlow was immediately incarcerated
in the Morris County jail. 35 SF 488-89.
On February 28, 1994, Wardlow wrote Sheriff Blackburn a letter, delivered through the
jail’s in-house mail system, wherein he confessed to the robbery and shooting of Cole. It read in
pertinent part:
Ricky,
I told you I would give you a statement, so here is what happened on June 14,
1993. The night before I was at the neighbor’s house me and my girlfriend, and
we were watching a movie. I already had in my possession the Llama .45
Automatic that was used for the shooting. I showed the gun to my neighbor
William Emery, who examined it and complemented me on it. At about 11:30
p.m. on 06/13/93 I left with my girlfriend to go and check out the place and see if
anyone was up. There were no lights on and not a sound to be heard. I reached
the porch and undid the phone line, so that no one could call the police. I knocked
on the door and there was no answer. I then decided to go back home after two
other tries later that day and early the next morning. The intention was to get him
to let me use the phone and once inside, I would rob him. I had stolen trucks
before, but this time I had no money. When we got home I set the alarm for 5:00
a.m. so I could go and get the job done. My girlfriend followed me to my
neighbor’s house and there she stayed until I came back with the truck. It was
actually about 6:05 a.m. when I left the house. I got there and still no one was up.
I knocked on the door and there was no answer. I went up the road and waited at
the house that had recently burned down and when his light came on I went back.
I knocked on the door, and he answered. I told him my car was broke down, and
wanted to know if I could use the phone so I could call my friend. He reached
inside the door and picked up a cordless phone and handed it to me. It didn’t work
because the lines were disconnected. He set the phone down on the table and
started to close the door. I then caught the door and ask if he had another phone
and that that phone’s batteries might be dead. He said no and persisted to close the
door and then is when I drew out the .45 from in my pants. And as I brought it
out, I corked [sic] a shell into the chamber. I raised it up and told him to walk
inside the house. He ran at the door for me and screamed when he caught my arm.
9

Being younger and stronger, I pushed him off and shot him right between the eyes.
Just because he pissed me off. He was shot like an executioner would have done
it. He fell to the ground lifeless and didn’t even wiggle a hair. I proceeded inside
found his jeans and removed all money and keys from it since I didn’t know which
keys were to the truck. I then thought of putting the body in the truck and hauling
it off in the woods, but decided I didn’t have any time to waste, since a .45 shot
that early in the morning was abound to draw some attention. I went to the
bedroom and grabbed the blanket, went outside and wrapped up the body. I picked
up the body and went back into the bedroom. There I put him in the closet and
shut the door thinking it would be some time before he would be found. I
proceeded out of the house not even thinking of fingerprints. I got the truck which
already had keys in it and left. I headed out toward 144 S. then onto 11. There I
went toward Pittsburg and turned off on the road where the corner is right before
you get to the bridge SE 35A. At the corner that goes to the creek I went down the
trail in the truck and unloaded anything that wasn’t paperwork for the truck. I then
left going out the other way ending up on SE 35 then onto 144 N. I then turned up
on the back roads to my neighbors house which is on the blacktop by my house.
Here I parked and got my girlfriend and we walked over to the house and got our
things which were already packed and in the back of my pickup. Carried them to
the truck and left by way of 144 N. to 49 and then to Mt. Pleasant. I gassed up
with the 47 dollars I found in the wallet which I kept. Then I stopped at the store
right by the interstate and got a Coke. I then thoroughly searched the wallet and
found $100 bill and then threw it in the dumpster. We then proceeded to an
destination along the way I told her the above things just as they happened and told
her she didn’t have to go if she didn’t want to, but I assured her I wouldn’t be
caught.
The letter was admitted as evidence at Wardlow’s trial and was read into the record in the
jury’s presence. 35 SF 524-27; SX 73.
Wardlow testified at the guilt-innocence phase of trial regarding the circumstances under
which he wrote the letter confessing to the crime. 37 SF 636-43. He also testified regarding the
facts of the offense, and his trial testimony was consistent with the letter. Id. at 644-57. Wardlow
told the jury, however, that contrary to the letter, Fulfer accompanied him to Cole’s home. Id.
at 643. He also stated that he did not intend to kill Cole when he went to his home; rather, he
intended only to rob Cole and take his truck. Id. at 644. When Wardlow brought out the gun and
told Cole to go back into the house, Cole lunged at Wardlow and grabbed his arm and the gun,
10

attempting to push Wardlow away. Id. at 648-51. Wardlow testified that Cole was stronger than
expected and, as a result, Wardlow was caught off balance and began to fall backwards. Id. at
648, 652. Wardlow claimed he shot the gun without aiming, hoping it would get Cole off of him.
Id. at 648, 651, 653, 664. Physical evidence, however, confirmed that Cole was shot between the
eyes. Id. at 648. The trial testimony revealed that Cole, while strong and active for an 82-yearold man, stood five feet, seven inches tall and weighed approximately 145 pounds. 33 SF 106-07.
Wardlow stands six feet, four inches tall. 34 SF 311; 35 SF 450.
Wardlow told the jury that he had been planning to rob Cole for less than a week, but that
he had been planning to travel to Montana for some time. He and Fulfer were on their way to
Montana when they were apprehended in South Dakota. 37 SF 656-57, 670. He admitted that
he and Fulfer had discussed the danger of leaving a witness to their crime. This discussion
apparently took place when the couple discovered, before knocking on Cole’s door, that there was
a set of keys to Cole’s pickup on the dashboard. 37 SF 646. Thus, according to Wardlow, they
realized they could either take the pickup without having to confront Cole and risk him informing
the authorities as soon as he awoke, or they could confront Cole, rob him, and “incapacitate” him
by either kidnapping and dumping him in some remote area or leaving him tied up so he could not
contact the authorities. They ultimately decided on the latter course of action. Id. at 676-77.
When asked by the prosecutor why, if he intended to tie up Cole, he failed to bring any
rope with him, Wardlow responded that he planned to use a telephone cord or anything else he
might find in the victim’s home. 37 SF 678-80. Significantly, evidence was presented at trial
indicating that Cole knew Wardlow (also a resident of Cason) and would likely have been able to
identify him as the perpetrator. 33 SF 102, 108; 34 SF 363. Wardlow, no doubt, was fully aware

11

of this fact. 37 SF 689. Wardlow also acknowledged that, before their arrest, he and Fulfer
bought several personal items with the cash they received from the sale of Cole’s pickup. Id. at
683-88.
During the trial’s punishment phase, the State presented Deputy Barnard to testify. He
stated that, while on patrol on January 11, 1993, he observed Wardlow driving at a high rate of
speed and attempted to pull him over. 39 SF 19. Wardlow, however, refused to pull over, and
the deputy was forced to pursue him. Id. at 20. Deputy Barnard followed Wardlow for several
miles with his lights on, but Wardlow continued traveling at dangerous speeds in excess of 100
miles per hour on the highway and 70 miles per hour on a narrow county road. Id. at 20-21, 2728. Eventually, Wardlow pulled over, and Deputy Barnard arrested him for fleeing. Id. at 28-30.
John Schultz, a salesman at a used car lot in Fort Worth, testified that on June 5, 1993,
Wardlow, accompanied by a woman, took a 1989 Chevrolet pickup for a test drive and never
brought it back. 39 SF 31-34.
Morris County jailer J. P. Cobb testified that on February 20, 1994, while Wardlow was
incarcerated in the Morris County jail awaiting trial, jailers found a two-foot metal bar with a sixto eight-inch rod extending from the middle behind Wardlow’s bunk in the cell he shared with
three other inmates. 39 SF 141-42. One of Wardlow’s former cellmates testified that Wardlow
planned to use the metal bar to hit one of the jailers in the head, take his keys, and escape. Id. at
145-47. The State also offered into evidence several letters Wardlow wrote to Sheriff Blackburn
and jailer Patsy Martin (“Martin”) while he was incarcerated in the Morris County jail. In these
letters, Wardlow threatened to harm other inmates, jailers, and the sheriff. 39 SF 173-76; SX 8286.

12

Deputy Sheriff Warren Minor testified that, while being transported from the Titus County
jail to the courtroom on the morning of the second day of his trial, Wardlow stated the jail was
using trustees as guards and “if they don’t stop using them I am going to double my time on one
of them.” 39 SF 177-78.
Harry Washington (“Washington”), an undercover narcotics agent, testified that on
September 9, 1992, he and an informant approached Wardlow to buy some marijuana. 40 SF 20809. Wardlow, who was seated in his pickup, told Washington that he did not mess with drugs.
Id. at 209. Washington then observed a .45 handgun lying on the seat next to Wardlow. Id. at
210. Washington asked Wardlow why he had a gun, and Wardlow laid his hand on top of the gun
and said to Washington, “I’ll shoot you with it.” Id.
Royce Smithey (“Smithey”), an investigator with the unit that prosecutes felony offenses
occurring within the Texas prison system, testified about the different levels of security within the
prison system. 40 SF 215-16, 220. He advised that although capital murder defendants who
receive a death sentence are segregated from the general population and are strictly monitored and
have limited access to prison employees, those who receive a life sentence are released into the
general prison population and are initially classified no differently than any other felony offender.
Id. at 221-22, 225-27. Smithey also testified that violent crimes, including those that involve
prison employees, occur fairly often within the Texas prison system, and that the incidence of such
crime is much greater in the general population than on death row. Id. at 222-27.
Wardlow’s defense team also presented evidence.

Amy Billingslea (“Billingslea”),

Wardlow’s former church youth minister, testified that she had known him since he was a baby
and had worked with him when he became involved in the church youth group as a teenager. 40

13

SF 260-61.

She described Wardlow as quiet, well mannered, hard working, bright, and

respectful. Id. at 262-63. According to Billingslea, Wardlow played on the church basketball
team and participated in church fundraisers. Id. at 261. Wardlow attended church regularly
during his early teens; however, he reportedly ceased attending church several years before the
instant offense occurred. Id. at 262, 265.
Glendon Gillean (“Gillean”), a librarian at Daingerfield High School, testified that as a
student, Wardlow often came to the library before school and during lunch to work on educational
computer programs. 40 SF 267-69. She said he also volunteered to help pack and move books
when the library was relocated. Id. Wardlow regularly borrowed books on topics such as
mechanics, technology, and aeronautics. Id. at 269. According to Gillean, Wardlow never
created a disciplinary problem. Id. at 270. Assistant principal Gerald Singleton testified that
Wardlow attended school regularly and had never had any disciplinary complaints lodged against
him. Id. at 271-72. Nonetheless, Wardlow withdrew from school before completing his junior
year of high school. Id. at 273.
Further details adduced at trial will be discussed below, as pertinent.
III.

LEGAL STANDARD
Review of Wardlow’s petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. See Lindh v. Murphy,
521 U.S. 320, 327 (1997).

14

A.

General Standards of Review

Under AEDPA, a petitioner who is in custody “pursuant to the judgment of a State court”
is not entitled to federal habeas corpus relief with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim:
(1)

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

(2)

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

28 U.S.C. § 2254(d). “By its terms § 2254 bars relitigation of any claim ‘adjudicated on the
merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, 562 U.S. 86, 98 (2011). AEDPA imposes a “highly deferential standard for evaluating
state-court rulings, and demands that state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (citation and internal quotation marks omitted). With
respect to the first provision, a “state court decision is ‘contrary to’ clearly established federal law
if (1) the state court ‘applies a rule that contradicts the governing law’ announced in Supreme
Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set
of materially indistinguishable facts.” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006)
(en banc); see Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (internal quotation marks omitted).
“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). As such,
“evidence later introduced in federal court is irrelevant.” Id. at 184. “The same rule necessarily
applies to a federal court’s review of purely factual determinations under § 2254(d)(2), as all nine
Justices acknowledged.” Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011) (footnotes omitted),
15

cert. denied, 568 U.S. 1189 (2013). With respect to § 2254(d)(2), a Texas court’s factual findings
are presumed to be sound unless a petitioner rebuts the “presumption of correctness by clear and
convincing evidence.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005).
The “standard is demanding but not insatiable; . . . [d]eference does not by definition
preclude relief.” Id. (citation and internal quotation marks omitted). Most recently, the Supreme
Court stated that a “state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016); see Richter, 562 U.S. at 101. The
Supreme Court has explained that the provisions of AEDPA “modified a federal habeas court’s
role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to
ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone,
535 U.S. 685, 693 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). Federal
habeas corpus relief is not available simply because a state court decision may have been incorrect;
instead, a petitioner must show that a state court decision was unreasonable. Cone, 535 U.S. at
694.
A federal habeas court’s inquiry into unreasonableness should be objective rather than
subjective, and a court should not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly established federal law
erroneously or incorrectly. Williams, 529 U.S. at 409-11 (Stevens, J., concurring); Tucker v.
Johnson, 242 F.3d 617, 620 (5th Cir. 2001). Rather, federal habeas relief is only merited where
the state court decision is both incorrect and objectively unreasonable “[w]hether or not [this
Court] would reach the same conclusion . . . .” Woodford v. Visciotti, 537 U.S. 19, 27 (2002);

16

Williams, 529 U.S. at 411; Martin v. Cain, 246 F.3d 471, 476 (5th Cir.), cert. denied, 885
(2001).

Moreover, it is the state court’s “ultimate decision” that is to be tested for

unreasonableness, “not every jot of its reasoning.” Santellan v. Cockrell, 271 F.3d 190, 193 (5th
Cir. 2001), cert. denied, 535 U.S. 982 (2002); see Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.
2002) (en banc) (holding that a federal court’s “focus on the ‘unreasonable application’ test under
section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on
whether the state court considered and discussed every angle of the evidence”), cert. denied, 537
U.S. 1104 (2003).
Additionally, independent of the operation of § 2254(d) relating to state court merits
adjudications, § 2254(e) provides that “a determination of a factual issue made by a State court
shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the
presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Jackson v. Johnson, 150
F.3d 520, 524 (5th Cir. 1998), cert. denied, 526 U.S. 1041 (1999). This presumption applies to
state court factfindings regardless whether those findings are made by a trial court or an appellate
court. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981) (interpreting pre-AEDPA version of
statute); see also Craker v. Procunier, 756 F.2d 1212, 1213-14 (5th Cir. 1985) (holding that
factfindings of state habeas trial court favorable to petitioner were entitled to statutory presumption
of correctness despite fact that CCA ultimately denied relief).
Finally, pre-AEDPA precedent forecloses habeas relief if a claim (1) is procedurally barred
as a consequence of a failure to comply with state procedural rules, Coleman v. Thompson, 501
U.S. 722 (1991); (2) seeks retroactive application of a new rule of law to a conviction that was
final before the rule was announced, Teague v. Lane, 489 U.S. 288 (1989); or (3) asserts trial

17

error that, although of constitutional magnitude, did not have a “substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
B.

Dismissal of Wardlow’s State Habeas Application

“The general rule is that the federal habeas court will not consider a claim that the last state
court rejected on the basis of an adequate and independent state procedural ground.” Busby v.
Dretke, 359 F.3d 708, 718 (5th Cir.), cert. denied, 541 U.S. 1087 (2004); see Coleman, 501 U.S.
at 729-32. The procedural default doctrine “has its roots in the general principle that federal
courts will not disturb state court judgments based on adequate and independent state law
procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). “[A] federal court will not
entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a
showing of cause and prejudice to excuse the default.” Id. at 388.
On July 21, 1997, Wardlow expressed his desire to forgo state habeas proceedings. After
a hearing was held, the trial court found that Wardlow was “mentally competent and [had] a
rational understanding as well as factual understanding of the proceedings” and that his waiver of
both the right to counsel and the right to proceed pro se was voluntary and intelligent. DE 2 at
2. When Wardlow had a change of heart, the trial court recommended that counsel be appointed
for the purposes of pursuing state habeas relief. Id. at 4.
On January 21, 1998, the Court of Criminal Appeals “upon due consideration,” appointed
counsel and ordered that the writ application be filed 180 days later. Id. at 6. Wardlow, however,
changed his mind again and expressed his desire to waive state habeas proceedings directly to the

18

Court of Criminal Appeals, DE 1-2, which then issued an order granting Wardlow’s request, Ex
parte Wardlow, No. 72,102 (July 14, 1998); see DE 1-3.
Despite this order, appointed counsel filed a writ application on the 180th day. SHCR at
1. The trial court issued findings with respect to each of the claims raised and forwarded
everything to the Court of Criminal Appeals. The Court of Criminal Appeals, citing its previous
order, dismissed the writ. Ex parte Wardlow, No. 58,548-01 (Tex. Crim. App. Sept. 15, 2004);
see DE 1-5. Thus, Wardlow’s claims are procedurally defaulted because they were not considered
by the state’s highest court. “A federal habeas court will not review a claim rejected by a state
court ‘if the decision of [the state] court rests on a state law ground that is independent of the
federal question and adequate to support the judgment.’” Beard v. Kindler, 558 U.S. 53, 55
(2009) (quoting Coleman, 501 U.S. at 729). Federal review is precluded “whether the state law
ground is substantive or procedural.” Coleman, 501 U.S. at 729. When an inmate fails to raise
a claim in state court properly, he “has deprived the state courts of an opportunity to address those
claims in the first instance.” Id. at 732. Accordingly, precluding review of claims decided on
state grounds “ensures that the States’ interest in correcting their own mistakes is respected in all
federal cases.” Id.
“A violation of ‘firmly established and regularly’ followed state rules will be adequate to
foreclose review of a federal claim.” Lee v. Kemna, 534 U.S. 362, 376 (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

19

in some cases but not others.” Beard, 558 U.S. at 60-61. Situations where a state-law ground
is found inadequate are but a “small category of cases.” Kemna, 534 U.S. at 381.
Wardlow asserts that the dismissal of his application was based on no existing “rule.” DE
24 at 5-10. As such, he argues, it is not subject to the usual considerations of procedural default.
The court disagrees. Wardlow validly waived his state habeas proceedings, first, after a hearing
in the trial court and, second, via a letter sent directly to the Court of Criminal Appeals. The
Court of Criminal Appeals was entitled to accept Wardlow’s waivers. Nothing in the record
establishes that Wardlow was not competent at the time he wrote the letter, and he points to no
new evidence suggesting otherwise. Moreover, Wardlow has never rescinded his waiver. The
CCA’s dismissal of Wardlow’s state habeas application, therefore, operates as a valid procedural
bar to consideration of his claims.
IV.

28 U.S.C. § 2254(E)(1)’S PRESUMPTION OF CORRECTNESS
Although the Court of Criminal Appeals dismissed Wardlow’s state habeas application

based on his waiver, he is still obligated to prove by clear and convincing evidence that the trial
court’s factual findings regarding his claims are incorrect. See Sumner, 449 U.S. at 546 (noting
that § 2254(d) “makes no distinction between the factual determinations of a state trial court and
those of a state appellate court”); see also Craker, 756 F.2d at 1213-14 (holding that fact-findings
of state habeas trial court favorable to petitioner were entitled to statutory presumption of
correctness despite the fact that the CCA ultimately denied relief).
Indeed, as the United States Court of Appeals for the Fifth Circuit noted in Reed v.
Stephens:
In Texas, “[o]n postconviction review of habeas corpus applications, the convicting
court is the ‘original factfinder,’ and [the CCA] is the ultimate factfinder.” Ex
20

parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim. App. 2012). Although the CCA
will “generally defer to and accept the convicting court’s findings of fact and
conclusions of law,” the CCA may exercise its authority “to make contrary or
alternative findings and conclusions” when its “independent review of the record
reveals that the trial judge’s findings and conclusions are not supported by the
record.” Id. (internal quotation marks and citations omitted); see also Ex parte
Flores, 387 S.W.3d 626, 634-35 (Tex. Crim. App. 2012) (CCA acts as “the
ultimate fact finder” when the lower court’s findings “do not resolve the necessary
factual issues”).
739 F.3d 753, 765 n.3 (5th Cir.), cert. denied, 135 S. Ct. 435 (2014).
Here, there is no indication that the Court of Criminal Appeals disagreed with the trial
court’s findings on Wardlow’s claims; rather, the court dismissed his application because it had
previously accepted his wavier of state habeas proceedings. Nothing about the CCA’s actions
renders the trial court’s findings invalid.
AEDPA’s presumption of correctness is independent of the requirement that the state
court’s rejection of a petitioner’s constitutional claims be examined for reasonableness.
Consequently, Wardlow must overcome the presumption of correctness afforded the state habeas
court’s findings. Wardlow has not done so.
V.

WARDLOW’S WRITTEN CONFESSION (CLAIM I)
In his first claim, Wardlow argues that the State obtained his confession in violation of his

rights under the Fifth, Sixth, and Fourteenth Amendments. He contends that the admission of his
February 28, 1994, letter to Sheriff Blackburn, wherein he confessed to the armed robbery and
murder of Cole, violated the Fifth and Sixth Amendments. See Wardlow’s Petition at 21.
While incarcerated and awaiting trial, Wardlow sent Sheriff Blackburn two letters detailing
his involvement in Cole’s murder. Defense counsel objected to the introduction of the letters, and
the trial court held a pretrial hearing on Wardlow’s motion to suppress the confessions. The trial

21

court made findings of fact and conclusions of law which allowed for the introduction of the
letters. On direct appeal, the CCA held that the trial court properly admitted the letters into
evidence. See Wardlow v. Texas, No. 72,102 at 12 (Tex. Crim. App. Apr. 2, 1997).
Federal habeas relief is not available to Wardlow on either of the legal bases he presents.
The Fifth Amendment claim was adjudicated on the merits by the CCA on direct appeal. That
adjudication is entitled to deference under § 2254(d). The Sixth Amendment claim is procedurally
defaulted based on the state court’s application of an independent and adequate state procedural
rule; alternatively, the claim is meritless. The inquiry for this court is whether the state court’s
decision was contrary to, or an unreasonable application of, clearly established federal law, as
determined by the Supreme Court. See 28 U.S.C. § 2254(d).
The facts surrounding the events leading up to the writing of the letters are largely
undisputed. On June 16, 1993, Wardlow was arrested by police officers in Madison, South
Dakota, based on a teletype received from authorities in Texas, at which time the officers in South
Dakota read Wardlow his Miranda warnings. 10 SF 71. He was incarcerated until the proper
authorities were notified. Id.
Sheriff Blackburn, Game Warden Dodd, and Trooper McFarland arrived in Madison,
South Dakota, on June 22, 1993, for the purpose of transporting Wardlow back to Texas. 9 SF
10, 63. The sheriff read Wardlow his Miranda warnings, and Wardlow exercised his right to
remain silent and requested an attorney. 9 SF 10-11, 63; 10 SF 72. Wardlow was not questioned
thereafter regarding the circumstances of the instant offense. 9 SF 11. On June 24, he was
arraigned before Judge William Porter (“Judge Porter”) who, on the same day, appointed Solomon

22

as defense counsel. Several days later, Solomon sent a letter to Sheriff Blackburn directing the
sheriff not to speak with Wardlow outside his (Solomon’s) presence.
From June to September 1993, Wardlow attempted unsuccessfully to communicate with
Solomon. Wardlow’s mother also attempted to contact Solomon but was unable to reach him. In
the fall of 1993, Wardlow requested several times to meet with the prison minister and asked to
be moved to general population so that he could help his “brothers in Christ to strengthen as [he
had].” In December 1993, Wardlow wrote several letters to Sheriff Blackburn expressing his
dissatisfaction with Solomon and asking for help in obtaining another attorney. He also wrote a
letter to Judge Billy Moye requesting the appointment of new counsel. Additionally, Wardlow
lodged an official grievance against Solomon with the Texas Bar Association. In January or
February of 1994, a jailer contacted Wardlow’s mother and expressed concern regarding his
mental state. Wardlow’s mother again tried to contact Solomon, and when she finally reached
him, Solomon stated that he was unhappy about the grievance Wardlow had filed.
On January 25, 1994, correctional officer Martin received a letter from Wardlow asking
to meet with Sheriff Blackburn “concerning [his] case.” The note had been routed through the
jail’s in-house mail system. It read as follows:
Patsy,
I request to speak with you concerning a matter of utmost importance. When you
are at a point of availability and are ready to speak to me I will give you the

23

request. I would also like to have a private consultation with Sheriff Blackburn
concerning my case, and will do what is necessary to receive this hearing.
Thank you,
Billy Wardlow
9 SF 15; SPTX 1.2
Sheriff Blackburn sought Judge Porter’s advice concerning Wardlow’s request, and Judge
Porter responded that the sheriff should contact Solomon prior to speaking with Wardlow and ask
that Solomon be present for any such meeting. Sheriff Blackburn also sought counsel from the
District Attorney’s office and was told that it would “probably be okay” to meet with Wardlow
as long as they did not discuss the case. Ultimately, Solomon was not notified about Wardlow’s
request for a meeting with the sheriff or of any other meetings between Wardlow and the sheriff.
Subsequently, Sheriff Blackburn met with Wardlow at the jail for approximately forty-five
minutes to an hour and fifteen minutes. Sheriff Blackburn testified at the suppression hearing that
he made it clear to Wardlow that he would not discuss the case. 9 SF 44. Sheriff Blackburn also
testified that Wardlow needed someone to talk to and that he “simply spoke to [Wardlow]. There
was no intent on doing anything other than talking to Wardlow.” 10 SF 48. The sheriff stated
that they had “an all around general type of discussion” in which they spoke about Wardlow’s
religion and mental state. 10 SF 49. Sheriff Blackburn explained his view that all individuals are
saved by their belief in Jesus and God, and that by asking for forgiveness and repenting their sins,
they would be “saved.” 9 SF 76.

2

“SPTX” refers to the numbered exhibits offered by the State and admitted for purposes of the pretrial hearing
on Wardlow’s motion to suppress his statements, which was conducted in the trial court on October 17 and
18, 1994.

24

The sheriff testified that Wardlow reported “that he was having nightmares about what had
happened, he was having trouble sleeping.” 10 SF 49. Sheriff Blackburn responded to Wardlow
that it had been his personal experience that when he sat down and wrote things out, and went
back and read them, that it helped him. 9 SF 77. Sheriff Blackburn suggested that if Wardlow
engaged in such an exercise that it might help him to deal with his problems. 9 SF 78. Sheriff
Blackburn testified that he advised Wardlow “to simply tear . . . up and destroy . . . and flush”
anything he did not wish others to read. 10 SF 50.
Thereafter, Sheriff Blackburn received a letter from Wardlow that caused the sheriff to fear
for the safety of Wardlow and his fellow inmates. As a result, on February 25, 1994, Sheriff
Blackburn moved Wardlow from a multiple-occupancy cell to a single cell, commonly known as
the “suicide cell,” where Wardlow could be observed through a window from the chief
dispatcher’s office. 9 SF 23, 26-27; 10 SF 21, 23, 32-33. Apparently, Wardlow was moved from
multiple-occupancy cells to single cells and back on several occasions during his pretrial
incarceration in the Morris County jail, though, generally, transfers were at Wardlow’s request.
9 SF 13; 10 SF 27-29, 46-47.
On February 28, 1994, approximately three weeks after Sheriff Blackburn met with
Wardlow, he received a letter from Wardlow detailing Wardlow’s involvement in Cole’s murder.
On September 11, 1994, Sheriff Blackburn received another letter wherein Wardlow shared
additional details about the offense and corrected some of his prior statements. Wardlow never
told Sheriff Blackburn that he was going to write him a letter or send him a statement. 10 SF 47.
Sheriff Blackburn testified that he did not promise Wardlow anything in exchange for the letters,

25

he did not anticipate receiving either letter, and he was extremely surprised to receive Wardlow’s
letters. 9 SF 39.
Wardlow also testified at the suppression hearing. Notably, Wardlow’s testimony was
consistent with that of Sheriff Blackburn. Wardlow stated that the sheriff advised that he would
not discuss the case and that he could not take a confession because Wardlow had an attorney. 10
SF 74. Wardlow informed the court that the two discussed religion, repentance, and “getting right
with God.” 10 SF 63. He testified that Sheriff Blackburn suggested writing down the events that
transpired from the time Wardlow left Fort Worth to the time of his conversation with Sheriff
Blackburn, read it over, and that it would help solve his problems. 10 SF 64. Wardlow claimed
that his statements were the result of his conversation with Sheriff Blackburn. Id. Nonetheless,
Wardlow confirmed that Sheriff Blackburn did not direct him to send any letters, did not make any
promises in exchange for the letters, and told him to tear up what he had written and flush it down
the toilet if he did not want others to see it. 10 SF 72. When the trial court judge asked Wardlow
why he mailed his statement to the sheriff, Wardlow stated, “I don’t know.” 10 SF 80.
At the conclusion of the suppression hearing, the trial judge ruled that both letters written
by Wardlow were admissible and made the following pertinent findings of fact and conclusions
of law in accordance with Article 38.22 § 6 of the Texas Code of Criminal Procedure and Jackson
v. Denno, 378 U.S. 368 (1964):
Findings of Fact
1.

There is no dispute over the material facts.

2.

The Defendant was arrested by the Morris County Sheriff in South Dakota and
returned to Morris County, Texas.

26

3.

The Miranda Warnings were given to the Defendant in South Dakota and the
Defendant requested an attorney.

4.

The Defendant was appointed an attorney in June of 1993 when he was returned
to Morris County.

5.

The Defense Attorney told the Sheriff not to talk to the Defendant about the case
unless he, the attorney, was present.

6.

Morris County has a small jail population and it is the customary practice of the
Sheriff to talk to and counsel with inmates if they request his help.

7.

[Wardlow] and the Sheriff had known each other eight to 10 years.

8.

[Wardlow] wrote a note or a letter to the Sheriff in January of 1994 requesting a
meeting with the Sheriff.

9.

The meeting took place one week to 10 days after the request, the meeting lasted
45 minutes to an hour and a quarter.

10.

No Miranda Warnings were given prior to the meeting.

11.

[Wardlow] told the Sheriff that he was having trouble sleeping, that he was having
nightmares and emotional problems.

12.

The Sheriff is a religious person and he discussed religion with [Wardlow], the
Sheriff also said that it often helped him to write down his problems and confront
them. The Sheriff also said that he, [Wardlow], could lie to him but not to God.
The Sheriff further told [Wardlow] that people are saved by asking God for
forgiveness and that the truth would set him free.

13.

The Sheriff suggested that [Wardlow] write out his problems and solutions and start
at a period of time prior to the date of the alleged offense.

14.

[Wardlow] testified, as did the Sheriff, that the Sheriff told him not to discuss the
case with him and if he wrote out something he didn’t want seen, he should destroy
it, flush it down the toilet.

15.

[Wardlow] testified that the Sheriff never asked for a statement and never asked
him to send a statement to him.

16.

[Wardlow] testified that he did not know why he sent the letters to the Sheriff.

17.

The Defendant sent several letters and notes to the Sheriff.
27

18.

The letters were received by the Sheriff through in-house mail.

19.

The Defendant was represented by Attorney Solomon when the February letter was
sent and by Attorney Old when the September letter was sent.

20.

No meeting occurred between the Defendant and the Sheriff before the September
letter.
Conclusions of Law

1.

The February meeting between the Sheriff and [Wardlow] was not a psychological
ploy to gain information for the State.

2.

The meeting was not the functional equivalent of an interrogation.

3.

Both the February 28th letter and the September letter amounts [sic] to a voluntary
statement and admission of guilt.

4.

The Sheriff advised he [sic] did not constitute entrapment.

5.

The meeting between the Sheriff and [Wardlow] was not a violation of the Sixth
Amendment Right to have counsel present during a confrontation between the State
and [Wardlow].

6.

The Sheriff made no attempt to elicit incriminating information during the meeting
with [Wardlow].

7.

The Meeting was not a custodial interview.

8.

No promises nor rewards were offered nor given to [Wardlow].

9.

Both letters are admissible.

12 SF 123-26.
In accordance with these findings and conclusions, the February 28, 1994, letter was
admitted into evidence and read to the jury at the guilt-innocence phase of Wardlow’s trial. 35
SF 524-27, SX 73.
The Fifth Amendment protection against compelled self-incrimination provides the right
to counsel at custodial interrogations, while the Sixth Amendment guarantee of the assistance of
28

counsel provides the right to counsel at post-arraignment interrogations. See Michigan v. Jackson,
475 U.S. 625, 629 (1986). The Fifth Amendment provides that a citizen accused shall not be
required to incriminate himself. U.S. CONST. amend. V. In Miranda v. Arizona, the Supreme
Court held that statements of the accused, arising out of custodial interrogation, could not be used
in evidence unless certain safeguards were employed to protect the right against compelled selfincrimination.
Prior to any questioning, the person must be warned that he has the right to remain
silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed . . . .
384 U.S. 436, 444 (1966).
Custodial interrogations implicate the Fifth Amendment privilege because of the danger
that law enforcement officers might exert “informal compulsion” on suspects during the
interrogation. Id. at 460-61. Miranda warnings are required only when a suspect is both in
custody and subject to interrogation. Id. at 477-78.
As the Miranda Court noted:
Confessions remain a proper element in law enforcement. Any statement given
freely and voluntarily without any compelling influences is, of course, admissible
in evidence. The fundamental import of the privilege while an individual is in
custody is not whether he is allowed to talk to the police without the benefit of
warnings and counsel, but whether he can be interrogated . . . . Volunteered
statements of any kind are not barred by the Fifth Amendment and their
admissibility is not affected by our holding today.
Id. at 478.
In Edwards v. Arizona, the Supreme Court held that an accused in custody who has
invoked his Fifth Amendment right to counsel “is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused himself initiates

29

further communication, exchanges, or conversations with the police.” 451 U.S. 477, 484-85
(1981). The Supreme Court extended the rule in Edwards to cases involving the Sixth Amendment
right to counsel holding that “if police officers initiate interrogations after a defendant’s assertion,
at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s
right to counsel for that police-initiated interrogation is invalid.” See Jackson, 475 U.S. at 636.
In Rhode Island v. Innis, the Supreme Court defined interrogation as “express questioning
or its functional equivalent.” 446 U.S. 291, 300-01 (1980). The Court further defined functional
equivalent as “words or actions on the part of police . . . that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Id. at 301.
A.

Admission of Wardlow’s Letter — Fifth Amendment

Wardlow contends that Sheriff Blackburn’s “spiritual counseling” and the prosecution’s
use of the letters that grew out of the counseling violated the safeguards provided by the Fifth and
Sixth Amendments. The Sheriff’s tactics, Wardlow claims, amounted to the functional equivalent
of an interrogation. Wardlow maintains that in light of the circumstances surrounding his meeting
with the sheriff, Sheriff Blackburn should have known that his approach was reasonably likely to
elicit a confession. Wardlow raised this claim on direct appeal, and the Court of Criminal Appeals
rejected it on the merits, concluding that Sheriff Blackburn’s conduct could not be construed as
“interrogation” and, thus, did not implicate the Fifth Amendment. Wardlow v. State, No. 72,102,
slip op. at 8-12. That conclusion is neither contrary to, nor an unreasonable application of,
Supreme Court precedent. Therefore, § 2254(d) precludes the grant of federal habeas relief on
the claim.

30

As the Court of Criminal Appeals held, the admission of Wardlow’s statement at trial did
not violate the Fifth Amendment because the statement was not given as a result of custodial
interrogation. The Innis Court defined interrogation as “express questioning or its functional
equivalent.” 446 U.S. at 300-01. It explained that the functional equivalent of interrogation
consists of “words or actions on the part of the police . . . that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Id. at 301. Wardlow does
not claim that he was expressly questioned by Sheriff Blackburn; rather, he contends only that he
was subjected to the functional equivalent of questioning.
Nothing in the record suggests that Sheriff Blackburn should have known that his meeting
with Wardlow was reasonably likely to elicit an incriminating response from Wardlow. Rather,
the record indicates that, at the meeting, Wardlow initiated contact with Sheriff Blackburn when
he asked for help in dealing with his personal emotional difficulties, and the sheriff merely listened
to Wardlow and suggested possible solutions. Importantly, it is undisputed that the circumstances
of the offense were not discussed at the meeting.
The fact that Sheriff Blackburn spoke with Wardlow concerning religion and salvation
through confession of sins and suggested that Wardlow write about things that were bothering him
does not compel the conclusion that Sheriff Blackburn should have known his advice would
prompt Wardlow to write and send him a written confession. To the contrary, although Sheriff
Blackburn counseled Wardlow about salvation through the confession of sins, he advised Wardlow
to confess to God—not to law enforcement officials. Moreover, he told Wardlow to destroy his
writings so that others would not read them. Finally, there is no indication in the record that
Wardlow’s unsolicited letter to Sheriff Blackburn sent three to four weeks after his meeting with

31

Blackburn was in fact the result of that meeting. The Fifth Amendment is simply not implicated
under these circumstances, and the CCA reasonably so concluded.
Nonetheless, Wardlow points to his inability to communicate with his attorney, his seeking
the sheriff’s assistance in obtaining other counsel, his fragile mental state, and his religious
convictions as factors increasing the likelihood that Wardlow would make an incriminating
statement. Sheriff Blackburn knew that Wardlow was frustrated with his inability to speak with
Solomon and wished to have another attorney. Additionally, although Wardlow’s attorney
instructed the sheriff not to speak to with his client without first contacting him (Solomon), and
Judge Porter advised the sheriff to notify Wardlow’s counsel, the sheriff disregarded that advice.
In addition to contacting Sheriff Blackburn, the record reveals that Wardlow wrote several letters
to jailer Martin expressing his distress, depression, violent tendencies, and possible mental
breakdown. These circumstances, Wardlow argues, made him particularly vulnerable. Finally,
Wardlow asserts that his deeply-held religious beliefs served as an avenue for the sheriff to exploit
Wardlow by encouraging him to seek forgiveness through repentance. The combination of these
factors, Wardlow argues, necessitates the conclusion that Sheriff Blackburn should have known
that his discussion with Wardlow was reasonably likely to elicit an incriminating statement.
After a careful review of the testimony from the hearing on Wardlow’s motion to suppress,
the court finds that the meeting between Wardlow and Sheriff Blackburn was not the functional
equivalent of an interrogation. From the outset, Sheriff Blackburn advised that he would not
discuss the case with Wardlow, and there is no evidence that it was discussed. The sheriff, a
religious individual himself, knew that he was speaking to a troubled person and naturally found
himself discussing what personally brought him comfort. Sheriff Blackburn suggested that

32

Wardlow write down the events that transpired from the time Wardlow left Fort Worth to the time
of his conversation with Sheriff Blackburn, but the sheriff expressly instructed Wardlow that if
he did not want anyone to see the document, he should destroy it. At no point did the sheriff ask
Wardlow to mail him a letter. In fact, it was not until several weeks after their meeting that the
sheriff received Wardlow’s first letter.

Sheriff Blackburn’s surprise at receiving the

correspondence is consistent with the conclusion that he had no reason to expect Wardlow to send
him the letters.
The testimony given at the suppression hearing supports the trial court’s conclusion that
Sheriff Blackburn made no attempt to elicit the incriminating letters. Further, Wardlow’s own
sworn statements confirm that Sheriff Blackburn had no reason to believe that his conversation was
reasonably likely to elicit an incriminating statement. Notably, Wardlow was unable to explain
or articulate why he sent the letters to the sheriff. For these reasons, the court finds that Wardlow
was not subjected to the functional equivalent of an interrogation and, consequently, his claim
fails.
B.

Waiver of Fifth Amendment Right to Counsel

Assuming arguendo that Sheriff Blackburn’s discussion with Wardlow was the functional
equivalent of interrogation, his claim nonetheless fails because he waived his Fifth Amendment
right to counsel before the “interrogation” (i.e., the meeting) took place. When a suspect asserts
his Miranda right to counsel, law enforcement officials must cease all interrogation until counsel
is provided or the suspect subsequently waives his right.

Edwards, 451 U.S. at 484-85.

Communications may not continue after invocation of the Miranda right to counsel unless the
accused initiates the interrogation. Id. In Oregon v. Bradshaw, a plurality of the Court ruled that

33

a defendant who “evinced a willingness and a desire for a generalized discussion about the
investigation” had effectively initiated conversation under Edwards, despite having earlier asserted
his right to counsel. See generally 462 U.S. 1039, 1045-46 (1983) (plurality) (stating that the
accused’s inquiry, “Well, what is going to happen to me now?” amounted to waiver of right to
counsel).
Once it is found that the accused initiated further communication, it must then be
determined whether the accused then waived his Fifth Amendment right to counsel prior to being
interrogated. Id at 1044-45. This determination must be made based on the totality of the
circumstances, “including the necessary fact that the accused, not the police, reopened the dialogue
with the authorities.” Id. at 1045; see also Edwards, 451 U.S. at 486 n.9.
Here, although Wardlow had asserted his right to counsel at the time of his arrest and was
in fact represented by counsel, he subsequently initiated contact with Sheriff Blackburn by
requesting a meeting with the sheriff and then attempting to discuss his case. When Sheriff
Blackburn refused to discuss the case with Wardlow outside his attorney’s presence, Wardlow
shifted the discussion to his emotional problems. Additionally, despite Sheriff Blackburn’s
admonishments to Wardlow that he contact defense counsel if he wished to discuss the case,
Wardlow never expressed a desire to confer with his attorney and apparently never sought his
attorney’s advice before sending the written confession three to four weeks later. The fact that
Sheriff Blackburn did not accept Wardlow’s invitation to discuss the case and launch into an
interrogation does not alter the inevitable conclusion that Wardlow, by his actions, waived his
Fifth Amendment right to have counsel present when he spoke with the sheriff.

34

C.

Sixth Amendment Claim

Wardlow’s Sixth Amendment claim is procedurally barred and, alternatively, is meritless.
1.

Independent and Adequate State Ground

As an initial matter, Wardlow’s Sixth Amendment claim is procedurally defaulted based
on the state court’s application of an independent and adequate state ground to deny relief. The
Court of Criminal Appeals refused to consider the merits of Wardlow’s Sixth Amendment claim
on direct appeal because Wardlow failed to brief the issue adequately in accordance with Rule
74(f) of the Texas Rules of Appellate Procedure. Other than asserting (in a heading) that “the trial
court erred in denying appellant’s motion to suppress his confession obtained in violation of his
Sixth Amendment right to assistance of counsel,” Appellant’s Brief at 17, Wardlow did not cite
any authority or advance any argument or legal theory in support of his Sixth Amendment claim.
Where, as here, a petitioner does not follow a state procedural rule, and review of a constitutional
claim is refused by a state court, federal habeas review is also foreclosed unless the petitioner
demonstrates either cause for the default and actual prejudice resulting therefrom or that failure
to consider the claims would result in a “fundamental miscarriage of justice.” Murray v. Carrier,
477 U.S. 478, 495 (1986); Engle v. Isaac, 456 U.S. 107, 135 (1982); Wainwright v. Sykes, 433
U.S. 72, 87 (1977). Wardlow fails to show cause for his default, resultant prejudice, or a
fundamental miscarriage of justice to excuse his default. Coleman, 501 U.S. at 749-50.
2.

Admission of Wardlow’s Letter — Sixth Amendment

This claim also fails on its merits. The Sixth Amendment right to counsel attaches at the
initiation of adversarial judicial proceedings “whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment,” and no request for counsel need be made by

35

the accused. Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality); Brewer v. Williams, 430 U.S.
387, 398 (1977). Once the Sixth Amendment right to counsel has attached, the accused is entitled
to the assistance of counsel at each “critical” stage of the prosecution, absent a valid waiver.
Jackson, 475 U.S. at 629.
Police interrogation is a critical stage. Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
If the accused has, after being informed of his right to counsel, requested or secured counsel, all
questioning must cease. Under these circumstances, law enforcement officials may not use
incriminating statements “deliberately elicited” from the accused without the presence or waiver
of counsel. Massiah v. United States, 377 U.S. 201, 206 (1964); Brewer, 430 U.S. at 399.
In the instant case, the record simply does not support Wardlow’s contention that Sheriff
Blackburn offered Wardlow spiritual guidance and advice for the purpose of deliberately eliciting
a confession from him. As previously discussed, Wardlow appealed to Sheriff Blackburn for help
in dealing with his personal emotional difficulties, and Sheriff Blackburn listened to Wardlow and
suggested possible solutions. The circumstances of Wardlow’s murder charge were not discussed.
Sheriff Blackburn’s suggestion that Wardlow reduce his concerns to writing does not require the
court to conclude that he deliberately sought and obtained a confession. This is particularly true
where, as here, Sheriff Blackburn counseled Wardlow to destroy his notes.
Moreover, other than Wardlow’s uncorroborated responses to leading questions posed by
his lawyer at the suppression hearing, there is no indication in the record that his unsolicited letters
to the sheriff sent several weeks after the meeting were the result of his conversation with the
sheriff. In fact, when the trial court judge asked Wardlow for clarification as to why he mailed
the letters to the sheriff, he testified, “I don’t know.” Again, Sheriff Blackburn did not ask

36

Wardlow to confess and refused to discuss the case at all. As the sheriff testified,“The meeting
was not to gather evidence, the meeting was simply to talk to someone that had requested to talk
to me.” 9 SF 99. Sheriff Blackburn left with no expectation of receiving a written confession and
was surprised to have received the correspondence from Wardlow.

In short, Wardlow’s

unsolicited letter confessing to the offense was not the result of a violation of his Sixth Amendment
right to counsel.
Accordingly, the court finds that Wardlow’s first claim for relief is without merit and does
not entitle him to habeas corpus relief. The state court’s decision allowing introduction of the
letters confessing to the crime was not contrary to, or an unreasonable application of, Supreme
Court precedent under Edwards, Jackson, and Innis. See 28 U.S.C. § 2254. Wardlow’s claim
must be denied.
VI.

INEFFECTIVE ASSISTANCE OF COUNSEL (CLAIM II)
Wardlow next argues that he was denied constitutionally effective assistance of counsel on

direct appeal because his appellate counsel failed to provide any argument or authority in support
of Wardlow’s point of error claiming that the trial court’s denial of Wardlow’s motion to suppress
his confession letters violated Wardlow’s Sixth Amendment right to counsel. On direct appeal,
the CCA, noting that Wardlow did not provide any authority pertaining to his right to counsel
under the Sixth Amendment, held that the point was not sufficiently briefed and overruled the
claim pursuant to Texas Rule of Appellate Procedure 74(f). Wardlow raised this ineffective
assistance claim in his state application. The CCA, however, dismissed Wardlow’s entire
application for habeas relief without reaching the merits of any of Wardlow’s claims based on his

37

desire “to waive and forego all further appeals.” Ex parte Wardlow, No. 58,548 (Tex. Crim.
App. Sept. 15, 2004) (quoting Ex parte Wardlow, No. 72,102 (Tex. Crim. App. July 14, 1998)).
The Director argues that this claim is procedurally defaulted because the CCA’s dismissal
of Wardlow’s state habeas application was based on an independent and adequate state ground to
deny relief. See Wainwright, 433 U.S. at 87. The Director correctly notes that when a petitioner
fails to follow a state procedural rule and review of a claim is refused by the state courts, federal
habeas review is also foreclosed unless the petitioner demonstrates either cause for the default and
actual prejudice resulting therefrom, or that failure to consider the claims would result in a
“fundamental miscarriage of justice.” See Coleman, 501 U.S. at 749-50.
Although Wardlow’s ineffective assistance of counsel claim is procedurally barred, the
court will nonetheless discuss the merits of the claim in the interest of justice.
Wardlow’s claims regarding both trial and appellate counsel are governed by the Supreme
Court’s clearly established standard in Strickland v. Washington, 466 U.S. 668 (1984). See
Amador v. Quarterman, 458 F.3d 397, 411 (5th Cir. 2006) (recognizing that Strickland applies
to ineffective assistance of appellate counsel claims), cert. denied, 550 U.S. 920 (2007). To
establish deficient performance, Wardlow must show that counsel’s representation “fell below an
objective standard of reasonableness.” Id. To establish prejudice, Wardlow must show that, but
for his counsel’s deficient performance, there is a reasonable probability that the outcome of the
appeal would have been different. Id. Because appellate counsel is not required to raise every
nonfrivolous claim on appeal, but may select from among them in order to maximize the likelihood
of success on appeal, it is difficult to demonstrate the incompetency of such counsel when a brief
on the merits is filed. Smith v. Robbins, 528 U.S. 259, 288 (2000).

38

Wardlow has to overcome two deferential standards of review, the first set out in
Strickland, the second under the AEDPA. See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(noting the “doubly deferential judicial review that applies to a Strickland claim evaluated under
the § 2254(d)(1) standard”); see also Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003).
An attorney’s performance, which enjoys a strong presumption of adequacy, is deficient
if it is objectively unreasonable. Strickland, 466 U.S. at 689. Counsel’s deficient performance
prejudiced the petitioner’s defense if “counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687.
Because the court has already found that Sheriff Blackburn’s conversation with Wardlow
was not the functional equivalent of an interrogation, appellate counsel’s failure to put forth
argument and authority in support of Wardlow’s claim that the trial court’s denial of Wardlow’s
motion to suppress the letters violated Wardlow’s Sixth Amendment right to counsel cannot
succeed. Wardlow’s Sixth Amendment claim would have been denied by the state appellate court
and, as such, Wardlow is unable to demonstrate that he was prejudiced by counsel’s conduct in
failing to provide argument and authority for an unsuccessful claim. See Wardlow v. Texas, No.
72,102 at 12 (Tex. Crim. App. Apr. 2, 1997) (unpublished) (holding Sheriff Blackburn’s conduct
“cannot be construed as ‘reasonably likely to elicit an incriminating response. . .’ [so] statements
cannot be said to have been made in the course of custodial interrogation”).
Similarly, an attorney’s failure to raise a meritless argument cannot form the basis of an
ineffective assistance claim because the result of the proceeding would not have been different had
the issue been raised. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.), cert. denied, 513 U.S.
966 (1994). Accordingly, Wardlow’s second claim is unfounded.

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VII.

FULFER’S DECISION NOT TO TESTIFY (CLAIM III)
In his third claim, Wardlow argues that the prosecution’s pretrial plea offer to Fulfer

interfered with her decision whether to testify at his trial and, consequently, deprived him of due
process and a fair trial. Specifically, Wardlow asserts that Fulfer would have corroborated his
testimony that the shooting occurred during a struggle for the gun, thus negating the intent
necessary to sustain a capital murder conviction. According to Wardlow, Fulfur’s decision not
to testify combined with the fact that the State conditioned her plea agreement on the completion
of Wardlow’s trial, suggests that it impermissibly interfered with his ability to mount a defense.
DE 24 at 13-24; see also DE 1 at 45-54.
Without regard to the application of Texas’s abuse-of the-writ doctrine, this claim is
procedurally barred because trial counsel never objected on the basis of substantial interference
at trial. In any event, Wardlow’s claim of substantial interference is based on nothing more than
rank speculation and hearsay and, in fact, is belied by the record. Ultimately, as established by
Fulfer’s testimony at her plea hearing, her testimony would not have aided Wardlow’s defense.
A.

Claim III — Procedurally Barred

Claim III was first raised in Wardlow’s state application for post-conviction relief, which
was dismissed by the CCA. The Director contends, as he did in response to Claim II, that this
claim is procedurally barred based on the state appellate court’s dismissal of Wardlow’s state writ.
For the same reasons set forth in the court’s analysis of Wardlow’s second claim, this claim is
procedurally barred.
Alternatively, the Director maintains that this claim is procedurally barred because defense
counsel did not object to the prosecutor’s conduct at trial. See Ex parte Dutchover, 779 S.W.2d

40

76, 77 (Tex. Crim. App. 1989) (noting that contemporaneous objection is required to preserve due
process error). See TEX. R. APP. P. 33.1(a) (requiring that, as a prerequisite for obtaining
appellate review, record must show that complaint was made by timely objection stating grounds
with “sufficient specificity” to make trial court aware of complaint); McGinn v. State, 961 S.W.2d
161, 166 (Tex. Crim. App. 1998) (“It is axiomatic that error is forfeited when the complaint on
appeal differs from the complaint at trial”); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App.
1996) (“An objection stating one legal basis may not be used to support a different legal theory
on appeal”).
Wardlow has established neither cause and prejudice nor a fundamental miscarriage of
justice so as to overcome the application of this default. See Haley, 541 U.S. at 288; Gray v.
Netherland, 518 U.S. 152, 162 (1996).
In the state habeas proceeding, the trial court made the following findings of fact and
conclusions of law:
[Wardlow] failed to object on this basis at trial. [Wardlow’s] counsel were aware
of the plea agreement between the State and Fulfer since they attempted to have the
agreement included in the record of [Wardlow’s] trial as an offer of proof. Despite
being fully aware of the factual basis asserted in support of this claim for relief,
[Wardlow] failed to articulate a trial objection.
Because [Wardlow] failed to object on this basis at trial, he has failed to preserve
any error for habeas review. On this basis, the claim is barred.
These findings by the state court are entitled to deference. In Wardlow’s case, the state
habeas judge and the trial judge were the same person; thus, his findings hold great weight. Cf.
Schriro v. Landrigan, 550 U.S. 465, 476 (2007) (state habeas judge who presided over trial “was
ideally suited” to assess credibility of defendant “because she is the same judge who sentenced
Landrigan and discussed these issues with him[]”).
41

Even assuming the absence of a procedural default, this court must honor state procedural
default rules where it is clear that the state procedural rules would have led the state court to apply
the rule had it been presented with the occasion to do so. See Hogue v. Johnson, 131 F.3d 466,
494-96 (5th Cir. 1997), cert. denied, 523 U.S. 1014 (1998). Wardlow maintains that it is not
clear that the CCA would have applied the contemporaneous objection rule in this case because
defense counsel lacked the information necessary to form a basis for an objection on the grounds
that the prosecutor was interfering with Wardlow’s ability to present Fulfer’s testimony.
In his affidavit, Wardlow’s trial counsel explained the following with regard to Fulfer’s
testimony:
Before trial, the district attorney informed me by letter that he had entered into a
plea bargain with Tonya Fulfer whereby he had agreed that she could plead to noncapital murder and be sentenced by a jury if she would cooperate and testify in the
trial against [Wardlow]. . . . By that letter, I was led to believe that Ms. Fulfer’s
testimony would support the State’s theory of capital murder. On the other hand,
[Wardlow] told me that Tonya’s testimony, if it was truthful, would support his
testimony about the circumstances of the shooting. He also believed that she would
tell the truth if she testified. At [Wardlow’s] urging, I informed Ms. Fulfer’s
attorney that I would be calling Ms. Fulfer as a witness. He told me that her
testimony would not be helpful to [Wardlow] and that in any event, on his advice,
she would assert her Fifth Amendment privilege and refuse to give any testimony.
Based on Ms. Fulfer’s testimony at her own sentencing proceeding, I now know
that her testimony would have supported [Wardlow’s] testimony about a struggle
with Mr. Cole over the gun just before the gun fired. This testimony would have
supported [Wardlow’s] testimony and been very helpful to his defense. Also, it
would have contradicted the State’s theory of the shooting. If I had known that,
I could have sought an order requiring the State to consummate its plea agreement
with Ms. Fulfer or condition it only upon Ms. Fulfer giving truthful testimony.
That way, the State’s offer of a reduced charge after the completion of [Wardlow’s]
trial would not have stood as a barrier to her providing truthful and exculpatory
evidence.
Defense counsel’s affidavit appears to support the theory that he did not know that Fulfer’s
testimony would benefit Wardlow. Although Wardlow informed his attorney that Fulfer’s
42

testimony would help his defense, Fulfer’s attorney led defense counsel to believe that the
testimony would be unhelpful or even damaging. Until Fulfer testified at her sentencing hearing,
Wardlow’s attorney did not know what she was going to say about the events leading up to and
culminating in Cole’s murder.
B.

Due Process

Assuming that the Court of Criminal Appeals would not have applied the contemporaneous
objection rule, and barring any other procedural hurdles, the court is left to the task of reaching
the merits of Wardlow’s claim.

The Fifth Circuit has held that substantial governmental

interference with a defense witness’s free and unhampered choice to testify may violate the due
process rights of the defendant. See United States v. Binker, 795 F.2d 1218, 1228 (5th Cir. 1986),
cert. denied, 479 U.S. 1085 (1987). Wardlow’s premise is that the prosecution’s plea agreement
with Fulfer, which would not be finalized until after the completion of Wardlow’s trial, influenced
Fulfer’s decision not to testify at Wardlow’s trial.
Wardlow, however, has offered no support for his position other than the terms of the plea
offer. The court is unpersuaded that the terms of the offer alone impacted Fulfer’s decision.
Further, in an unsigned affidavit from Fulfer submitted to the court, she states that her lawyer
“advised [her] to assert [her] Fifth Amendment right not to testify. He told me that there wasn’t
anything I could do to help [Wardlow] and that testifying for him would only hurt my chances of
getting a good sentence. I followed his advise [sic] and asserted the Fifth Amendment.” The
record, therefore, contradicts Wardlow’s assertion that the State substantially interfered with
Fulfer’s decision whether to testify; rather, it indicates that her choice was based solely on her

43

unwillingness to incriminate herself. Moreover, Fulfer’s testimony at her plea hearing reinforces
the conclusion that her testimony would not have been beneficial to the defense.
Wardlow’s state habeas attorney, Welch, stated in an affidavit that Fulfer told her that “she
was told by her lawyer that testifying for [Wardlow] would hurt her chances for a lenient
sentence” and that Fulfer’s attorney’s investigator tried to persuade her to testify that [Wardlow]
intended to kill the victim. These statements contradict the claim that the prosecution influenced
Fulfer’s decision not to testify at Wardlow’s trial.
During the guilt/innocence phase, Fulfer was bench-warranted from Morris County, where
she was being held, to Titus County for the purpose of testifying on Wardlow’s behalf. 37 RR
609. She was accompanied by her attorney, Charles Cobb (“Cobb”), who informed the trial court
he believed she intended to assert her Fifth Amendment privilege not to incriminate herself and
decline to testify. Id. at 611. Cobb objected to the court requiring Fulfer to assert her Fifth
Amendment privilege in the jury’s presence. Id. at 611, 615.
On the record, Cobb recommended that Fulfer not testify. Id. at 617. Fulfer responded
that she wished to take her attorney’s advice and that it was her decision not to testify at
Wardlow’s trial. Id. at 617-19. Wardlow’s counsel asked that Fulfer’s plea agreement be
included in the record as an offer of proof, but his request was denied. Id. at 621-22.
Later that same day, during the State’s cross-examination of Wardlow, the court agreed
with defense counsel that the State had opened the door to allow the defense to present testimony
before the jury that Fulfer had exercised her Fifth Amendment privilege and declined to testify.
Id. at 703-07. Wardlow then called Fulfer to the stand, and she asserted her Fifth Amendment
privilege in front of the jury. Id. at 726-27. Wardlow then called Cobb, who testified outside the

44

jury’s presence that Fulfer was presently charged with capital murder for the same offense and that
the State had offered her a plea bargain of a reduced charge of murder contingent on the
completion of Wardlow’s trial. Id. at 729-30.
Cobb made it clear, however, that the deal was not made in exchange for Fulfer’s
cooperation at Wardlow’s trial. Id. at 730, 733-35. Cobb explained that at one point, the State
had indicated that it might call Fulfer as a witness, but that decision was dependent on the
admissibility of Wardlow’s confession letters. Id. at 733. Thus, when those letters were admitted,
the State removed Fulfer from the witness list. Id. at 732. According to Cobb, Fulfer’s testimony
was never part of the plea bargain offered by the State; indeed, the deal was made prior to the
court’s pretrial ruling on the admissibility of the letters. Though the agreement would not be
finalized until after Wardlow’s trial, it was not in any way contingent on whether Fulfer testified
at Wardlow’s trial. Id. at 735; see also Supplemental SHCR at 6-7 (¶¶2–4).
In support of his claim of substantial interference, Wardlow cites United States v.
Hendrickson, in which the Fifth Circuit found a due process violation where the United States
Attorney conditioned the plea of Henrickson’s co-defendant on him not testifying at Henrickson’s
trial. 564 F.2d 197, 198 (5th Cir. 1977) (per curiam). There is a significant difference between
this case and Hendrickson: the co-defendant’s testimony “would have tended to exonerate
Henrickson.” Id. (emphasis added).
Thus, in that situation, “[i]mproper intimidation of a witness may violate a defendant’s
due process right to present his defense witness if the intimidation amounts to ‘substantial
governmental interference with a defense witness’[s] free and unhampered choice to testify.’”
United States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991), cert. denied, 502 U.S. 1105

45

(1992).

This holding has been followed by other circuits in cases presenting similar

circumstances. See United States v. Hammond, 598 F.2d 1008, 1012 (5th Cir. 1979) (finding due
process violation where FBI agent told defense witness he would have “nothing but trouble” in
pending state prosecution if he persisted in testifying); see also United States v. MacCloskey, 682
F.2d 468, 479 (4th Cir. 1982) (due process violation found where prosecutor telephoned attorney
for witness, against whom charges had been dropped, and said that attorney “would be welladvised to remind his client that if she testified at MacCloskey’s trial, should could be reindicted
if she incriminated herself during that testimony”); United States v. Morrison, 535 F.2d 223, 22728 (3d Cir. 1976) (due process violation found where prosecutor repeatedly warned prospective
defense witness about possibility of federal perjury charge and culminated indirect warnings with
highly intimidating personal interview of witness); United States v. Thomas, 488 F.2d 334 (6th
Cir. 1973) (per curiam) (due process violation found where prosecutor, through Secret Service
agent, sought out witness and gratuitously admonished him of possibility that he might be
prosecuted for misprision of a felony).
The facts of this case are readily distinguishable from the aforementioned decisions, as the
State’s plea bargain offer was not conditioned on Fulfer not testifying for Wardlow. Accordingly,
Wardlow is unable to show that the State substantially interfered with Fulfer’s decision whether
to testify. Additionally, there is no evidence in the record, and Wardlow does not allege, that
Fulfer was overtly threatened by any State actors. Further, there is no indication that Fulfer’s
decision not to testify was based on anything other than her own unwillingness to incriminate
herself. Her attorney’s advice in this regard simply does not amount to the governmental conduct

46

necessary to establish a due process violation. In short, the record clearly establishes that her
decision not to testify was Fulfer’s and Fulfer’s alone, based on her attorney’s advice.
C.

Fulfer’s Testimony

Fulfer’s testimony would not have corroborated Wardlow’s claims that the gun went off
during a struggle with Cole and, therefore, that he did not intend to kill Cole. Putting aside the
evidence that contradicts Wardlow’s testimony, other key facts support the jury’s verdict that
Wardlow intentionally murdered Cole. For instance, Wardlow came to Cole’s house armed with
a gun and cut the telephone lines, Cole was shot “execution style” right between the eyes, and
Wardlow admitted that he shot Cole because “he pissed me off.” Based on this evidence, Fulfer’s
testimony would not have exonerated Wardlow.
As the state habeas court found:
On April 18, 1995, about two and a half months after Wardlow’s trial, Fulfer plead
[sic] guilty to the lesser included offense of murder, waived her right to a jury trial
on sentencing, and was sentenced to eighteen years in prison. At the guilty plea
hearing, Fulfer testified on her own behalf concerning the events leading up to Carl
Cole’s murder. She testified that the night before the murder took place, Wardlow
told her about his plan to rob Carl Cole. He told her that he wanted her to be there
with him but that she [would not] have to do anything. Fulfer had nothing to do
with planning the robbery; she only did what Wardlow told her to do. Wardlow
explained his plan to Fulfer: He was going to knock on Cole’s door, claim that his
car had broken down, and ask to use the telephone; then after gaining entrance to
the house, he was going to knock Cole over the head with a flashlight and take his
money. Fulfer accompanied Wardlow to Cole’s house twice that night, but they
left both times because Cole was asleep; the second time, Wardlow cut the
telephone lines. They returned a third time shortly after dawn. Wardlow knocked
on the door, and Cole answered. Fulfer was standing behind Wardlow. Wardlow
told Cole his car was broken down and he needed to use the telephone to call
someone. Cole handed Wardlow a cordless phone. Finding the phone dead,
Wardlow asked Cole if he could come inside and use another phone; Cole refused.
Fulfer then saw Wardlow pull a gun out of the waistband of his pants and point it
at Cole. Until that moment, Fulfer had not known that Wardlow had a gun on him.
Wardlow had never said anything about shooting Cole; he had told Fulfer he was
only going to hit Cole over the head and take his money. Fulfer saw Cole and
47

Wardlow begin to struggle over the gun, then she turned and ran away out of the
carport. Fulfer stopped at the end of the carport, turned, and asked Wardlow to
drop the gun. According to her testimony, Fulfer [was not] looking at them when
the gun went off, and she [did not] see what happened. She was all the way out
of the carport when the gun went off. Fulfer was very surprised by what had
happened. She was shocked that Wardlow had done something like that, and she
was afraid of him. Fulfer cooperated with Wardlow thereafter because she was
afraid he would shoot her. Fulfer testified further that Wardlow accompanied
Fulfer into a bank to cash the check they had gotten for Cole’s truck; he had
threatened her with the gun before they entered the bank. Fulfer testified further
that when they were finally stopped by the police in South Dakota, Wardlow had
instructed her to hand him the gun hidden under the seat and he would “take care
of that right now.” Fulfer refused, saying they were already in enough trouble.
Supplemental SHCR at 7-8 (¶5); see also DE 9-2 at 81-86, 91-92, 96.
Fulfer’s version of the events was consistent with the State’s theory of the case as
established by Wardlow’s first letter and other witnesses. Because Fulfer did not actually witness
the shooting, she could not corroborate Wardlow’s claim that Cole was shot during a struggle over
the gun, and she certainly could not corroborate his claim that he did not intend to kill Cole.
Indeed, Fulfer testified only that she did not intend to kill Cole. As the state habeas court found:
“In light of Fulfer’s testimony at her guilty plea hearing, the court finds incredible that Fulfer
would have testified that the shooting was an accident, was not intended by Wardlow, or occurred
during a struggle over the gun.” Supplemental SHCR at 8 (¶6).
Wardlow fails to overcome the presumption of correctness afforded this finding because
he cannot. It is fully supported by the record.
Wardlow’s supplemental briefing focuses primarily on the appropriate harm standard;
however, because he cannot establish constitutional error, the court need not engage in a harm
analysis. Even so, it is well settled that the harm analysis as set out in Brecht, 507 U.S. at 619,
applies to federal habeas proceedings. See Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (stating that

48

Brecht must be applied “whether or not the state appellate court recognized the error and reviewed
it for harmlessness”). Wardlow fails to point to a different rule.
Accordingly, Wardlow’s third claim is without basis.
VIII. EXCULPATORY EVIDENCE (CLAIM IV)
In his fourth claim, Wardlow argues that the prosecution violated his Fifth, Eighth, and
Fourteenth Amendment rights when the district attorney failed to disclose that Fulfer’s version of
the offense corroborated Wardlow’s second confession and trial testimony in which he claimed that
he did not intend to kill the victim. Wardlow relies upon the Supreme Court’s decision in Brady
v. Maryland which held that “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87
(1963). Summarily stating that the prosecution suppressed favorable evidence, Wardlow contends
that the remaining issue is whether Fulfer’s information was material to the determination of
Wardlow’s guilt or punishment. Assuming arguendo that the prosecution suppressed favorable
evidence, the court will address the materiality prong. Under Brady, evidence is material “if there
is a reasonable probability that, had the evidence been disclosed, the result of the proceeding
would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Stated
differently, one demonstrates materiality by “showing that the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the verdict.”
Kyles v. Whitley, 514 U.S. 419, 435 (1995).

49

A.

Claim IV — Procedurally Barred

Like Claim III, this claim is procedurally barred because it was raised in Wardlow’s state
habeas application, which was dismissed by the CCA based on its prior order granting Wardlow’s
request to abandon his appeal. The state court’s holding was independent of federal law and
adequate to support the judgment. Wainwright, 433 U.S. at 87. Wardlow fails to show cause for
his default, resultant prejudice, or a fundamental miscarriage of justice that might excuse his
default. Coleman, 501 U.S. at 749-50. Therefore, federal habeas corpus review is precluded.
B.

Exculpatory Evidence

Wardlow also challenges his conviction and sentence on the basis that the State withheld
Brady material; namely, Fulfer’s version of the events. Under Brady, the State has an affirmative
duty to disclose to the defense evidence that is both favorable to the accused and material either
to guilt or to punishment. Bagley, 473 U.S. at 674. To succeed on a Brady claim, the petitioner
must establish: (1) the prosecution suppressed evidence; (2) the evidence was favorable; and (3)
the evidence was material either to guilt or punishment. Blackmon v. Scott, 22 F.3d 560, 564 (5th
Cir.), cert. denied, 513 U.S. 1060 (1994). “[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Bagley, 473 U.S. at 682. A “reasonable probability” is a probability
sufficient to undermine confidence in the trial’s outcome. Id. Further, “[t]he mere possibility that
an item of undisclosed information might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States
v. Agurs, 427 U.S. 97, 109-10 (1976). Rather, the petitioner must show that the evidence in

50

question could reasonably be taken to put the whole case in a different light so as to undermine
confidence in the verdict. Kyles, 514 U.S. at 435.
Wardlow’s Brady claim is not supported by the record. First, Wardlow cannot show that
the State suppressed anything. The state habeas court made the following findings regarding this
claim:
There is no evidence that Fulfer ever gave the State a statement setting forth her
version of the events leading to Carl Cole’s death. In fact, Fulfer testified [at her
guilty plea hearing] that, until the time of her guilty plea hearing, she had never
given a statement to anyone except her attorney and investigator. There is no
evidence that the State suppressed any information known to them regarding
Fulfer’s version of the events. The defense attempted to call Fulfer as a witness
at the guilt-innocence phase of Wardlow’s trial, but Fulfer asserted her Fifth
Amendment privilege and declined to testify.
Supplemental SHTR at 7/9, FF 1-3.
This finding must be presumed to be correct in this proceeding pursuant to 28 U.S.C.
§ 2254(e).3 Because Fulfer had not given a statement to the prosecution regarding her version of
the events, the prosecution had no information in its possession to suppress. Therefore, the
information was not suppressed within the meaning of Brady.
The following is a summary of pertinent evidence from Wardlow’s trial testimony, pretrial
confessions, and Fulfer’s testimony at her sentencing hearing.

3

Independent of the operation of § 2254(d) relating to state court merits adjudications, § 2254(e) provides that
“a determination of a factual issue made by a State court shall be presumed to be correct,” and the petitioner
“shall have the burden of rebutting the presumption by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); Jackson, 150 F.3d at 524. This presumption applies to state court fact-findings regardless
whether those findings are made by a trial court or an appellate court. Sumner, 449 U.S. at 546-47; see also
Craker, 756 F.2d at 1213-14.

51

Wardlow’s Trial Testimony
Wardlow testified that he planned to “incapacitate” the victim by tying him up or by taking
the victim with him and that he did not intend to kill the victim. Although Wardlow realized that
he would have to tie the victim up if he took the victim with him, Wardlow did not bring any rope
with him to the victim’s house. Wardlow explained that he anticipated finding something in the
victim’s home to use to tie up the victim. Wardlow stated that he planned to steal the victim’s
truck and that when he checked the truck he found the keys inside. He testified that he did not
take the truck immediately upon finding the keys because he did not want anyone to discover the
truck missing and then contact the authorities.
Wardlow tried to get into the victim’s house by pretending that his car was broken down
and asking to use the victim’s phone. When Wardlow attempted to get into the victim’s house,
the victim tried to close the door on Wardlow. At that point, Wardlow took out his gun, “cocked
a shell into it, and pumped it off safety and told [the victim] to go back into the house.” Instead
of going into the house, Wardlow stated that the victim “rushed out the door and grabbed [his] arm
throwing [him] off, caught [him] off balance.” Wardlow fired the gun “just to let him go, it hit
him right between the eyes . . . and catapulted him against the wall.” He did not aim the gun
between the victim’s eyes. Wardlow testified that he did not know what to do because everything
had gone wrong.
Wardlow’s Pretrial Confessions
In his first written confession, Wardlow stated that after he told the victim to get back
inside the house, the victim ran at him and caught the petitioner’s arm. “Being younger and

52

stronger, [Wardlow] pushed him off and shot [the victim] right between the eyes. Just because
he pissed [Wardlow] off. He was shot like an executioner would have done it.”
Almost seven months later, Wardlow revised his written confession because his first
statement “bent the truth to make [Fulfer] appear uninvolved.” Wardlow stated that the plan
involved tying up the victim and “taking him with us in his truck, and leaving him somewhere
away from the main road or a phone.” Fulfer reminded Wardlow of their recent incarceration for
unauthorized use of a motor vehicle and said, “We can’t leave a witness this time.” Wardlow
stated that when he struggled with the victim the shot he fired was “simply in hopes [the victim]
would let go and back up.” Wardlow claimed to be “stunned and couldn’t believe what had
happened.”
Fulfer’s Sentencing Hearing Testimony
At her sentencing hearing, Fulfer testified that when Wardlow told her about committing
the crime he said that he was going to “knock out” the victim but that he never said anything about
shooting him. She testified that when Wardlow pulled out the gun and asked the victim to step
back inside his house, the victim and Wardlow began struggling over the gun. At that point Fulfer
ran away from the petitioner and the victim. She then stopped, turned around, and yelled at
Wardlow, asking him to drop the gun. When the gun went off, Fulfer was not looking “right at”
Wardlow and the victim, and she did not see exactly what happened. Fulfer testified that she
never intended that the victim would be seriously hurt or killed and that she did not know that
Wardlow was going to shoot the victim. Fulfer further stated that it was unusual for Wardlow to
carry a pistol, but that he had one with him when they were visiting a friend’s house the night of
the murder.

53

The record does not indicate that Fulfer’s testimony was either favorable or material to his
defense. The state habeas court made the following findings regarding Fulfer’s testimony:
Fulfer testified at her guilty plea hearing (two and a half months after Wardlow’s
trial) as follows: She testified that the night before the murder took place,
Wardlow told her about his plan to rob [Cole]. He told her that he wanted her to
be there with him but that she wouldn’t have to do anything. Fulfer had nothing
to do with planning the robbery; she only did what Wardlow told her to do.
Wardlow explained his plan to Fulfer: He was going to knock on Cole’s door,
claim that his car had broken down, and ask to use the telephone; then after gaining
entrance to the house, he was going to knock Cole over the head with a flashlight
and take his money. Fulfer accompanied Wardlow to Cole’s house twice that
night, but they left both times because Cole was asleep; the second time, Wardlow
cut the telephone lines. They returned a third time shortly after dawn. Wardlow
knocked on the door, and Cole answered. Fulfer was standing behind Wardlow.
Wardlow told Cole his car was broken down and he needed to use the telephone to
call someone.
Cole handed Wardlow a cordless phone. Finding the phone dead, Wardlow asked
Cole if he could come inside and use another phone; Cole refused. Fulfer then saw
Wardlow pull a gun out of the waistband of his pants and point it at Cole. Until
that moment, Fulfer had not known that Wardlow had a gun on him. Wardlow had
never said anything about shooting Cole; he had told Fulfer he was only going to
hit Cole over the head and take his money. Fulfer saw Cole and Wardlow begin
to struggle over the gun, then she turned and ran away out of the carport. Fulfer
stopped at the end of the carport, turned, and asked Wardlow to drop the gun.
According to her testimony, Fulfer wasn’t looking at them when the gun went off,
and she didn’t see what happened. She was all the way out of the carport when the
gun went off. Fulfer was very surprised by what had happened. She was shocked
that Wardlow had done something like that, and she was afraid of him. Fulfer
cooperated with Wardlow thereafter because she was afraid he would shoot her.
Fulfer testified further that Wardlow accompanied Fulfer into a bank to cash the
check they had gotten for Cole’s truck; he had threatened her with the gun before
they entered the bank and warned her not to try anything, then he carried the gun
into the bank. Fulfer testified further that when they were finally stopped by police
in South Dakota, Wardlow had instructed her to hand him the gun hidden under her
seat and he would “take care of that right now.” Fulfer refused, saying they were
already in enough trouble. In light of Fulfer’s testimony in open court at her guilty
plea hearing, the court finds incredible any assertion that Fulfer would have
testified that the shooting was an accident, was not intended by Wardlow, or
occurred during a struggle over the gun.

54

Supplemental SHTr at 8/10, FF 4-5. These findings must be presumed to be correct in this
proceeding pursuant to 28 U.S.C. § 2254(e).
The court is also not persuaded that there is a reasonable probability that had Fulfer’s
testimony been heard by the jury, the outcome of the case would have been different. The absence
of Fulfer’s testimony does not undermine confidence in the verdict. Fulfer saw Wardlow and the
victim begin to struggle over the gun but then turned and ran away. She testified that she did not
see exactly what happened when the gun went off, and therefore could not corroborate Wardlow’s
claim that the shooting occurred during the struggle. While Fulfer stated that she did not intend
to hurt or kill the victim, she knew before they went to Cole’s house that Wardlow was in
possession of a gun. Fulfer did not know that Wardlow had brought the gun to the victim’s house,
however, until Wardlow pulled it out of the waistband of his pants. Moreover, Wardlow’s claim
that the gun went off during a struggle with Cole is not supported by the medical examiner’s
opinion that the gun was fired from at least three feet away based on a lack of gunshot residue on
the wound.
In view of Fulfer’s inability to corroborate his story, as well as its inconsistency with the
medical examiner’s findings, Wardlow’s contention that he lacked the necessary intent to commit
murder is untenable.4 Under the circumstances, Wardlow’s fourth claim provides no basis for
relief.

4

In fact, in light of Wardlow’s expressed desire to have no witnesses to the crime, it is unclear how he could
have assured such a result without killing Cole. Merely incapacitating or tying up Cole for a period of time
would not have eliminated Cole as a witness.

55

IX.

INEFFECTIVE ASSISTANCE OF COUNSEL — PUNISHMENT (CLAIM V)
In his fifth claim, Wardlow argues that his trial counsel rendered ineffective assistance of

counsel during the punishment phase in violation of the Sixth Amendment. Wardlow sets forth
four specific instances of ineffective assistance: (1) failure to investigate and present mitigating
evidence; (2) failure to provide relevant information to mental health expert; (3) failure to object
to testimony on future dangerousness; and (4) failure to object to non-expert testimony.5 As
previously discussed, to prevail on a Sixth Amendment ineffective assistance claim, Wardlow must
show that counsel’s performance was deficient, meaning that counsel’s representation fell below
an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. Additionally,
Wardlow must demonstrate a reasonable probability that, but for counsel’s deficiencies, the jury
would have reached a different result. A reasonable probability is one sufficient to undermine
confidence in the outcome of the trial. Id. at 694-95.6
A.

Failure to Investigate and Present Mitigating Evidence

Wardlow contends that trial counsel rendered ineffective assistance because they failed to
investigate and present mitigating evidence of Wardlow’s family and social history. Specifically,
Wardlow argues that trial counsel should have investigated and presented evidence to the jury
regarding his mother’s delusional and controlling personality, which resulted in abuse and neglect.
Wardlow relies upon the Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510 (2003),

5

Wardlow concedes that his claim of ineffective assistance based on defense counsel’s failure to object to
prosecution investigator Smithey’s testimony on “future dangerousness” is without merit. Accordingly, the
court will not address the claim.

6

The Director again argues that this claim is barred because it was raised in Wardlow’s state habeas application
which was dismissed by the CCA. For the same reasons set forth in the analysis of Wardlow’s second claim,
this claim is procedurally barred. The court will discuss the merits of the claim in the interest of justice.

56

which sets forth the standard for trial counsel conducting investigations of mitigating evidence in
capital cases. The Wiggins Court announced:
our principle concern in deciding whether [trial counsel] exercised “reasonable
professional judgmen[t]” is not whether counsel should have presented a mitigation
case. Rather, we focus on whether the investigation supporting counsel’s decision
not to introduce mitigating evidence . . . was itself reasonable.
Id. at 522-23.
In an affidavit submitted to this court, Wardlow’s lead trial counsel discussed how the
defense prepared for the penalty phase of Wardlow’s trial:
I had a lot of knowledge about the Cason community where [Wardlow] and his
family were from. It is a very small, rural community. I know [Wardlow’s]
parents- his father better than his mother- and I knew the [victim’s] family.

*

*

*

*

*

I also talked to [Wardlow’s parents] about what they would testify about if I called
them as witnesses. I concluded they were loose cannons and would not make good
witnesses. [Wardlow’s] mother appeared unstable and very unpredictable.
Physically, they didn’t have a good appearance and I did not think that their
demeanor was appealing. Some of the information they gave me about [Wardlow]
was inconsistent. Also, [Wardlow’s mother] had helped the sheriff find
[Wardlow].
[Wardlow’s] mother did not appear to be an affectionate person. In my opinion,
[Wardlow’s] parents gave the appearance of being very cold and I didn’t think them
testifying would help. I also asked [Wardlow] and his parents about any evidence
of brain damage or other illnesses. I do not recall anything remarkable and I do
not have any notes from my interview with either [Wardlow] or his family.
I never interviewed [Wardlow’s] brother. I think he had been in prison or had a
conviction of some kind and did not think his testimony would help.
Wardlow argues that the very character traits that counsel cites as reasons for choosing not
to call Wardlow’s parents as witnesses were signs that Wardlow “may have come from a
background of abuse, trauma, emotional volatility, and perhaps mental illness” and “should have
57

pushed counsel to probe [Wardlow’s] and his families’ [sic] life histories.” Assuming that
counsels’ investigation of mitigating evidence was deficient, Wardlow is not entitled to relief
unless he can demonstrate that but for the deficient performance, he would not have received the
death penalty. Strickland, 466 U.S. at 695. The court must “reweigh the evidence in aggravation
against the totality of the available mitigating evidence.” Wiggins, 539 U.S. at 534.
Wardlow’s mother, Lynda, discussed her mental problems and family history in an
affidavit submitted to the court. She claims to have had a mental breakdown after her second child
died and reveals that she was on medication for several years. When she became pregnant with
Wardlow, she believed that he was literally a gift from God. She states that during labor,
Wardlow was deprived of oxygen for several hours and that God intervened to bring him back to
life. According to his mother, Wardlow did not walk until he was nineteen months old and wet
his bed and pants until he was ten years old. His mother would make him wear his wet pants on
his head in an effort to break him from bed wetting.
Lynda claims that she was overprotective of Wardlow and would not let him take part in
school activities. She says that she “came down hard on him when [she] thought he was wrong
or when he lied” and believed that “it’s fair to say that [she has] a violent temper.” On one
occasion, when they were working for the Cason volunteer fire department, Lynda and Wardlow
were involved in an accident. A Cason fire truck turned over and the two were taken to the
hospital for their injuries. Disturbingly, Lynda also revealed that she believes that she was
abducted by aliens and that her oldest son Johnny might have been fathered by an alien.
Lynda claims that none of Wardlow’s lawyers ever talked to her about Wardlow’s
childhood or asked any questions about her family or background. She claims that she does not

58

remember being asked if Wardlow had brain damage or other problems. If she had been asked,
she says that she would have told the lawyers everything they wanted to know, no matter how
crazy it might have sounded.
Wardlow also submitted an affidavit to the court in which he states that his mother told him
that he was “a real child of God[ ] and that my father . . . was not my real father. I grew up
thinking that I was supposed to be special and that a lot was expected of me.” He claims that his
mother would “whip” him as a child, using belts, a car antenna, and PVC pipe, which would
sometimes leave marks. Wardlow states that he was afraid of his mother because of her frequent
tantrums which caused her to act crazy and violent. Examples of his mother’s violent tantrums
involved her hitting Wardlow’s father in the head with a steel pipe and pulling guns on Wardlow
and others she was confronting. On occasion, Wardlow wet his pants at school and his classmates
would tease him. Wardlow also claims that none of his lawyers ever asked him questions about
his childhood, his experiences in school, or his family.
A review of the affidavits and the totality of the evidence at trial fails to reveal the requisite
prejudice to Wardlow due to any deficiencies in counsels’ failure to investigate or present evidence
of Wardlow’s family history and background. Wardlow’s mitigating evidence is not substantial
in quantity and does not present an overly sympathetic case. See Woodford, 537 U.S. at 26
(upholding rejection of ineffective assistance claim where counsel failed to discover and present
evidence of the defendant’s dysfunctional family in which he suffered psychological abuse, low
self-esteem, depression, and feelings of inadequacy and incompetence). Wardlow recognizes that
the mitigating evidence in the instant case is not of the same character as the evidence in Wiggins

59

or Williams, but argues that in light of the mild aggravating evidence, failure to inform the jury
of Wardlow’s background prejudiced his case.
Wardlow contends that he had never previously committed any act of violence and the
manner of the murder was not cruel. He fails to acknowledge, however, that the victim was an
elderly man, that he planned the crime and concocted a ruse to get into the victim’s home, that he
took his mother’s gun and concealed it in his waistband, that he cut the victim’s phone lines, that
he went to the victim’s house several times before finding the most opportune moment to commit
the crime, and that he knew the keys were in the victim’s truck thereby obviating any need to
confront the victim if all he wanted to do was secure a vehicle to leave town. In this situation,
there is not a reasonable probability that introduction of the foregoing evidence regarding
Wardlow’s family history and background would have caused the jury to decline to impose the
death penalty, and the failure of counsel to discover and present the evidence does not undermine
the court’s confidence in the jury’s decision.
B.

Failure to Provide Evidence to Defense Expert

Wardlow next argues that his counsel were ineffective because they did not provide
relevant information to his mental health expert, Dr. Don Walker (“Dr. Walker”). According to
Wardlow, had the defense team known about and informed Dr. Walker about Wardlow’s family
history and background and provided Dr. Walker with the facts of the crime and Wardlow’s
involvement, Dr. Walker would have reached conclusions beneficial to Wardlow’s mitigation case.
Wardlow relies on the affidavit of clinical psychologist Dr. Paula Lundberg-Love (“Dr. LundbergLove”). Dr. Lundberg-Love received extensive information about Wardlow’s background and
family history, which she credits as the reason she is able to explain how Wardlow functioned and
why he killed the victim, as well as the reason she disagrees with Dr. Walker’s evaluation of
60

Wardlow. Specifically, Dr. Lundberg-Love claims that “if Dr. Walker had been provided with
the social history data [she was given], then he would have been aware of the familial tendency
for schizophreniform disorder.”
Assuming arguendo that defense counsel was deficient in failing to provide the
aforementioned information to Dr. Walker, the court must determine whether the failure was
prejudicial. Put another way, the issue is whether there is a reasonable probability that providing
Dr. Walker with the foregoing evidence would have changed the outcome of the penalty phase of
the case.
Wardlow does not meet this burden. Dr. Lundberg-Love reached specific conclusions
based upon her interviews of Wardlow and his family, administration of personality and
intelligence tests, as well as her review of Wardlow’s background and family history; nonetheless,
the court cannot assume that Dr. Walker would have reached the same conclusions. There is
nothing to suggest that Dr. Lundberg-Love’s interpretation of the information was correct or
reasonable. Even if Dr. Walker had reached the same conclusions, defense counsel might have
made the strategic decision to forego presenting the evidence to the jury, deciding instead to argue,
as counsel actually did, that Wardlow was not a future danger.7 Moreover, submitting evidence
suggesting that Wardlow was unstable, lacked family support, or had mental problems could have
contributed to a future dangerousness finding. Accordingly, the court is not convinced that there
is a reasonable probability that information about Wardlow’s background and family history,

7

Old, Wardlow’s lead defense counsel, testified that he told Dr. Walker what the prosecution had alleged as
to how the crime was committed by Wardlow. Old expected that Dr. Walker would evaluate Wardlow’s
ability to distinguish between right and wrong and his lack of future dangerousness, which became the basis
for Wardlow’s case against the death penalty. Wardlow told Dr. Walker during his evaluation that he had
difficulty with anger in the past, denied being abused as a child, but indicated that he was “butt whipped.”
He revealed that he had attempted suicide on several occasions and denied having hallucinations.

61

provided to Dr. Walker, would have affected the outcome of the punishment phase of Wardlow’s
trial.
C.

Failure to Object to Medical Examiner’s Testimony

Dr. Barnard testified for the prosecution that during the autopsy of the victim he did not
find any evidence of gunpowder residue at the entrance wound. As a result, he opined that the
gun used to kill Cole was fired from “somewhere around three feet or greater.” The prosecution
used Dr. Barnard’s testimony in its closing argument at the guilt/innocent phase to rebut
Wardlow’s trial testimony that the gun fired during a struggle with the victim. Wardlow argues
that Dr. Barnard’s opinions were not within his field of expertise and, therefore, defense counsel
should have objected to the testimony. In support of his argument, Wardlow submitted the
affidavit of C.E. Anderson, the former director of the Houston Police Department firearms
laboratory, which states that the only way to determine the distance from which a weapon is fired
is for a qualified firearms examiner to test-fire the weapon and examine the residue that is
deposited in the field of fire.
Despite Wardlow’s assertion, medical examiners who perform autopsies on crime victims
often testify as to the distance from which a fatal gunshot was fired based on the presence or
absence of gunpowder residue. See, e.g., Turner v. Johnson, 106 F.3d 1178, 1182 (5th Cir.
1997) (medical examiner testified that absence of gunpowder stippling on victim’s body meant that
fatal bullet fired from at least 24 inches away); Westley v. Johnson, 83 F.3d 714, 717 (5th Cir.
1996) (medical examiner testified gunshot was fired within six inches of victim), cert. denied, 519
U.S. 1094 (1997). Consequently, the court rejects the suggestion that Dr. Barnard was not
qualified to give the same type of testimony in Wardlow’s case. If defense counsel had objected
62

to the medical examiner’s testimony on this topic, the trial court would have overruled the
objection.
Wardlow has failed to demonstrate that his counsel were ineffective in any of the situations
raised. See Wiggins, 539 U.S. at 522-23. Accordingly, Wardlow’s fifth claim must be rejected.
X.

FALSE OR MISLEADING TRIAL TESTIMONY (CLAIM VI)

In his sixth claim, Wardlow argues that he was denied due process in the sentencing phase
because the prosecution knowingly allowed Smithey to testify and create false impressions about
the Texas prison system. Specifically, Wardlow contends that Smithey’s testimony left a false
impression about (a) the ineptitude of the Texas Department of Criminal Justice (“TDCJ”) in
assessing incoming non-death-sentenced inmates’ propensity for violence, classifying them
appropriately, and housing them in a manner that does not put other inmates and staff at risk;
(b) the frequency of violent acts perpetrated in TDCJ by inmates sentenced to life for capital
murder; and (c) TDCJ’s failure to take into account the nature of the crime of conviction in the
classification process. These false impressions, he argues, were ultimately material to the outcome
of the sentencing phase.
The Director raises the same procedural default argument in response to this claim as has
been asserted previously based on the CCA’s dismissal of Wardlow’s state habeas application, and
the court agrees. Additionally, the Director maintains that review of this claim is barred because
counsel failed to object to Smithey’s testimony at trial. Assuming arguendo that this claim is not
barred from further review as a result of trial counsel’s failure to object, to obtain relief, Wardlow
bears the burden of establishing that (1) the testimony was false; (2) the testimony was material;

63

and (3) the prosecution offered the testimony knowing it to be false. See Giglio v. United States,
405 U.S. 150, 153-54 (1972). The standard of materiality is “a reasonable probability of a
different result,” or stated differently, whether the jury would have reached a different verdict had
it not been for the false testimony. See Kyles, 514 U.S. at 434. Smithey’s testimony was offered
on the issue of future dangerousness. The inquiry for this court becomes whether there is a
reasonable probability that the jury would have found that Wardlow did not present a future danger
absent Smithey’s testimony.
Putting Smithey’s testimony regarding the prison classification system aside, there was
adequate evidence for the jury to conclude that Wardlow presented a future danger. Wardlow
planned the crime in advance, took his mother’s gun, concealed it in his waistband, and visited
the victim’s home several times on the night of the murder before finally confronting him.
Wardlow cut the phone lines which suggests that he anticipated an encounter with someone in the
home. Wardlow was aware Cole’s truck keys were inside the vehicle and could have taken the
truck without a confrontation; nonetheless, he chose to confront Cole and attempt to enter his
home after luring him to the door with a ruse about a broken vehicle.
Additionally, in the years leading up to the instant offense, Wardlow had pulled a gun on
an undercover narcotics officer as well as led law enforcement officers on a high-speed chase.
Shortly before the murder, Wardlow took a truck from a used car lot for a test drive and failed to
return it. During his pretrial incarceration, Wardlow hid a homemade weapon in his cell which
he intended to use to assault prison officials. In light of this evidence, Smithey’s testimony was
not material because there is not a reasonable probability that the outcome of the punishment phase

64

of the trial would have been different absent Smithey’s testimony. Wardlow’s sixth claim,
therefore, is unfounded.
XI.

FAILURE TO REBUT FALSE TESTIMONY (CLAIM VII)
Wardlow alleges in his seventh claim, as he did in his fifth claim, that defense counsel were

ineffective for failing to “confront” Smithey’s testimony with cross-examination and expert
rebuttal testimony. Wardlow states that the only preparation defense counsel undertook in
response to Smithey’s testimony was to interview Smithey at the courthouse during a recess in the
penalty phase proceedings. Again, the court finds this claim to be procedurally barred. Like the
others, this claim was raised in Wardlow’s state habeas application, which was dismissed by the
CCA based on its earlier order granting Wardlow’s request to abandon his appeal. The state
court’s holding was independent of federal law and adequate to support the judgment.
Wainwright, 433 U.S. at 87. Wardlow fails to show cause for his default, resultant prejudice, or
a fundamental miscarriage of justice that might excuse his default. Coleman, 501 U.S. at 749-50.
Therefore, federal habeas corpus review is precluded.
Furthermore, Wardlow cannot prevail on the merits of this claim. To establish ineffective
assistance of counsel, Wardlow must prove (1) that counsel’s performance was deficient and (2)
that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 697. To
establish prejudice, Wardlow must demonstrate a reasonable probability that, but for counsel’s
deficiencies, the jury would have reached a different result. Id. at 694-95. In the preceding claim,
the court found that it was not reasonably likely that the jury would have answered the special
issues in such a way that Wardlow would have received a life sentence absent Smithey’s
testimony. Because the analysis of materiality in this context is consistent with the review of
65

prejudice under Strickland, and having found that Smithey’s testimony was not material, the court
also concludes that Wardlow has failed to demonstrate prejudice from counsel’s conduct in crossexamining Smithey.
Procedural bars aside, Wardlow is not entitled to relief based on this claim. To obtain
relief on his claim that the State knowingly introduced false testimony, Wardlow bears the burden
of establishing that the evidence was false, that the false testimony was material, and that the
prosecution offered the testimony knowing it to be false. See Giglio, 405 U.S. at 153-54; see also
Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001); Chambers v. Johnson, 218 F.3d 360, 36364 (5th Cir.), cert. denied, 531 U.S. 1002 (2000). Wardlow has wholly failed to meet his burden
under the foregoing standard.
The state habeas trial court made the following findings of fact regarding this claim:
Wardlow has failed to prove that Smithey’s testimony was false. Smithey, an
investigator with the unit that prosecutes felony offenses occurring within the Texas
prison system, testified regarding the different levels of security within the prison
system. He told the jury that while capital murder defendants who receive a death
sentence are segregated from the general population and are strictly monitored and
have limited access to prison employees, capital murder defendants who receive a
life sentence go into the general population and are initially classified no differently
than any other felony offender. Smithey testified further that violent crimes, which
sometimes involve prison employees, occur fairly often within the Texas prison
system, and that the incidence of such crime is greater in the general population
than on death row. Smithey did not purport to render an opinion regarding
whether Wardlow constituted a future danger in prison. Rather, his testimony
merely described for the jury the conditions present in the Texas prison system. To
support the alleged inaccuracy of Smithey’s testimony, Wardlow relies primarily
upon compilations of statistics and studies purporting to mark a lower rate of prison
violence. However, this information does not specifically contradict Smithey’s
general assertions. And in any event, the mere existence of contradictory evidence
does not prove that Smithey’s testimony was false. Even assuming Smithey’s
testimony was false, there is no evidence that the State knew or believed it to be
false.

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Supplemental SHTR at 16/13, FF 2-3. These findings are presumed to be correct in this
proceeding pursuant to 28 U.S.C. § 2254(e). As a consequence, Wardlow’s seventh claim is
without foundation.
In conclusion, Wardlow has not shown that he is entitled to federal habeas corpus relief.
The petition for a writ of habeas corpus should be denied in its entirety.
XII.

CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus

proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c)(1)(A). Although Wardlow has not yet filed a notice of appeal, the court may address
whether he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d
895, 898 (5th Cir. 2000) (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). The Supreme Court fully
explained the requirement associated with a “substantial showing of the denial of a constitutional
right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected
a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

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Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.), cert. denied, 540 U.S. 956 (2003). “When
a district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the denial of Wardlow’s § 2254 petition
on substantive or procedural grounds or find that the issues presented are adequate to deserve
encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529
U.S. at 484). Accordingly, the court finds that Wardlow is not entitled to a certificate of
appealability as to his claims.
XIII. CONCLUSION
It is accordingly
ORDERED that the petition for a writ of habeas corpus is DENIED, and the case is
DISMISSED WITH PREJUDICE. It is further
ORDERED that a certificate of appealability is DENIED. It is finally

.
ORDERED that all motions not previously ruled on are DENIED.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Plano, Texas, this 21st day of August, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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