Beatty v. Director, TDCJ-CID
Filing
28
MEMORANDUM OPINION AND ORDER OF DISMISSAL. ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. It is further ORDERED that a certificate of appealability is DENIED. It is finally ORDERED that all motions not previously ruled on are DENIED. Signed by Judge Richard A. Schell on 7/16/2013. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TRACY LANE BEATTY,
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.
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§
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CIVIL ACTION NO. 4:09-cv-225
MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Petitioner Tracy Lane Beatty, an inmate confined in the Texas prison system, filed the abovestyled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Beatty is
challenging his capital murder conviction and death sentence imposed by the 241st Judicial District
Court of Smith County, Texas in Cause Number 241-0978-04, in a case styled The State of Texas vs.
Tracy Beatty. For reasons set forth below, the Court finds that the petition is not well-taken and that
it will be denied.
I. PROCEDURAL HISTORY OF THE CASE
Beatty was convicted and sentenced to death for the murder of his mother, Carolyn Click, in
the course of burglarizing her home. The offense took place on November 25, 2003. Based on the
jury’s answers to the special issues set forth in the Texas Code of Criminal Procedure, Article 37.071,
the trial court sentenced Beatty to death on August 10, 2004. The Texas Court of Criminal Appeals
affirmed the conviction. Beatty v. State, No. AP-75010, 2009 WL 619191 (Tex. Crim. App. March
11, 2009). He did not file a petition for a writ of certiorari.
While the direct appeal was pending, Beatty filed an application for a writ of habeas corpus
in state court on January 4, 2007. The trial court conducted an evidentiary hearing on his ineffective
assistance of counsel claims. On July 16, 2007, the trial court issued findings of fact and conclusions
of law, which contained 172 paragraphs. On May 6, 2009, the Texas Court of Criminal Appeals
denied the application with the following statement:
1
We agree with the trial judge’s recommendation and adopt the trial judge’s findings and
conclusions with the following exceptions: Findings of Fact, paragraphs 29, 60, 61, 65, 81,
100, 131, 132, 143, 154 and 160; Conclusions of Law, last sentence of paragraph 170. Based
upon the trial court’s findings and conclusions and our own review of the record, relief is
denied.
Ex parte Beatty, No. WR-59939-02, 2009 WL 1272550 (Tex. Crim. App. May 6, 2009).
The present petition (docket entry #13) was filed on June 9, 2010. Beatty presented the
following grounds for relief:
1.
Beatty received ineffective assistance of counsel in violation of the Sixth Amendment
of the United States Constitution by trial counsel’s failure to properly investigate,
discover and present mitigating evidence; and
2.
Beatty received ineffective assistance of counsel in violation of the Sixth Amendment
of the United States Constitution by trial counsel’s failure to properly investigate facts
which would have shown that this “killing” was a murder rather than capital murder.
The Director filed an answer (docket entry #19) on March 15, 2011. Beatty filed a response (docket
entry #25) on July 28, 2011.
II. FACTUAL BACKGROUND OF THE CASE
The Texas Court of Criminal Appeals discussed the factual background of the case as follows:
Appellant and Click had a volatile and combative relationship. Appellant moved into
Click's house in early October 2003. Although Click told her next-door neighbor and close
friend, Betty McCarty, that appellant had assaulted her several times in the past, Click said that
she was excited about appellant's arrival. Click's excitement, however, vanished shortly after
appellant moved in. McCarty testified that Click told her that she asked appellant to leave
sometime in October and a second time on November 25, 2003-two days before Thanksgiving
and the last day Click was seen alive. Around 4:00 p.m. on November 25th, Click went to
McCarty's house. Click was “stressed out and crying.” Click told McCarty that she was
unhappy about the way things were going with appellant and that she had asked appellant to
leave:
[Prosecutor:] What did [Click] tell you?
[McCarty:] That she had asked him to leave that day, and that-she said, “I put up with
all I'm going to put up with, and I had asked him to leave,” and she was upset about it.
And that's the last time I saw her.
[Prosecutor:] Did she tell you what time that day she had told [appellant] to leave?
[McCarty:] No, sir.
Although McCarty initially testified that Click said that she “asked” appellant to leave,
she later clarified that Click said, “I told [appellant] to leave today.” McCarty did not know
exactly when the conversation with appellant had occurred that day or when appellant was
supposed to leave:
2
[Defense counsel:] Did [Click] say specifically when ... she had that conversation with
[appellant] or when he was supposed to leave by?
[McCarty:] No, sir. I saw her at 4:00, and I didn't know anything about it until that
time. So I don't know what time she told him.
Appellant's cousin, Stacey Killough, testified that appellant arrived at her house later
that day between 5:00 and 5:30 p.m. driving Click's car. Killough testified that the drive from
Click's house to her house takes approximately forty-five minutes. Appellant smelled of
alcohol but was not intoxicated. Noting Click's absence, Killough became suspicious because
Click was “very protective” of her car and never let anyone else drive it. In fact, Killough had
previously seen Click refuse to let appellant drive the car. When Killough asked appellant
where Click was, appellant told her that Click was out of town with a friend and would not be
back for a few weeks. Because Killough was busy, appellant stayed at Killough's house for
only five to ten minutes.
Lieanna Wilkerson testified that she lived across the road from Click and that they had
become close friends. Click told Wilkerson that appellant had assaulted her on several
occasions in the past. Once appellant had “beaten her so severely that he had left her for dead.”
Click was nevertheless excited that appellant was coming to live with her and hoped that she
and appellant could mend their relationship. After appellant moved in with Click, Wilkerson
hired him to do odd jobs around her house because he was unemployed. The two became
friends, and Wilkerson referred to appellant as “Trey.” Appellant went to her house when he
and Click would argue, which was daily. Toward the end of October and the first part of
November, appellant house-sat for Wilkerson while she was out of town for several days.
Wilkerson extended the offer to appellant because she was concerned about appellant and
Click fighting, and she thought it would give them an opportunity to separate from each other.
When Wilkerson returned home, appellant's suitcase was sitting in the living room. Appellant
told Wilkerson that Click had packed his things and brought them over. Wilkerson understood
this to mean that Click had packed appellant's suitcase in an effort to kick him out. Appellant,
however, returned to Click's house and continued to live with her. According to Wilkerson,
appellant and Click fought daily in November.
Wilkerson described a conversation that she had with appellant in the middle of
November in which he expressed his anger with Click. Appellant told Wilkerson about missing
a job interview with an electric company that he had been very excited about. Click refused
to drive him to the interview, saying that “she just didn't feel like it.” Wilkerson knew that
appellant could not drive himself because Click refused to let appellant, who did not have a
driver's license, borrow her car. Around the same time, appellant told Wilkerson that he
thought about harming Click:
[Wilkerson:] I know [appellant] had said they were underpinning her house, and he had
gotten upset.... And they had gotten into a huge fight, and she was yelling at him, and
he just made an offhand comment, “I can't believe she handed me that hammer.” He
said, “Because all I could think about was hitting her in the head with it.” And I said,
“Trey,” and he goes, “Well, I couldn't do it.” He said, “If I shoved her under there, she
would have just started stinking.”
[Prosecutor:] She handed it-she being Carolyn Click, handed him a hammer. He
thought about hitting her with it, rolling her underneath the house, but she would start
to stink?
[Wilkerson:] Right. And I just thought he was joking.
3
[Prosecutor:] Did he ever make any references to hurting her, to choking her, to hitting
her?
[Wilkerson:] Several times he had said he just wanted to shut her up, that he just
wanted to choke her and shut her up, that-they got into horrible fights.
Wilkerson testified that, on November 25th, appellant ate spaghetti at her house around
6:00 or 6:30 p.m. and stayed at her house until 10:00 p.m., when he went home. The next day,
appellant gave Wilkerson a turkey. He told Wilkerson that he had bought it for Thanksgiving,
but that Click had decided to go out of town with a man named “Junior,” so they would not
need it.
Appellant told various people multiple stories about how his mother died. Appellant
first claimed to law enforcement officials that he came home one day and discovered that
Junior had killed his mother. In response to this discovery, he stabbed Junior, disposed of his
body in a lake, and buried his mother in the backyard. Appellant even took officers to a couple
of different locations where he claimed to have submerged Junior's body. Appellant told them
that he sliced Junior's body open so that it would fill with lake water and sink. In a statement
three days later, appellant reiterated the story involving Junior. But four days after that,
appellant told detectives that he “really didn't mean to” kill his mother: he “came in drunk,”
she “started bitching” at him, he choked her, she fell to the floor, and he did not realize that she
was dead until the next day.
Appellant also told his cousin, John Clary, that he had “killed the bitch.” He told Clary
that he “had gone into the house, and there had been an argument, and [Click] had pulled a gun
on him, so he went to choke her.” When Clary told appellant that he needed to turn himself in
or go back home, appellant inexplicably told Clary that he could not go back there because his
mother “would have the cops looking for him.”
Appellant also told differing stories about his mother's death to acquaintances with
whom he spent time doing drugs, using Click's credit and debit cards, and disposing of Click's
belongings in the weeks after her death. He initially told these acquaintances that his “aunt”
had died and left him her property. He later told them “a friend” killed his mother and that he
killed the friend to cover it up. He also said that he had killed “his mother's boyfriend” after
discovering that he had killed Click and that he buried both bodies in the woods.
Appellant gave differing stories to Wilkerson as well. First, he told her that he came
home to find Click dead. Junior killed Click and attacked appellant, so appellant killed him.
He then described in great detail how he disposed of Junior's body by submerging it in the lake.
He said that he buried his mother. Later, appellant told Wilkerson that he hired a friend to kill
Click and that he then killed the friend. Finally, appellant said that he killed Click on the night
of November 25th, when he returned home from having dinner at Wilkerson's house.
Wilkerson testified:
The very last thing that-incident that [appellant] told me what happened is he said
when he left my house, he went directly across the street to her house and that she was
waiting for him, and that when he came through the door, they had a horrible fight....
Appellant told Wilkerson that he ended up choking Click until she fell to the floor. He
said that he did not realize that she was dead until he woke up the next morning and saw her
lying in the same place on the floor.
Beatty v. State, 2009 WL 619191 at *1-4.
4
During the punishment phase of the trial, the State presented evidence regarding Beatty’s
extensive criminal history, including drug possession, theft, weapons possession, a brutal assault
against a child under two years of age, and prior assaults against his mother, a correctional officer and
others. A correctional officer testified about the prevalence of violence in prison and specifically
discussed Beatty’s membership in a prison gang, a physical altercation he had with Beatty, and a shank
that was found on Beatty. Royce Smith, an investigator, testified about the potential for inmate
violence in prison. Dr. Tynus McNeel and Dr. Edward Gripon testified that Beatty would likely pose
a future danger to society.
After the State rested, a lengthy ex parte hearing took place on the record between defense
counsel, Beatty and the trial court. 48 RR 3-22.1 Beatty’s trial counsel enumerated the steps they had
taken in order to prepare for the penalty phase. He noted that a psychiatrist and a psychologist had
been appointed to assist the defense, but neither found any mitigating factors and both indicated that
it was their opinion that Beatty would pose a future danger. Dr. Allen specified in a letter that it would
be impossible for him to testify in Beatty’s behalf. Id. at 6. Trial counsel pointed out that they, their
investigator, and their mitigation expert all attempted to locate possible mitigation witnesses without
success. Beatty informed his attorneys that he did not want to testify. Id. at 7. Beatty stated that he
understood the position that his defense team was in and concurred that he did not want to testify nor
did he want two possible witnesses called. Id. at 17-21.
Before the jury, the defense rested without presenting any punishment evidence.
III. LEGAL STANDARD
The petition was filed in 2009, thus review is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a
petitioner who is in custody “pursuant to the judgment of a State court” is not entitled to federal habeas
corpus relief with respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim -
1
“RR” refers to the trial transcript, preceded by the volume number and followed by the page number(s).
5
(1)
resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the United
States; or
(2)
resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceedings.
28 U.S.C. § 2254(d). “By its terms § 2254 bars relitigation of any claim ‘adjudicated on the merits’
in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 131
S.Ct. 770, 784 (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, ___, 130 S.Ct. 1855, 1862 (2010) (citation and internal quotation marks omitted). With
respect to the first provision, a “state court decision is ‘contrary to’ clearly established federal law if
(1) the state court ‘applies a rule that contradicts the governing law’ announced in Supreme Court
cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially
indistinguishable facts.” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)).
“[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,
131 S.Ct. 1388, 1398 (2011). As such, “evidence later introduced in federal court is irrelevant.” Id.
at 1400. “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). 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); Goodrum v.
Quarterman, 547 F.3d 249, 256 (5th Cir. 2008). Most recently, the Supreme Court held that a “state
court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.” Richter, 131 S.Ct. at 786. 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
6
state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685,
693 (2002). Federal habeas corpus relief is not available just because a state court decision may have
been incorrect; instead, a petitioner must show that a state court decision was unreasonable. Id. at 694.
IV. DISCUSSION AND ANALYSIS
A. Ineffective Assistance of Counsel Regarding Mitigating Evidence
The petition includes two ineffective assistance of counsel claims. He initially alleged that his
attorneys, Robert Perkins and Ken Hawk, were ineffective for failing to investigate, discover and
present mitigating evidence. While preparing the state application for a writ of habeas corpus, Beatty’s
attorney obtained the services of Sheri Stillwell, a mitigation investigator, and Sonny Monteagudeo,
a fact investigator. They engaged in efforts to discover people who could have offered mitigating
evidence at trial. Five people were identified as possible mitigation witnesses, including Tim Day, the
victim’s former husband, along with Chad Day and Kamie Day Bentley, his children from a previous
marriage, and acquaintances Leanne Wilkerson and Twyla Johnson.
The state trial court conducted an evidentiary hearing regarding Beatty’s state habeas claims
over a four day period of time starting on May 4, 2007. Fifteen people testified during the hearing.
With respect to this particular ground for relief, the hearing focused on the actions of Robert Perkins,
who was lead counsel at trial, and Ken Hawk, who was co-counsel. Perkins testified that he focused
on the guilt/innocense phase of the trial while Hawk focused on punishment. The trial court granted
his requests to appoint several other individuals to help with the defense. Roy Linn was appointed as
an investigator. Holly Randall was appointed as the mitigation expert. Dr. Allen and Dr. Self were
appointed to look into the issue of future dangerousness. Dr. Frost was appointed as the medical
expert to review the autopsy report. Linn, Allen and Self were brought into the case early on, while
Randall and Frost were brought in during the midrange of development of the defense.
Perkins testified that the defense team worked from the beginning of the case on finding names
of people who would be beneficial to the defense. The state court found that they initially attempted
to find the names of potential witnesses based upon what Beatty told them about his life. Supp. CR
7
at 70.2 Beatty was not, however, helpful in providing them with sources of mitigating evidence. The
state court found that Beatty consistently told his attorneys that he did not want to get convicted of
capital murder, receive a life sentence, and then spend 40 years in prison before being eligible for
parole. Id. at 71. Beatty was outspoken in providing answers to his questions, but he was not helpful
in providing mitigation evidence. Hawk testified that he did not recall Beatty ever giving the defense
team the name of anyone to speak to. Beatty was aware that the defense team was trying to save his
life, but Beatty was clear that he would rather have the death penalty. The state court found that
Perkins testified that they followed up on the name of any witness given to them by Beatty, however,
nothing Beatty told them ultimately “panned out to be in our minds, more mitigating than aggravating.”
Id. at 72. They supplemented their list of names based on discovery provided by the State and by their
own investigative efforts. Id. at 70. Perkins testified that he was not aware of the names Tim Day,
Chad Day, Tammie Bentley, Kim Patterson, Melanie Carmichael or David and Danny Wyatt. Id.
The defense attorneys developed a strategy about how they would proceed with mitigating
evidence. They decided to offer evidence as mitigating evidence during the punishment phase only
if it was helpful. The state court found that the attorneys testified that they considered the good and
the bad of each potential punishment witness and if the bad outweighed the good then they would not
risk opening the door to overwhelming aggravating evidence in order to establish a single mitigating
factor. Id. at 75-76. They made a strategic decision not to present double-edged type evidence. Their
strategy was to focus on offering helpful evidence. Hawk testified that otherwise, “it’s going to end
up hurting you, because it’s going to come off to the jury as you’re wasting their time or floating a
ridiculous theory or something else. So it’s got to help you.” 3 Supp. RR 125.3 They decided that
they would not put forth evidence that had a positive element if there would be a net loss. Perkins
further testified that he did not want to prejudice any chance Beatty had at receiving a life sentence by
2
“Supp. CR” refers to the Clerk’s Supplemental Record from the habeas proceeding, followed by the page
number(s).
3
“Supp. RR” refers to the transcript from the state habeas proceeding, preceded by the volume number
and followed by the page number(s).
8
presenting evidence that could be considered double-edged in that it carried mitigating weight but
could at the same time be aggravating. Supp. CR at 72. Perkins testified that they made a strategic
decision that it probably was not in Beatty’s best interest to testify. The state court found that Perkins
thus had a problem with not having a witness who could sponsor things that Beatty told him about his
background and relationship with his mother. Id. at 71. The state court found that Perkins believed
that trying to get evidence into the punishment phase that Click was married several times would not
be “more beneficial than offensive.” Id. at 72. A decision was made not to call James Clary, who was
Beatty’s uncle, after talking to him because he would not have offered anything beneficial to the
defense. Hawk further testified that the defense team discussed the defense strategy with Beatty and
he agreed to it. Hawk testified that he did not think that there would be any verdict other than murder
or capital murder in light of the evidence. Consequently, they made the strategic decision to focus on
getting a conviction for murder, as opposed to capital murder. He acknowledged that the strategy did
not work, but they believed that it was the appropriate strategy. Moreover, Beatty never denied
murdering his mother.
Roy Linn, the investigator for the defense team, testified about his experience as a law
enforcement officer and investigator. He had prior experience as an investigator in a capital murder
case before he was appointed to the Beatty case. He had been appointed as an investigator for criminal
defense in capital murder cases 15 to 20 times. He testified that he assisted the defense attorneys and
acted at their direction. He provided them with reports as to his findings. The state court found that
Linn was an extensively experienced criminal investigator and a credible witness. Id. He met with
Holly Randall for over four hours. Id. at 78. The state court found that Linn testified that it is very
important to get the criminal defendant’s input during preparation of a defense, especially in capital
cases, and that Betty was not very helpful and was very hard to communicate with. Id. It was further
found that Linn spent many hours looking for potential mitigating witnesses, but he could not find “at
least one person to testify on behalf of the defendant.” Id. Linn described Beatty as a “loner” without
many friends. Id. Beatty told Linn that he choked his mother until she was unconscious because she
grabbed his shoulder, left her on the floor, and went to bed. Beatty told him that when he awoke, he
9
found Click lying dead on the floor where he had left her the night before. Id. The state court found
that Beatty always referred to his mother as “the bitch.” Id.
Holly Randall testified over a two day period. The state court found that Randall testified that
she was an experienced mitigation specialist who was assigned to assist Beatty’s defense team. Id. at
81. She testified that she interviewed Beatty on three occasions in an attempt to get names of witnesses
she could contact regarding mitigating evidence. She spent 91 hours in preparation for trial. Id. She
prepared a report as a result of her investigation. She included the names of anyone Beatty mentioned
to her. She acknowledged that her report mentioned that Click married Tim Day in 1978, but she did
not talk to Day. Randall discovered that Click had numerous boyfriends and marriages. She was
aware that Beatty had step-siblings, but she was not aware by whom he had these step-siblings. Beatty
lived with his grandparents. She was unable to obtain several medical records about Click that were
old and had been destroyed.
The state court found that she was unable to obtain medical
documentation that Click shot herself in a suicide attempt while she was pregnant with Beatty. Id. It
was found that a strategic decision was made not to present evidence of the victim’s medical problems
only after a “very serious” discussion between the defense team. Id. The state court found that Beatty
did not tell Randall the names of the Day siblings nor of the Wyatts. Id. at 82. Randall testified that
she did not feel that the evidence that was available regarding Beatty’s childhood and relationship with
his mother would have “change the outcome” had it been presented. Id. Randall testified that she felt
like the defense team worked very hard and did a thorough job within the time constraints placed upon
them by the scheduling of trial. Id. She felt that the defense team’s efforts were so concentrated that
they had accomplished in two months what would normally take them five months. Id. Randall
expressed the opinion that she did a “very good job.” Id. In her opinion, the aggravating evidence
“very much” outweighed any mitigating value of the Day siblings’ testimony. Id.
With respect to the five witnesses cited by Beatty in his petition who could have been used to
present mitigating evidence, Tim Day was the first witness. He testified that he was married to Click
from 1978 through 1984. He determined during their marriage that Click had mental issues. She
overdosed on medications several times. He observed one physical altercation between Click and
10
Beatty with Click on Beatty’s back. At one point during the marriage, Beatty was kicked out of the
house by Click because he stole Click’s vehicle and crashed it. Day described Beatty as very high
strung and a hot-headed person. He had his suspicions that Beatty was using drugs, but nothing was
confirmed. The state court found that he disagreed with Sheri Stillwell’s affidavit which avers he
witnessed Click being abusive to Beatty. Id. at 73. He could not say whether Beatty contributed to
his marital problems with Click. He testified that he could not think of “any connection” between what
he saw during the marriage to Click’s murder 27 years later. The state court found that Tim Day was
a credible witness whose testimony would have presented significantly more aggravating than
potentially mitigating evidence to the jury. Id. at 73.
Chad Day, Tim Day’s son from a previous marriage, testified that Click physically and
emotionally abused the children. He observed Click pull out his sister’s hair. He testified that she
engaged in bizarre behavior. He was not allowed to have any friends over to the house. He believes
that Click showed favoritism towards Beatty. He testified that it did not appear to him that Beatty was
bothered by anything that was happening to him. He did not recall Beatty ever offering any help or
showing signs of compassion. He specified that if he had testified, he would have told the jury that
Beatty stayed in trouble a lot, he stole a car and wrecked it, and that he tried to shoot the neighbor’s
dog and struck their house by mistake. Beatty smoked marijuana in his presence. He was 10 or 11
at the time and Beatty was 17 years old. He stated he would have also told the jury that he saw Beatty
throw Click against a refrigerator and knock her unconscious. The state court found that Chad Day
was a credible witness whose testimony would have presented significantly more aggravating than
potentially mitigating evidence to the jury. Id.
Kamie Day Bentley testified that Click subjected her to mental and physical abuse. She noted
that Beatty intervened in one incident. She testified that she never saw Click physically assault Beatty.
She never saw him beat her. She did not recall any arguments between them. She added that he lived
in town much of the time when her father was married to Click. Other than the one incident where
Beatty intervened, she could not remember one good thing to say about Beatty. She noted that it had
been twenty-something years since her father and Click were divorced. The state court found that
11
Kamie Day Bentley testified that she could not remember one good thing to say about Beatty other than
the single act of intercession. Id. The state court further found that Bentley was a credible witness
whose testimony would have presented more aggravating than potentially mitigating evidence to the
jury. Id. at 75.
Twyla Johnson testified during the writ hearing that she was an acquaintance of Click. She
observed an argument between Click and Beatty. Click was abusive towards Beatty and called him
“stupid,” “retarded,” and “dumb.” She testified that she was never contacted by the defense team. The
state court found that Beatty went over to Johnson’s house with a turkey after he killed his mother and
ate Thanksgiving dinner with her family and friends, and that she did not know at the time that he had
buried the victim in the backyard of her house on the previous day. Id. at 76.
Leanne Wilkerson testified that she had known Click for approximately ten years. They lived
across the street from each other. She met Beatty after he was paroled from prison and started living
with his mother. She described Beatty as a good friend, who ate his meals with her. She heard
arguments between Click and Beatty. She disputed the characterization of Click at trial as a poor, little
weak disabled lady. She testified that Click sometimes became angry for no apparent reason. At
times, she was a very nice lady and at other times a “mean cold hearted bitch.” She described Click
as eccentric, controlling, and strange. On one occasion, Beatty was excited about a job interview, but
Click did not feel like taking him to the interview. Beatty was disappointed and upset. Beatty stressed
in his petition that none of this evidence was presented to the jury. Since the time of the trial, she has
had frequent contact with Beatty, they both signed their letters “Love” and that Beatty wrote that he
loved her, although she claimed it was purely a friendship she had with Beatty. The state court found
that Ms. Wilkerson was a biased witness who may let her relationship with Beatty taint her testimony
to paint him in a better light. Id. at 77.
The state court discussed additional evidence that potentially could have been used as
mitigating evidence. The court noted that Perkins was of the opinion that it would have been a disaster
to put his psychological experts on at punishment because their testimony would have been that Beatty
was a “very high risk for continued acts of criminal violence” and was either “a psychopath” or
12
suffered from “anti-social personality disorder,” which would have hurt Beatty’s case. Id. at 70. The
state court found that Perkins did not believe that evidence of Beatty’s anti-social personality
diagnosed in a previous prison stay would have been helpful to Beatty at punishment because he
believed that the more dangerous a capital offender appears to the jury, the more likely the jury will
assess the death penalty. Id. at 71. It was further found that Perkins thought that evidence of Beatty’s
head injuries and antisocial personality would have been double-edged testimony. Id. at 75. The state
court found that Perkins made a strategic decision not to present evidence that Beatty was enrolled in
the PAMIO (“Program for Aggressive and Mentally Ill Offenders”) because of the implications of the
name of the program, the fact that Beatty did not “flourish” in it, and because after his discharge from
PAMIO he killed his mother. Id. at 71. Hawk agreed with the strategic decision not to present
evidence of the PAMIO program. Id. at 76. The state court found that Perkins would not assign any
mitigating value to evidence, if it existed, that Click was addicted to drugs and alcohol. Id. at 72. It
was further found that Perkins stated that he did not know how he could have presented evidence that
Beatty was impacted by the lack of a father in his life without Beatty testifying. Id.
The state court found that both attorneys expressed the opinion that they provided effective
assistance of counsel. Id. at 75, 76. The state court found that Beatty failed to overcome the strong
presumption that counsel’s conduct was reasonable and professional. Id. at 82. As a conclusion of
law, the state court made the following finding regarding Sheri Stillwell, who was Beatty’s mitigation
specialist for purposes of the state writ proceedings:
The Court finds and concludes that the affidavit of Ms. Sheri Stillwell, who did not testify at
the evidentiary hearing, is overly biased and contains intentionally one-sided or exaggerated
accounts of the witness interviews she conducted. For instance, the testimony at the hearing
established that she would only ask potential witnesses about whatever they could testify
negatively regarding the victim while ignoring the overwhelming aggravating evidence they
had concerning Applicant to label the witness “mitigating.” Moreover, she states both legal
and medical conclusions regarding potential evidence that she simply is not qualified to make.
The Court concludes that her entire affidavit should be discounted as unreliable and
misleading, perhaps intentionally so.
Id. at 83. The state court concluded that Beatty had not met his burden in establishing that his trial
attorneys were ineffective for making the reasonable strategic decisions to proceed in the manner they
did in this case. Id. at 84. The state court found that Beatty was represented by counsel who provided
13
effective assistance of counsel. Id. The state court further found that there was no credible evidence
before the court that his trial attorneys and defense team provided ineffective assistance. Id. The state
court finally found that the complaints contained in the state application for a writ of habeas corpus
were not well taken and should be denied. Id.
Beatty argued that his attorneys failed to properly investigate, discover and present mitigating
evidence in violation of Strickland v. Washington, 466 U.S. 668 (1984). He focused on the following
three Supreme Court cases in discussing the duties of counsel during the sentencing phase of a capital
trial: Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 539 U.S. 510 (2003); and Rompilla
v. Beard, 545 U.S. 374 (2005). In these cases, the focus in determining whether counsel was deficient
was “on whether the investigation supporting counsel’s decision not to introduce mitigation evidence
... was itself reasonable.” Wiggins v. Smith, 539 U.S. at 523. In Wiggins, the defense counsel’s
investigation was unreasonable because counsel consulted only two sources regarding the defendant’s
“life history”: a one-page pre-sentence investigation and a city social services record. Id. Similarly,
in Williams v. Taylor, counsel’s investigation was unreasonable because counsel failed to obtain prison
records showing Williams's nonviolent behavior and failed to obtain other records indicating Williams’
“nightmarish childhood” due to counsel’s incorrect belief that state law barred access to such records.
529 U.S. at 395-96. And in Rompilla v. Beard, counsel’s investigation was unreasonable because
counsel failed to review a prior conviction file used by the prosecution, a file that would have alerted
counsel that further investigation was necessary. 545 U.S. at 390-91.
The legal principles governing ineffective assistance of counsel claims were established by the
Supreme Court in Strickland. Strickland provides a two-pronged standard, and a habeas petitioner
bears the burden of proving both prongs. 466 U.S. at 687. Under the first prong, a petitioner must
show that counsel’s performance was deficient. Id. To establish deficient performance, he must show
that “counsel’s representation fell below an objective standard of reasonableness,” with reasonableness
judged under professional norms prevailing at the time counsel rendered assistance. Id. at 688. The
standard requires the reviewing court to give great deference to counsel’s performance, strongly
presuming counsel exercised reasonable professional judgment. Id. at 690. Under the second prong,
14
a petitioner must show that his attorney’s deficient performance resulted in prejudice. Id. at 687. To
satisfy the prejudice prong, the habeas petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
An ineffective assistance of counsel claim fails if a petitioner cannot satisfy either the deficient
performance or prejudice prong; a court need not evaluate both if he makes an insufficient showing
as to either. Id. at 697.
In the context of § 2254(d), the deferential standard that must be accorded to counsel’s
representation must also be considered in tandem with the deference that must be accorded to state
court decisions, which has been referred to as “doubly” deferential. Harrington v. Richter, 131 S.Ct.
770, 788 (2011). “When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable.
The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. “If the standard is difficult to meet, that is because it was meant
to be.” Id. at 786. Also see Morales v. Thaler, 714 F.3d 295, 302 (5th Cir. 2013).
Beatty argued that his attorneys were ineffective because they failed to investigate, discover
and present mitigating evidence. In a capital sentencing proceeding, “defense counsel has the
obligation to conduct a “reasonably substantial, independent investigation’ into potential mitigating
circumstances.” Neal v. Puckett, 286 F.3d 230, 236-37 (5th Cir. 2002) (quoting Baldwin v. Maggio,
704 F.2d 1325, 1332-33 (5th Cir. 1983)). See also Woods v. Thaler, 399 Fed. Appx. 884, 891 (5th Cir.
2010), cert. denied, 131 S.Ct. 2444 (2011). In assessing whether counsel’s performance was deficient,
courts look to such factors as what counsel did to prepare for sentencing, what mitigation evidence he
had accumulated, what additional “leads” he had, and what results he might reasonably have expected
from those leads. Neal, 286 F.3d at 237. The reasonableness of counsel’s investigation involves “not
only the quantum of evidence already known to counsel, but also whether the known evidence would
lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. at 527. See also Blanton
v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008), cert. denied, 129 S.Ct. 2383 (2009). “[C]ounsel
should consider presenting . . . [the defendant’s] medical history, educational history, employment and
15
training history, family and social history, prior adult and juvenile correctional experience, and
religious and cultural influences.” Id. at 524 (citing ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases § 11.8.6, at 133 (1989). The Supreme Court stated
in Wiggins that the “investigation into mitigating evidence should comprise efforts to discover all
reasonably available mitigating evidence.” Id.
The Court added, however, that the investigation into mitigating evidence has limits:
[We] emphasize that Strickland does not require counsel to investigate every conceivable line
of mitigating evidence no matter how unlikely the effort would be to assist the defendant at
sentencing. Nor does Strickland require defense counsel to present mitigating evidence at
sentencing in every case. Both conclusions would interfere with the “constitutionally protected
independence of counsel” at the heart of Strickland, 466 U.S., at 689, 104 S.Ct. 2052. We base
our conclusion on the much more limited principle that “strategic choices made after less than
complete investigation are reasonable” only to the extent that “reasonable professional
judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052. A decision
not to investigate thus “must be directly assessed for reasonableness in all the circumstances.”
Id., at 691, 104 S.Ct. 2052.
539 U.S. at 533. In Wiggins, the Supreme Court held that counsel’s representation “fell short of . . .
professional standards” for not expanding their investigation beyond the investigation report and one
set of records they obtained, particularly “in light of what counsel actually discovered” in the records.
Id. at 524-25. More recently, the Court found counsel’s representation deficient when he failed “to
conduct some sort of mitigation investigation” even though his client was fatalistic and uncooperative.
Porter v. McCollum, 558 U.S. 30, 40 (2009). See also Rompilla v. Beard, 545 U.S. at 381-82
(counsel's investigation was unreasonable because counsel failed to review a prior conviction file used
by the prosecution, a file that would have alerted counsel that further investigation was necessary). On
the other hand, the Supreme Court has found that counsel’s performance was not deficient where he
gathered a substantial amount of information and then made a reasonable decision not to pursue
additional sources. Bobby v. Van Hook, 558 U.S. 4, 11-12 (2009). Similarly, in Strickland, the Court
found that counsel’s decision not to seek more character or psychological evidence than was already
in hand was reasonable. Strickland, 466 U.S. at 699. In order to establish that counsel was ineffective
due to a failure to investigate the case, Beatty must do more than merely allege a failure to investigate;
instead, he must state with specificity what the investigation would have revealed, what specific
16
evidence would have been disclosed, and how the evidence would have altered the outcome of the
trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F.Supp.2d 661,
691 (S.D. Tex. 2001).
In the present case, trial counsel engaged in efforts to comply with professional standards,
including ABA guidelines, for investigating, discovering and developing mitigating evidence. The
attorneys assembled a team to discover such evidence, which included the appointment of an
investigator, a mitigation expert, psychologists to look into the issue of future dangerousness and a
medical expert to review the autopsy report. Beatty was interviewed in order to uncover the names
of potential witnesses, although he was not helpful. Despite the fact that Beatty expressed a desire to
be executed as opposed to receiving a life sentence, they persisted in conducting an investigation in
order to discover mitigating evidence. In this sense, counsel’s efforts were distinguishable from those
described in Wiggins and Porter. Randall spent an extensive amount of time investigating possible
leads, including medical leads, and Linn interviewed the people who were discovered though the
investigation. Ultimately, however, the investigation failed to uncover any credible person to testify
on Beatty’s behalf. Trial counsel was not deficient for failing to discover mitigating evidence where
no reasonable lead was available. Blanton, 543 F.3d at 239.
Beatty acknowledged in his petition that trial counsel did not totally abrogate their duties as
trial counsel in a capital murder case. He acknowledged that trial counsel incorporated a defense team
that included psychological/psychiatric experts, a mitigation investigator and a forensic expert. He
argued that the assembling of the team did not constitute effective assistance per se. He argued that
counsel was ineffective because much work was left undone and potential witnesses were not
contacted. His position basically stands for the proposition that counsel was ineffective because there
were witnesses who could have been discovered and their testimony could have been used as
mitigation evidence. However, the defense team endeavored to discover all potential leads and to
investigate them. Perkins testified that nothing “panned out.” Supp. CR at 72. Once again, the
defense team cannot be viewed as ineffective for failing to discover mitigating evidence where no
reasonable lead was available.
17
Beatty argued that all potential mitigating evidence should have been brought to the jury’s
attention. Trial counsel, however, developed the trial strategy that they would offer mitigating
evidence if the good outweighed the bad evidence. They did not want to risk opening the door to
overwhelming aggravating evidence in order to establish a single mitigating factor. Their goal was to
avoid prejudicing any chance that Beatty had of receiving a life sentence. For purposes of the present
proceeding, Beatty disputes their approach and argued that there was not anything to lose since the vast
majority of the testimony had already been heard by the jury. Nonetheless, the decision to forego
presenting “double-edged” evidence was a reasonable trial strategy. Brown v. Thaler, 684 F.3d 482,
499 (5th Cir. 2012), cert. denied, 133 S.Ct. 1244 (2013); Hopkins v. Cockrell, 325 F.3d 579, 586 (5th
Cir. 2003) (holding that a tactical decision not to pursue and present potentially mitigating evidence
on the ground that it is double-edged in nature is objectively reasonable); Rodriguez v. Quarterman,
204 Fed. Appx. 489, 500 (5th Cir. 2006), cert. denied, 549 U.S. 1350 (2007). Defense counsel would
not have presented any of the Day family members because their testimony would have been more
aggravating than mitigating. For the same reason, they would not have presented Twyla Johnson or
Leanne Wilkinson as mitigating witnesses.
Counsel also strategically declined to offer Click’s medical records. The state court found that
the members of the defense team were in agreement that it would not bode Beatty well to try to paint
Click in a negative light in front of a Smith County jury when the greater weight of the evidence
showed that she doted on Beatty and did nothing to deserve the cruel beating and murder she suffered
at her son’s hands. Supp. CR at 83. The state court found that the decision to forgo offering such
evidence was a fully-considered strategical decision and that Beatty failed to overcome the strong
presumption that counsel’s conduct was reasonable and professional. Id.
After reviewing all of the evidence and testimony presented during the habeas evidentiary
hearing, the state court found that Beatty failed to overcome the strong presumption that counsel’s
conduct was reasonable and professional. Applying the doubly deferential standard that must be
accorded to state court decisions on the merits regarding ineffective assistance of counsel claims, the
Court concludes that Beatty has not shown that counsel’s representation was not reasonable nor that
18
the state court’s findings were unreasonable. At best, Beatty demonstrated that fairminded jurists
could disagree on the correctness of the state court’s decision, but federal habeas relief is precluded
because he failed to show that all reasonable jurists would disagree with the state court’s conclusion
that counsel’s representation was not deficient. He failed to satisfy the first prong in the Strickland
analysis.
The analysis with respect to the first ineffective assistance of counsel claim could end at this
juncture; nonetheless, relief should also be denied because Beatty failed to satisfy the prejudice prong.
In reviewing the issue of prejudice at capital sentencing, courts must weigh the quality and quantity
of the available mitigating evidence, including that presented in post-conviction proceedings, along
with the aggravating evidence. Williams v. Taylor, 529 U.S. at 397-98; Blanton, 543 F.3d at 236. The
question for a court’s consideration is whether the changes to the mitigation case would have a
reasonable probability of causing a juror to change his or her mind about the death penalty. Blanton,
543 F.3d at 236; Neal, 286 F.3d at 241. “The likelihood of a different result must be substantial, not
just conceivable.” Richter, 131 S.Ct. at 792 (citing Strickland, 466 U.S. at 693). There is no prejudice
when the new mitigating evidence “would barely have altered the sentencing profile presented” to the
decisionmaker.” Sears v. Upton, 130 S.Ct. 3259, 3266 (2010) (citing Strickland, 466 U.S. at 700).
As an initial matter, Beatty cannot satisfy the prejudice prong because he blocked counsel’s
efforts to discover and present mitigating evidence. In preparation for trial, he did not provide the
defense team with any names of people who could provide mitigating evidence. He expressed a
preference for the death penalty, as opposed to life in prison. He would not help his attorneys develop
a case in an effort to secure a life sentence, as opposed to the death penalty. During the ex parte
hearing in the punishment phase of the trial, Beatty expressed an understanding about counsel’s efforts
to develop and present mitigating evidence in his behalf and he advised the trial court that he did not
want to testify and did not want his possible mitigating witnesses called to testify.
“Under Fifth Circuit case law, ‘when a defendant blocks his attorney’s efforts to defend him,
including forbidding his attorney from interviewing his family members for purposes of soliciting their
testimony as mitigating evidence during the punishment phase of the trial, he cannot later claim
19
ineffective assistance of counsel.’” Sonnier v. Quarterman, 476 F.3d 349, 362 (5th Cir. 2007) (quoting
Roberts v. Dretke, 356 F.3d 632, 638 (5th Cir. 2004)). The Supreme Court has noted, however, even
though it has never imposed an “informed and knowing” requirement on a defendant’s decision not
to introduce mitigating evidence, it assumed without deciding that such a requirement existed. Schiro
v. Landrigan, 550 U.S. 465, 479 (2007). See also Clark v. Thaler, 673 F.3d 410, 422 (5th Cir. 2012),
cert. denied, 133 S.Ct. 179 (2012).
In the present case, Beatty was clearly informed about his right to present mitigating evidence.
The possible mitigating evidence was reviewed in the ex parte hearing before the trial court. He then
advised the trial court that he did not want to testify and that he did not want his possible mitigating
witnesses to testify. His decision to forego presenting mitigating evidence was informed and knowing.
Moreover, leading up to the trial, he thwarted his attorneys’ efforts to develop and present mitigating
evidence. Consequently, he may not now claim that his attorneys were ineffective for following his
instructions and failing to present mitigating evidence.
Alternatively, Beatty has not satisfied his duty of showing prejudice. The trial attorneys
explained that they would not have presented any evidence that was double-edged. They would not
have presented evidence that was more aggravating than mitigating. The state court found that the
evidence that could have been offered by the Days was substantially more aggravating than mitigating.
Indeed, both Day children testified that they could not think of one good thing to say about Beatty
other than the one incident where he intervened. Beatty has not shown that the decision was
unreasonable. Wilkerson’s potential testimony was likewise problematic. The state court found that
Wilkerson was a biased witness, who may let her relationship with Beatty taint her testimony to paint
him in a better light. Once again, Beatty has not shown that the finding as to why she would not have
been called as a witness was unreasonable. With respect to Twyla Johnson, the state court found that
Beatty came over to her house with a turkey after he killed his mother and ate Thanksgiving dinner
with her family and friends, and that she did not know at the time that he had buried the victim in the
backyard of her house the day before. The finding presumably also stood for the proposition that the
evidence was more aggravating than mitigating and would not have been offered.
20
By comparison, the aggravating evidence presented at trial was overwhelming. In addition to
the evidence of the murder, the State presented evidence regarding Beatty’s extensive criminal history,
including drug possession, theft, weapons possession, a brutal assault against a child under two years
of age, and prior assaults against his mother, a correctional officer and others. A correctional officer
testified about the prevalence of violence in prison and specifically discussed Beatty’s membership in
a prison gang, a physical altercation he had with Beatty, and a shank that was found on Beatty. Royce
Smith, an investigator, testified about the potential for inmate violence in prison. Dr. Tynus McNeel
and Dr. Edward Gripon testified that Beatty would likely pose a future danger to society. Beatty has
not substantially shown that a different result would have occurred if the mitigating evidence he
presented during the habeas evidentiary hearing had been presented during the punishment phase of
the trial.
Beatty argued in both his petition and in his response that the Supreme Court in Wiggins
warned against making “ad hoc” rationalizations of prior performance. In Wiggins, the Supreme Court
actually warned against making “post hoc” rationalizations:
When viewed in this light, the “strategic decision” the state courts and respondents all invoke
to justify counsel’s limited pursuit of mitigating evidence resembles more a post hoc
rationalization of counsel’s conduct than an accurate description of their deliberations prior to
sentencing.
539 U.S. 526-27. See also Harrington, 131 S.Ct. at 788. Despite criticizing the use of post hoc
rationalizations of counsel’s actions, the Supreme Court has found that the Strickland standard in
analyzing the prejudice prong “necessarily requires a court to ‘speculate’ as to the effect of the new
evidence - regardless of how much or how little mitigation evidence was presented during the initial
penalty phase.” Sears v. Upton, 130 S.Ct. at 3266-67. A court must assess the probability of a
different outcome by considering the totality of the available mitigation evidence - both that adduced
at trial and the evidence adduced in the habeas proceeding - and reweighing it against the evidence in
aggravation. Id. at 3266. As such, the impact of the possible mitigation evidence presented during the
state habeas hearing in the present case must be analyzed and reweighed against the evidence in
aggravation. The state trial court weighed the potential mitigating evidence and found that it lacked
21
much weight. Due to the overwhelming nature of the aggravating evidence, there is no reasonable
probability that, had the jury heard the evidence from the witnesses presented by Beatty during the writ
evidentiary hearing, including the Days, Twyla Johnson and Leanne Wilkerson, it would not have
imposed the death penalty. The state court found that Beatty was represented by effective assistance
of counsel, which implies that there was a finding that Beatty did not demonstrate prejudice, although
that terminology was not specifically used. The state court’s determination that Beatty did not
demonstrate prejudice was well within the bounds of AEDPA reasonableness. At best, Beatty can only
demonstrate that fairminded jurists could disagree on the correctness of the state court’s decision, but
federal habeas relief is precluded because he failed to show that all reasonable jurists would disagree
with the state court’s conclusion that Beatty was not prejudiced by counsel’s representation. He thus
failed to satisfy the second prong in the Strickland analysis.
B.
Ineffective Assistance of Counsel Regarding Failure to Show the Killing was Murder
Rather than Capital Murder
Beatty argued in his second ground for relief that his attorneys were ineffective for failing to
properly investigate facts that would have shown that the killing in this cases was murder, as opposed
to capital murder. He noted that the State contended that this case was a murder in the course of a
burglary or a robbery, which elevated the murder case to a capital case. Beatty argued that Texas law
recognized the importance for a jury to understand the dynamics between the parties in a homicide
case. Although there was some evidence admitted at trial showing the relationship between the parties,
it was the unbending contention of the State that the decedent was a kind, weak, disabled, loving
woman and Beatty must have killed her for the purpose of obtaining property or burglarizing her home.
Beatty argued that although the evidence amply demonstrated during the writ hearing that she could
be a kind, good natured woman, she had another side. The other side described by Ms. Wilkerson was
that she was a “mean cold hearted bitch,” who initiated fights with her son and knew how to push
buttons. Beatty stressed that the witnesses who testified to Click’s other side were known to trial
counsel. They were Click’s neighbors, who were included on the State’s witness list. It was noted that
Roy Linn spoke to Wilkerson but did not ask any questions regarding the decedent’s character and
22
nature. Beatty argued that Perkins recognized the strategy of “dirtying up the decedent,” so any post
trial rationalization that had he even known of this testimony he would not have offered it is an ad hoc
rationalization at best.
Beatty argued that the failure to investigate and discover this crucial
information constituted ineffective assistance of counsel.
The Director responded to the ground for relief by arguing that the claim was not brought on
either direct appeal or in state collateral review. He argued that it is clear that Beatty failed to exhaust
his state court remedies with regard to the claim. Moreover, it is equally clear that Beatty would be
barred from raising the claim in a successive state habeas application under Article 11.071 § 5(a) of
the Texas Code of Criminal Procedure. Balentine v. Thaler, 626 F.3d 842, 857 (5th Cir. 2010). The
Director argued that relief should be denied on the second ground for relief as unexhausted and
procedurally barred.
Beatty conceded in his response that he did not include the exact claim in his original state
application for a writ of habeas corpus. He asserted that the importance of this testimony was not
evident until the writ hearing. He argued that although this issue was not included in his state
application for a writ of habeas corpus, the issue was litigated, evidence was adduced at the writ
hearing and at the conclusion of the state proceedings when he filed his proposed findings of fact and
conclusions of law. He argued that the issue was fairly presented in state court and thus the issue has
been exhausted in state court and that there is no procedural bar pursuant to 28 U.S.C. § 2254
(B)(1)(A).
State prisoners bringing petitions for a writ of habeas corpus are required to exhaust state
remedies before proceeding in federal court unless “there is an absence of available State corrective
process” or “circumstances exist that render such process ineffective. 28 U.S.C. § 2254(b)(1). In
order to exhaust properly, a state prisoner must “fairly present” all of his claims to the state court.
Picard v. Connor, 404 U.S. 270 (1981). This means that a petitioner must have informed the state
court system of the same facts and legal theories upon which he bases his assertions in his federal
habeas petition. Id. at 276-77; Dispensa v. Lynaugh, 847 F.2d 211, 217-18 (5th Cir. 1988). “The
exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly
23
presented to the highest state court.” Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (internal
quotation marks and citations omitted). “It is not enough that all the facts necessary to support the
federal claim were before the state courts . . . or that a somewhat similar state-law claim was made.”
Anderson v. Harless, 459 U.S. 4 (1982); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001).
Rather, the petitioner must have presented the substance of his federal constitutional claim to the state
courts. Id.; Picard, 404 U.S. at 513. The state court must have been apprised of all of the facts and
legal theories upon which the petitioner bases his assertions. Picard v. Connor, supra; Dispensa v.
Lynaugh, 847 F.2d at 217; Rodriguez v. McKaskle, 724 F.2d 463 (5th Cir.), cert. denied, 469 U.S.
1039 (1984). Where a petitioner makes the same legal claim to a federal court which he presented to
the state courts, but supports that claim with factual allegations which he did not make to the state
courts, he has failed to satisfy the exhaustion requirement. Rodriguez, supra; Burns v. Estelle, 695
F.2d 847, 849 (5th Cir. 1983). In Texas, all claims must be presented to and ruled on by the Texas
Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985); Deters v. Collins,
985 F.2d 789 (5th Cir. 1993).
When a petition includes claims that have been exhausted along with claims that have not been
exhausted, it is called a “mixed petition,” and historically federal courts in Texas have dismissed the
entire petition for failure to exhaust. Galtieri v. Wainwright, 582 F.2d 348, 355 (5th Cir. 1978) (en
banc). In recent years, however, unexhausted claims in a mixed petition have been dismissed as
procedurally barred. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 515 U.S. 1153
(1995). See also Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Such unexhausted claims
would be procedurally barred because if a petitioner attempted to exhaust them in state court they
would be barred by Texas abuse-of-the-writ rules. Fearance, 56 F.3d at 642. The Fifth Circuit has
held that the procedural bar contained in Tex. Code Crim. Proc. Ann art. 11.071 § 5 is an adequate
state ground for finding procedural bars in light of decisions by the Texas Court of Criminal Appeals.
Ibarra v. Thaler, 691 F.3d 677, 684 (5th Cir. 2012); Balentine v. Thaler, 626 F.3d 842, 857 (5th Cir.
2010). The procedural bar may be overcome by demonstrating either cause and prejudice for the
24
default or that a fundamental miscarriage of justice would result from the court’s refusal to consider
the claim. Fearance, 56 F.3d at 642 (citing Coleman v. Thompson, 501 U.S. 722, 750-51 (1991)).
In the present case, Beatty acknowledged that he did not include a ground for relief in his state
application that his attorneys were ineffective for failing to properly investigate facts that would have
shown that the killing in this case was murder, as opposed to capital murder. He, nonetheless, argued
that the issue was exhausted because it was litigated, evidence was adduced at the writ hearing and at
the conclusion of the state proceedings when he filed his proposed findings of fact and conclusions of
law. It is again noted that “[i]t is not enough that all the facts necessary to support the federal claim
were before the state courts . . . or that a somewhat similar state-law claim was made.” Anderson v.
Harless, 459 U.S. 4 (1982); Wilder v. Cockrell, 274 F.3d at 259. The Fifth Circuit has held that
testimony discussing ineffective assistance of counsel during a writ evidentiary hearing, without more,
does not satisfy the exhaustion requirement. Bagwell v. Dretke, 372 F.3d 748, 756 (5th Cir. 2004).
Furthermore, another factor in Bagwell as to why the Fifth Circuit found that he had not exhausted his
state remedies was the fact that he never sought to amend his state application to include such a claim.
Id. at 755. Beatty likewise never sought to amend his state application to add the claim. In Bagwell,
the Fifth Circuit noted that the petitioner did not set forth the claim in his proposed factual findings
and conclusions of law. Id. In the present case, Beatty’s proposed findings of fact and conclusions
of law mentioned evidence that possibly could have resulted in a conviction for murder as opposed to
capital murder, but he did not couch his proposed conclusions of law about this issue in terms of an
ineffective assistance of counsel claim. Finally, the original application included ten grounds for relief.
The ten grounds were listed by the State in the answer. CR at 100. The decision by the Texas Court
of Criminal Appeals noted that Beatty “presents ten allegations.” Ex parte Beatty, 2009 WL 1272550
at *1. There is no indication anywhere that the present issue was considered or ruled on by the Texas
Court of Criminal Appeals. Overall, the court finds that Beatty did not fairly present the claim to the
Texas Court of Criminal Appeals, thus he did not exhaust the issue. Beatty did not attempt to
demonstrate either cause and prejudice for the default or that a fundamental miscarriage of justice
would result from the court’s refusal to consider the claim, thus the claim is procedurally barred.
25
Assuming arguendo that this specific ineffective assistance of counsel claim is not procedurally
barred, Beatty still has not shown that he is entitled to relief on the claim. The Director appropriately
noted that Beatty failed to offer much additional evidence that counsel could have introduced at trial
which would have explained his motive for murdering his mother, beyond the testimony already heard.
Neither his step-family, nor Ms. Johnson, nor Ms. Wilkerson, nor anyone else was present during the
last moments of Click’s life. Even though the jury did not hear directly from Beatty, the jury heard
Beatty’s various versions of events that he told to others. Following his arrest, he confessed that he
snapped during an argument with his mother and “killed the bitch.” Supp. CR at 67. In another
version, he told trial witness Clary that he choked his mother in self-defense. Id. Ms. Wilkerson
testified that Beatty told her that he killed his mother in an argument. Id. at 66. Beatty told a police
investigator that his mother started the altercation by slapping him for coming home drunk. Id. at 68.
Counsel’s representation cannot be characterized as deficient for failing to present to the jury minimal
additional statements that his mother was a mean cold-hearted bitch and could “push your buttons.”
Beatty likewise failed to show prejudice. The thrust of the claim is Beatty’s argument that the
additional evidence could have resulted in a murder conviction, as opposed to a capital murder
conviction. He did not show, however, that the additional evidence would have made any difference.
Furthermore, the issue of whether there was sufficient evidence to raise the case from murder to capital
murder was fully discussed on direct appeal, and the Texas Court of Criminal Appeals found that the
evidence was sufficient. Beatty v. State, 2009 WL 619191 at *4-5. Beatty has not shown that this
cumulative evidence would have made any difference in getting him a murder conviction, as opposed
to a capital murder conviction. The second ground for relief is unexhausted and procedurally barred
and lacking in merit.
This ineffective assistance of counsel claim should also be analyzed in light of the Supreme
Court’s recent decision in Trevino v. Thaler, 133 S.Ct. 1911 (2013). Trevino concerned the application
of the cause and prejudice exception to a procedural default, as discussed in Coleman v. Thompson.
In Trevino, the Supreme Court held that “a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral
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proceeding, there was no counsel or counsel in that proceeding was ineffective.” 133 S.Ct. at 1921
(citing Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012)). The Court found that this rule applies to
Texas. Id. In this case, however, as was previously shown, the second ineffective assistance of trial
counsel claim lacks merit. For purposes of the exception stated in Trevino, Beatty has not shown a
substantial claim of ineffective assistance of trial counsel. The exception to the procedural default
doctrine does not apply, and the second ground for relief is procedurally barred. There is nothing else
pending before the court that arguably supports relief based on Trevino.
In conclusion, Beatty has not shown that he is entitled to federal habeas corpus relief. The
petition for a writ of habeas corpus should be denied.
V. 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 Beatty 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.” Id.; Henry v.
Cockrell, 327 F.3d 429, 431 (5th Cir. 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
27
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 Beatty’s § 2254 petition on
substantive or procedural grounds, nor 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 Beatty is not entitled to a certificate of appealability as to
his claims. It is accordingly
ORDERED that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice. It is further
ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled on are DENIED.
.
SIGNED this the 16th day of July, 2013.
_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE
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