Chanthakoummane v. Director TDCJ-CID
Filing
34
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 Leonard Davis on 3/20/2015. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
KOSOUL CHANTHAKOUMMANE,
Petitioner,
VS.
DIRECTOR, TDCJ-CID,
Respondent.
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CIVIL ACTION NO. 4:13cv67
MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Petitioner Kosoul Chanthakoummane, an inmate confined in the Texas prison system, filed the
above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is challenging his capital murder conviction and death sentence imposed by the 380th
Judicial District Court of Collin County, Texas in Cause Number 380-81972-07, in a case styled The
State of Texas v. Kosoul Chanthakoummane. For reasons set forth below, the Court finds that the
petition is not well-taken and that it will be denied.
Procedural History of the Case
On October 17, 2007, Petitioner was convicted of the offense of capital murder for stabbing
and killing Sarah Walker in the course of committing the offense of robbery, in violation of Tex. Penal
Code § 19.03(a). The Texas Court of Criminal Appeals (“TCCA”) affirmed the conviction and death
sentence. Chanthakoummane v. State, No. AP-75,794, 2010 WL 1696789 (Tex. Crim. App. April 28,
1
2010) (unpublished). The Supreme Court denied his petition for a writ of certiorari.
Chanthakoummane v. Texas, 131 S. Ct. 506 (2010).
Petitioner filed an application for a writ of habeas corpus in state court on April 5, 2010. An
evidentiary hearing was conducted on November 10, 2010. The state trial court issued thorough
findings of fact and conclusions of law on September 20, 2012. The TCCA subsequently denied relief
based on the trial court’s findings and conclusions and on its own review.
Ex parte
Chanthakoummane, No. WR-78,107-01, 2013 WL 363124 (Tex. Crim. App. Jan. 30, 2013)
(unpublished).
Petitioner began the present proceedings on February 5, 2013. He filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 on January 26, 2014 (docket entry #15). The Director
filed an answer on July 28, 2014 (docket entry #31). No reply was filed.
Factual Background of the Case
The TCCA thoroughly discussed the factual background of the case as follows:
On Saturday, July 8, 2006, real estate agent Sarah Walker was murdered in the D.R.
Horton model home where she worked in the “Craig Ranch” subdivision in McKinney, Texas.
[Petitioner] was charged with intentionally and knowingly causing Walker's death while in the
course of committing or attempting to commit robbery.
On the morning of July 8, Walker's ex-husband, Randy Tate, went to Walker's
residence in Frisco, Texas. Walker planned to work at the model home that day, so Tate picked
up their son early that morning. While Tate was at Walker's residence, Walker showed him a
new Rolex watch that she said she had purchased the previous day. Later that morning, Walker
went to a Bank of America in Frisco. Still photographs taken from the bank surveillance video
showed Walker wearing a watch and a ring at around 11:45 a.m. Walker's cousin, Jessica
Allen, testified that Walker often wore ornate rings and a Tag Heuer watch that she had owned
for several years.
Another real estate agent, Mamie Sharpless, received a phone call at 9:40 a.m. that
morning from a man who identified himself as “Chan Lee.” The man told Sharpless that he
found her phone number in a Keller Williams advertisement and that he wanted to look at a
town house she had listed in the Craig Ranch subdivision. He said that he had just moved from
North Carolina to the Dallas area, that he had graduated from the University of North Carolina
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at Charlotte, and that he worked for Texas Instruments. He said that he was calling from a
phone booth at the 7–Eleven at Midway and Park and that he was staying in Room 245 at the
“InTown Suites.” When Sharpless asked him for a contact number, he said that he did not have
a cell phone. The phone “cut off” before their conversation ended, so Sharpless tried to reach
him by calling his hotel. Sharpless testified that she “called two InTown Suites, and one didn't
have a [Room] 245, the other one did, but it just had a recording on it.”
Sharpless arrived to show the town house between 11:30 a.m. and noon, and she
brought her husband, Nelson Villavicencio, with her. As they sat in their car and waited, they
saw a man drive by in a white Ford Mustang and park across from a D.R. Horton model home
down the street. They observed the man getting out of the Mustang and starting to cross the
street. They drove over to the man and asked him if he was “Chan Lee,” and he replied, “No.”
Sharpless described him as a muscular man of Asian descent, about 5' 4" or 5' 5" tall, with a
“buzz cut.” She made an in-court identification of [Petitioner] as the man she saw that day, but
explained that he was thinner with longer hair at the time of trial.
As Sharpless and Villavicencio drove away, they noticed that the Mustang had Texas
license plates. When Villavicencio drove to the end of the block, turned around, and drove
back, the Mustang was no longer there. He then drove back to the town house so Sharpless
could show it to another potential buyer. As Villavicencio looked out the bedroom window
while Sharpless showed the town house, he observed Walker arrive in her Porsche Boxster.
Walker parked her car across the street from the D.R. Horton model home and went inside. At
that point, Villavicencio also saw a white Mustang parked on the street in front of the model
home. Sharpless then finished showing the town house and they left between 12:30 and 1:00
p.m. As they left the subdivision, Sharpless also noticed a white Mustang parked in front of
the model home.
At about 12:30 p.m., Walker called her cousin, Jessica Allen. Allen testified that
Walker was “in a really good mood” during their brief telephone conversation. They talked for
about 15 minutes, then Walker “said someone had walked in and she'd call [Allen] back.”
At approximately 1:10 p.m., Andy Lilliston and his wife came to look at the D.R.
Horton model home. When they entered the model home, Lilliston thought that it appeared to
have been “ransacked.” He observed a large pool of blood in the dining room, where the sales
desk was located. He followed a trail of blood into the kitchen, where he saw Walker lying
face-up on the floor, with the upper half of her body covered in blood. Lilliston directed his
wife to call 9–1–1, and they exited the model home. Lilliston ran into the street and flagged
down a vehicle for help. He briefly went back inside the model home to check on Walker, but
she did not display any signs of life. Lilliston then went back outside and waited for emergency
personnel to arrive.
When Texas Ranger A.P. Davidson arrived at the model home, he noticed signs of a
struggle in the dining room. The desk was crooked, the desk chair was out of place, a plant
stand was knocked over, and a potted plant was on the floor. A pair of women's shoes, a
broken hair clip, and a broken earring were also on the floor. There was a trail of blood leading
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from the dining room into the kitchen. Walker's body was on the kitchen floor, and it appeared
that she had multiple stab wounds. Davidson opined that Walker had been dragged by her feet
from the dining room to the kitchen because the long skirt she was wearing was rolled up to
her waistline.
McKinney police officer Pete Copin discovered a bloody fingerprint on the deadbolt
lock on the front door of the model home; however, he testified that there were “not enough
individual characteristics for a positive identification.” Copin further observed what appeared
to be blood on the plant stand, on the ceramic tile in the entryway, on the wall next to the edge
of the window beside the front door, and on the pull cord for the window blinds. It also
appeared that there had been blood in the kitchen sink that had been washed or diluted with
water. Copin collected blood swabs and other evidence from the scene for further testing.
When Walker's body was discovered, she was no longer wearing the watch and ring
that she had been shown wearing earlier on the bank surveillance video. When the police
searched Walker's residence after her death, they found her Tag Heuer watch. The police never
located her Rolex watch, but they did find the box and the receipt for the Rolex watch in her
residence.
William Rohr, the Collin County Medical Examiner who performed Walker's autopsy,
testified that Walker sustained several blunt force injuries to her head. He opined that the blunt
force injuries were the result of “several blows,” and that they were consistent with Walker
being struck in the face and head with the plant stand in the model home. Walker had multiple
bruises on her face and head, a broken nose, and fractured teeth. She had some defensive
wounds, including an excised wound on her left arm and a broken fingernail on her right hand.
She suffered a total of 33 stab wounds, 10 of which penetrated vital organs and blood vessels.
Rohr testified that any one of those 10 wounds could have been “pretty much immediately
fatal.” Walker also had a bite mark on the back of her neck that Rohr opined was inflicted “at
or near her death.” Rohr testified that he preserved this evidence by using a scalpel to excise
the bite mark and surrounding area.
DNA analysis linked [Petitioner] to evidence from the crime scene. [Petitioner’s] DNA
profile was consistent with the DNA obtained from Walker's fingernails, the window blind pull
cords, the deadbolt lock and faceplate, and some of the swabs taken from the living room,
kitchen, and entryway of the model home. The DNA analyst testified that only a “partial
profile” was obtained from a swab taken from the kitchen sink because the DNA extracted
from that swab “was of low quality and degraded quality.” However, the set of genetic markers
that she was able to detect in the partial profile “corresponded with the genetic markers
observed in the DNA profile of [Petitioner].”
After receiving the results of the DNA analysis, police arrested [Petitioner] at his
apartment on September 5, 2006. Texas Ranger Davidson testified that [Petitioner] owned a
white Ford Mustang and that his apartment was located three miles away from the pay phones
at Midway and Park. Davidson spoke to [Petitioner’s] sister, who informed him that
[Petitioner] had attended school in North Carolina and that he had moved from Charlotte to
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Dallas in February 2006. Davidson determined that [Petitioner] had filled out a lease
application at an apartment complex near the InTown Suites on Trinity Mills. Davidson also
discovered that [Petitioner’s] bank account was overdrawn by $82.27 on the day before
Walker's murder. Davidson testified that [Petitioner] was muscular and had a shaved head at
the time of his arrest. Officer Copin, who later photographed [Petitioner] to document his
appearance, testified that he observed what appeared to be some healed cuts or scratches on
[Petitioner’s] hands and fingers.
[Petitioner] was transported to the McKinney Police Department, where he was
interviewed by Officer Randall Norton. [Petitioner] at first denied ever being in McKinney in
his white Mustang. Upon further questioning, he stated that his car had broken down at “a
model house,” that he knocked on the door but no one answered, that he took “like three or
four steps” inside and asked if anyone was home but no one was there, and that he spoke to a
man and a woman in a green or blue “Corolla or Camry” as he left. Next, he admitted that he
went to the kitchen sink for a drink of water, but said that he “didn't know how to use the
faucet because the hot water came out,” so he left. He acknowledged that he had “old cuts” on
his hands “from work,” so it was possible that he could have been bleeding when he was inside
the model home. He also acknowledged that he had sold some of his own property for cash at
a pawn shop on Greenville Avenue, including a tape deck, a drill, and an inexpensive Kenneth
Cole watch.
Forensic dentistry consultant Brent Hutson examined [Petitioner] and made
impressions of his teeth. Hutson compared [Petitioner’s] teeth to the bite mark on Walker's
neck and found enough similarities that he was “unable to exclude [Petitioner] from that
population of individuals that could have inflicted this injury.” Hutson concluded “within
reasonable dental certainty beyond a doubt” that [Petitioner] was responsible for the bite mark
on Walker's neck.
Chanthakoummane, 2010 WL 1696789, at *1-4.
Grounds for Relief
Petitioner brings the following grounds for relief:
1.
Trial counsel was ineffective for failing to sufficiently investigate, develop and present
significant mitigating evidence in violation of Petitioner’s Sixth Amendment right to
counsel and the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
2.
By conceding guilt as to the issue of whether a robbery occurred in this case, trial
counsel rendered ineffective assistance of counsel in violation of Petitioner’s Sixth
Amendment right to counsel and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.
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3.
Petitioner’s due process rights under the Fourteenth Amendment and his Sixth
Amendment right to an impartial jury were violated when a juror committed
misconduct by discussing the case with his spouse.
4.
A juror’s improper consideration of Petitioner’s failure to testify at trial violated his
Fifth, Sixth and Fourteenth Amendment rights.
5.
Petitioner’s appellate counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to
challenge the admissibility of the State’s gang affiliation witness.
6.
Petitioner’s appellate counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to
challenge the sufficiency of the evidence regarding Petitioner’s future dangerousness.
7.
Petitioner’s appellate counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to
challenge the admissibility of A. P. Merillat’s testimony.
8.
Petitioner’s appellate counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to
challenge the denial of Petitioner’s motion to suppress his statement.
9.
Petitioner’s trial counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to lodge
a specific objection to the voluntariness of his Miranda waiver during the suppression
hearing.
10.
The refusal of the Texas courts to properly define the terms and phrases in the future
dangerousness special issue was a decision contrary to, and an unreasonable
application of clearly established constitutional law in that Petitioner was: (1) deemed
eligible for the imposition of death as a penalty by the use of an unconstitutionally
vague aggravator; and (2) Petitioner was selected for the death penalty without giving
full consideration and effect to record evidence of his mitigating circumstances.
11.
Petitioner’s appellate counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to brief
the unconstitutionality of the Texas death penalty scheme because it is based upon
vague statutory terms and does not properly channel the jury’s discretion.
12.
The trial court violated the Eighth and Fourteenth Amendments to the United States
Constitution by failing to instruct the jury that a “No” vote by a single jury member
would result in a Life sentence instead of a death sentence despite the statutory
requirement of ten votes for a “No” answer to Article 37.071 § 2(b)(1) or for a “Yes”
vote to Article 37.071 § 2(e).
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13.
Petitioner’s appellate counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to brief
the “10-12" Texas death penalty scheme.
14.
The Texas capital punishment scheme violates the Eighth and Fourteenth Amendments
to the United States Constitution because the mitigation special issue does not allocate
a burden of proof.
15.
Petitioner’s appellate counsel rendered ineffective assistance of counsel contrary to the
Sixth and Fourteenth Amendments to the United States Constitution by failing to brief
that the Texas death penalty scheme does not allocate a burden of proof for mitigation
special issues.
16.
The trial court’s grossly impartial comments to the assembled jury venire praising the
prosecution subjected Petitioner to cruel and unusual punishment and a deprivation of
his rights to a fair trial, the presumption of innocence, and the effective assistance of
counsel in violation of the Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.
Standard of Review
The petition was filed in 2014, thus review is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a
petitioner who is in custody “pursuant to the judgment of a State court” is not entitled to federal habeas
corpus relief with respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1)
resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the United
States; or
(2)
resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceedings.
28 U.S.C. § 2254(d). “By its terms § 2254 bars relitigation of any claim ‘adjudicated on the merits’
in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562
U.S. 86, ___, 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
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doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (citation and internal quotation marks omitted).
With respect to the first provision, a “state court decision is ‘contrary to’ clearly established federal
law if (1) the state court ‘applies a rule that contradicts the governing law’ announced in Supreme
Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of
materially indistinguishable facts.” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en
banc) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)), cert. denied, 551 U.S. 1141 (2007).
“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.” Cullen v. Pinholster, 563 U.S. ___, ___, 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), cert. denied, 133 S. Ct.
105 (2012). With respect to § 2254(d)(2), a Texas court’s factual findings are presumed to be sound
unless a petitioner rebuts the “presumption of correctness by clear and convincing evidence.” MillerEl 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). More
recently, the Supreme Court held that a “state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Richter, 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 state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Federal habeas corpus relief is
not available just because a state court decision may have been incorrect; instead, a petitioner must
show that a state court decision was unreasonable. Id. at 694. Furthermore, when a state court
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provides alternative reasons for denying relief, a federal court may not grant relief “unless each ground
supporting the state court decision is examined and found to be unreasonable under AEDPA.” Wetzel
v. Lambert, 565 U.S. ___, ___, 132 S. Ct. 1195, 1199 (2012) (emphasis in original).
Discussion and Analysis
Claim Number 1:
Trial counsel was ineffective for failing to sufficiently investigate,
develop and present significant mitigating evidence in violation of Petitioner’s Sixth
Amendment right to counsel and the Due Process Clause of the Fourteenth Amendment
to the United States Constitution.
Petitioner initially presents a lengthy claim, including four sub-claims, regarding the efforts of
his counsel to present mitigating evidence on his behalf during the punishment phase of the trial.
Petitioner argues that he is entitled to federal habeas corpus relief because his attorney was ineffective
for failing to sufficiently investigate, develop and present significant mitigating evidence. He
acknowledged that counsel hired a mitigation specialist, but he asserted that the specialist did nothing
more than compile a collection of juvenile delinquency and adult prison records. He acknowledged
that the mitigation specialist contacted some of his family members, but he characterized the interviews
as too brief and cursory to produce any meaningful mitigation evidence.
Petitioner listed the following four sub-claims in support of his claim that counsel failed to
sufficiently investigate, develop and present significant mitigating evidence:
1.
North Carolina Department of Social Services records documenting his dysfunctional
family life and history of abuse;
2.
School records establishing his hearing impairment and the impact it had upon his
childhood development;
3.
The cultural impact his Laotian immigration story had upon his upbringing; and
4.
The failure of counsel to call any of his family members during his punishment trial.
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The Director argues that Petitioner’s claim lacks merit and that the state court’s rejection of the claim
was reasonable.
Petitioner’s ineffective assistance of claims are governed by the Supreme Court’s decision in
Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides a two-pronged standard, and a
petitioner bears the burden of proving both prongs. 466 U.S. at 687. Under the first prong, the
petitioner must show that counsel’s performance was deficient.
Id.
To establish deficient
performance, he must show that “counsel’s representation fell below an objective standard of
reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel
rendered assistance. Id. at 688. “Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair
assessment of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, . . .” Id. at 689 (citations omitted). “Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide
range of professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation
marks omitted). Under the second prong, the petitioner must show that his attorney’s deficient
performance resulted in prejudice. Id. at 687. To satisfy the prejudice prong, the habeas petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694. An ineffective assistance of counsel claim fails
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if a petitioner cannot satisfy either the deficient performance or prejudice prong; a court need not
evaluate both if he makes an insufficient showing as to either. Id. at 697.
The Supreme Court recently discussed the difficulties associated with proving ineffective
assistance of counsel claims as follows:
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim
can function as a way to escape rules of waiver and forfeiture and raise issues not presented
at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is
meant to serve. Strickland, 466 U.S., at 689–690, 104 S. Ct. 2052. Even under de novo
review, the standard for judging counsel's representation is a most deferential one. Unlike a
later reviewing court, the attorney observed the relevant proceedings, knew of materials outside
the record, and interacted with the client, with opposing counsel, and with the judge. It is “all
too tempting” to “second-guess counsel's assistance after conviction or adverse sentence.” Id.,
at 689, 104 S. Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L.Ed.2d
914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L.Ed.2d 180 (1993).
The question is whether an attorney's representation amounted to incompetence under
“prevailing professional norms,” not whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
Richter, 131 S. Ct. at 788. In a separate opinion issued on the same day, the Court reiterated that the
“question is whether an attorney’s representation amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from the best practices or most common custom.” Premo
v. Moore, 562 U.S. 115, ___, 131 S. Ct. 733, 740 (2011) (citing Strickland, 466 U.S. at 690).
In the context of § 2254(d), the deferential standard that must be accorded to counsel’s
representation must also be considered in tandem with the deference that must be accorded to state
court decisions, which has been referred to as “doubly” deferential. Richter, 131 S. Ct. at 788. “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.), cert. denied, 134 S. Ct. 393 (2013).
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Petitioner specifically argues that his attorney was ineffective for failing to sufficiently
investigate, develop and present significant mitigating evidence. “[D]efense 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)), cert. denied, 537 U.S. 1104 (2003). See also Woods v.
Thaler, 399 F. App’x 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. 510, 527 (2003). See also Blanton v. Quarterman, 543 F.3d 230,
236 (5th Cir. 2008), cert. denied, 556 U.S. 1240 (2009). “[C]ounsel should consider presenting . . .
[the defendant’s] medical history, educational history, employment and training history, family and
social history, prior adult and juvenile correctional experience, and religious and cultural influences.”
Wiggins, 539 U.S. 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 stressed in Wiggins that the
“investigation into mitigating evidence should comprise efforts to discover all reasonably available
mitigating evidence.” Id. (emphasis in original).
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
12
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.
Id. 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) (emphasis in original). See also Rompilla v. Beard, 545
U.S. 374, 381-82 (2005) (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, a petitioner must
do more than merely allege a failure to investigate; instead, he must state with specificity what the
investigation would have revealed, what specific 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 his first sub-claim, Petitioner alleges that counsel was ineffective for failing to discover
North Carolina Department of Social Services (DSS) records documenting his dysfunctional life and
13
history of abuse. He asserted that if trial counsel had bothered to pull DSS records under his last name,
as opposed to simply searching records under his first name, counsel would have discovered a wealth
of mitigation information. He complained that instead of acknowledging the lapse, counsel placed the
blame on DSS for failing to suggest that they should dig deeper under his last name. He countered
counsel’s excuse by stressing that Pam Freeburn, a DSS employee, informed his “attorneys that there
was no record in Kosoul’s name. I also told them that there were several records with the last name
of Chanthakoummane and that Mr. Chanthakoummane’s record could be listed under a parent name.”
2 SHCR 334.1 The attorneys did not, however, ask her about other records under the name of
Chanthakoummane. Id.
The issue was fully developed during the state habeas corpus proceedings. Ms. Freeburn’s
affidavit was before the court. Affidavits were also submitted by lead counsel Steven R. Miears (5
SHCR 1413-36), co-counsel Keith Gore (5 SHCR 1394-1408) and mitigation specialist Vince
Gonzalez (5 SHCR 1144-1152). Miears affidavit included the following statement about DSS records:
To this end, Mr. Gore and I travelled to the central location of Social Services, and
their records, for the State of North Carolina. We had obtained and presented appropriate
releases authorizing and directing that records concerning Kosoul be delivered to us. We
identified the person we needed to interview concerning the existence, or non existence, of any
such records as Ms. Pam Freeburn, M.S.W. She identified herself as the Social Works
Supervisor for the Department of Social Services for Mecklenburg County located in Charlotte,
North Carolina. We advised her that our mission was to obtain social service records
concerning Kosoul, if they existed, in preparation for his upcoming trial on capital murder
charges.
Ms. Freeburn was interrogated by me as to whether that agency would have any
relevant records. I was assured by her that if they existed, she would be the right person to
search for them. She left our interview and we waited in an office. After a while she returned,
and advised us that she had conducted the search requested, and that there were absolutely no
records under Kosoul’s name. I specifically asked her to keep searching after we left, and to
1
“SHCR” refers to the state habeas clerk’s record preceded by the volume number and followed by
the page number.
14
check in any other data bases, and use whatever other resources existed to ascertain if any such
records existed. She assured me she would. I asked her to correspond with me, and to put in
writing the results of her search. She advised she would.
While we were still in North Carolina Mr. Gore received by fax to his office in
McKinney the correspondence attached hereto as exhibit 1. Ms. Freeburn stated in a letter
addressed to me dated August 1, 2007 that:
“At your request, I checked our Youth and Family Services data system and
found that our agency has no records listed under the name of Kosoul
Chanthakoummane. Just to confirm, I contacted our record room staff and they also
found this to be the case.”
A separate fax was also received which is attached hereto as exhibit 2 from Ms. Brenda
McCray. Ms. McCray was identified as an employee for the Youth and Family Services
Division. She stated to me in her letter that as to Kosoul Chanthakoummane:
“There are no records within the youth and Family Services Division on file
for the above mentioned claimant.”
These writings from both Ms. Freeburn and Ms. McCray convinced and assured me
that there was no further need to explore this particular area for mitigation evidence. To say
I was shocked to see that these records did indeed exist would be an understatement.
5 SHCR 1432-33. Counsel attached copies of the faxes that were received from Ms. Freeburn and Ms.
McCray. Co-Counsel Gore provided a similar statement in his affidavit. 5 SHCR 1399-1402.
Based on the application for a writ of habeas corpus, the State’s answer, the affidavits and other
official court records, the state habeas court issued the following findings regarding counsel’s efforts
to discover social services records:
50.
Counsel interviewed [Petitioner] and his family “extensively, repeatedly, and often”
regarding any history of child abuse or involvement with social services. [Petitioner]
and his relatives always denied any form of child abuse. [5 SHCR 1151 (Gonzalez
affidavit), 1397-98 (Gore affidavit), 1416, 1431 (Miears affidavit)].
51.
Counsel also investigated the potential of child abuse by visiting the Department of
Social Services in North Carolina and requesting any records for [Petitioner] or his
family. Counsel was informed in person and in writing that no records existed. [5
SHCR 1399-1401 (Gore affidavit), 1415, 1432-33 (Miears affidavit)].
15
52.
Social services records did exist under [Petitioner’s] sister Sopha’s name. These
records were discovered during the habeas investigation and attached to the writ
application. [4 SHCR 742-873]. The records indicated that:
a.
Social services first became involved with the family when Sopha ran away
and made an allegation of abuse, but the allegation was ruled
“unsubstantiated.” [Id. at 769, 773].
b.
A subsequent complaint involved [Petitioner] and inappropriate discipline,
including spanking with an electrical wire. This claim was substantiated. [Id.
at 764].
c.
[Petitioner’s] parents were cooperative with the investigation and engaged in
“discussions about safer, more appropriate forms of discipline.” After they
became aware of cultural differences in forms of discipline between Laos and
the United States, they stopped using physical discipline. [Id. at 754, 764].
d.
[Petitioner] had numerous discipline problems even after involvement from
social services, including stealing from his siblings, going out late at night
without permission, and kicking holes in the walls of the home. [Id. at 760].
5 SHCR 1519-20.
The state habeas court noted the competing affidavits presented by Pam Freeburn and trial
counsel and their investigator. 5 SHCR 1520. The court then made the following findings in light of
the competing affidavits:
57.
Freeburn’s version and Miears’s and Gore’s versions of the events are not reconcilable.
58.
Miears’s and Gore’s version of the events is consistent with the other evidence before
the Court of counsels’ extensive investigations of the case.
59.
Miears’s and Gore’s version of the events is consistent with the vigorous defense
exemplified in the trial record.
60.
Freeburn’s allegations regarding counsels’ investigation of [Petitioner’s] social
services background are not credible to the extent that they conflict with Miears’s and
Gore’s affidavits.
61.
Counsels’ inability to obtain social services records was through no fault of their own.
16
62.
Counsel reasonably determined that no further investigation into possible childhood
abuse was necessary. See Moore,2 194 F.3d at 616.
5 SHCR 1521.
After making the findings of fact, the state habeas court issued the conclusion of law that
counsels’ investigation was diligent and in keeping with local standards of appropriate investigation.
Id. The court concluded that counsels’ representation on this issue was not deficient. The TCCA
subsequently adopted the findings and conclusions in denying the application for a writ of habeas
corpus. Ex parte Chanthakoummane, 2013 WL 363124, at *1.
In his petition, Petitioner attempts to counter the state court findings of fact by focusing on
Freeburn’s affidavit in arguing that counsel did not engage in efforts to discover all reasonably
available mitigating evidence as it relates to the DSS records. The state court, however, considered
all of the evidence, including the competing affidavits, and reasonably found that counsel engaged in
an extensive investigation and that counsels’ inability to obtain social service records was through no
fault of their own. Petitioner has not satisfied his burden under § 2254(e)(1) of rebutting the
presumption of correctness that must be accorded to the state court factual findings with clear and
convincing evidence. See Miller-El, 545 U.S. at 240; Roberts v. Thaler, 681 F.3d 597, 604 (5th Cir.),
cert. denied, 133 S. Ct. 529 (2012).
The state habeas court went on to discuss the second prong in the ineffective assistance of
counsel analysis and concluded that Petitioner had not shown prejudice. The state habeas court’s
analysis overlaps with Petitioner’s fourth sub-claim that counsel failed to call any family members
during his punishment trial. The court issued the following findings:
2
Moore v. Johnson, 194 F.3d 586, 616 (5th Cir. 1999)
17
64.
Even had counsel been aware of the social services records, a decision not to call
Petitioner’s relatives would have been reasonable, and the result of the proceeding
would not have been different had counsel discovered the records:
a.
b.
Counsel also repeatedly assert elsewhere in their affidavits that they made a
strategic decision not to call [Petitioner’s] relatives to testify because of the
potentially harmful nature of their testimony, including introducing evidence
of gang involvement and the family’s opinions that [Petitioner] deserved the
death penalty. [5 SHCR 1404 (Gore affidavit), 1425-26, 1427, 1429 (Miears
affidavit)].
c.
The potential mitigation evidence was weak. Although there was some
evidence of childhood abuse, the records also reflected that the abuse was
minor, the parents were motivated by cultural differences rather than animus,
and the family underwent counseling and adopted more reasonable disciplinary
methods as soon as they were made aware of the cultural differences.
d.
The potential harm from the family’s testimony was severe. Testimony
regarding [Petitioner’s] criminal activities from a very young age, even before
his involvement in the juvenile justice system, and his association with gangs
would significantly undermine counsel’s strategy of attacking the future
dangerousness special issue.
e.
The testimony of [Petitioner’s] own family - most especially [Petitioner’s]
mother - that he deserved the death penalty would be highly prejudicial. It
would be difficult for even severely mitigating evidence to overcome such
prejudicial testimony.
f.
65.
Counsel assert in their affidavits that they would have presented evidence of
childhood abuse through the testimony of [Petitioner’s] relatives had they been
aware of the social services records. [5 SHCR 1395 (Gore affidavit), 1416,
1430, 1435 (Miears affidavit)].
Counsel’s assertion that the relatives would have been called to testify about
minor childhood abuse is not [ ] consistent with their identification of highly
prejudicial testimony the relatives would have provided.
Even had the social services evidence been presented, the result of the proceeding
would not have been different in light of the minimal mitigating value and strong
possibility of additional prejudicial testimony.
5 SHCR 1521-22. Once again, the TCCA adopted these findings in denying Petitioner’s application
for a writ of habeas corpus.
18
Petitioner provided only a limited challenge to the findings of the state habeas court. See
Petition at 31-32. He reiterated counsels’ assertion in their affidavits that they would have presented
evidence of childhood abuse if they had been aware of the social services records. He reiterated that
counsel concedes that “the information would have been vital to the adequate preparation of a
mitigation case.” 5 SHCR 1435. He went on to make the conclusory claim that it “is clear that
counsel’s deficient performance in following through and finding the DSS information would have
changed the outcome of the punishment trial as required under the second prong of Strickland. The
State’s failure to see how this deficient performance by counsel affected the outcome of this case is
therefore the result of an unreasonable application of Strickland to the facts of the case.” Petition at
32. However, Petitioner’s conclusory allegations and bald assertions of prejudice are insufficient to
support a petition for a writ of habeas corpus. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.),
cert. denied, 531 U.S. 849 (2000); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990); Ross v.
Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
The Director appropriately noted that the Supreme Court has emphasized “that the reviewing
court must consider all the evidence - the good and bad - when evaluating prejudice.” Wong v.
Belmontes, 558 U.S. 15, 26 (2009) (citing Strickland, 466 U.S. at 695-96). A showing of prejudice
in the context of mitigation requires a petitioner “to establish ‘a reasonable probability that a competent
attorney, aware of [the available mitigating evidence], would have introduced it at sentencing,’ and
‘that had the jury been confronted with this . . . mitigating evidence, there is a reasonable probability
that it would have returned a different sentence.’” Id. at 20 (citing Wiggins, 539 U.S. at 535, 536).
“[I]t is necessary to consider all relevant evidence that the jury would have had before it if [trial
counsel] had pursued a different path - not just the mitigation evidence [trial counsel] could have
19
presented, but also the [aggravating evidence] that almost certainly would have come with it.” Id.
(citing Strickland, 466 U.S. at 695-96) (emphasis in original).
In the present case, Petitioner goes no further than to assert that if counsel had followed
through and found the DSS information then the outcome of the punishment phase of the trial would
have been different. He did not weigh all the relevant evidence that the jury would have had before
it, both good and bad. The state habeas court, on the other hand, discussed all of the evidence, both
good and bad, in finding that the potential mitigation evidence was weak and that it was also highly
prejudicial. Petitioner has not shown prejudice in the manner required by the Supreme Court in
Strickland, Wiggins and Wong. He certainly failed to show that had the jury been confronted with this
mitigating evidence, then there is a reasonable probability that it would have returned a different
verdict. Furthermore, he has not shown, as required by 28 U.S.C. § 2254(d), that the state court
findings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States, or resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceedings. Petitioner’s first sub-claim on his first ineffective assistance of counsel
claim regarding the failure of counsel to discover the DSS records lacks merit.
In his second sub-claim, Petitioner alleges counsel was ineffective for failing to explore and
present mitigating evidence with respect to school records establishing his hearing impairment and the
impact it had upon his childhood development. Testing in kindergarten revealed that he had “a
moderate high frequency hearing loss bilaterally with normal hearing through 1500-2000Hz.” 2 SHCR
194. He acknowledged that counsel filed an affidavit during the course of the state habeas corpus
proceedings. He asserted, however, that counsel’s response shows that counsel was “fixated” upon
his ability to hear during the pendency of the death penalty case and not upon how this impairment
20
during his childhood had a mitigation value. Petition at 39. He also complained that counsel passes
the blame for failing to discover records of his impairment upon the State of North Carolina.
This issue was fully developed during the state habeas corpus proceedings. Counsel Miears
noted that Petitioner was examined by experts and that “none of these experts who examined
[Petitioner] related that he had any hearing defects or impairments.” 5 SHCR 1418. He went on
discuss this issue further as follows:
In interviews with [Petitioner] he revealed that he did have an incident at a young age
when a bug was removed from his ear that relieved an inability to hear some things. While this
seemed an interesting story to me, at the time it did not seem to have any relevance for
mitigation. Nor did it seem to relate to any hearing impairment as a child since he did not
connect the event to any hearing loss. [Petitioner] did not appear to me, or anyone else
involved in his defense, to have any difficulty with hearing. He could always hear what was
discussed with him, and he replied appropriately.
Furthermore, none of the experts who interviewed or examined him ever related any
difficulty experienced by him with hearing. He simply never indicated any hearing problems
ever existed. If I had ever suspected any problems [Petitioner] had with hearing, I would have
had this issue explored and examined. From the information presented in his writ, I did not
see any information that he currently has any hearing loss, or had any hearing loss at the time
of his trial.
Id. at 1418-19. Miears noted that Gonzales, his mitigation specialist, obtained school records, and he
did not recall learning about any hearing impairment experienced by Petitioner. Id. at 1419. Gonzales
stated in his affidavit that family members informed him that Petitioner started experiencing hearing
problems at approximately age eight. Id. at 1148. He added that he, in fact, requested and received
school records, which do not match the records obtained by Petitioner’s habeas counsel. Id. at 1151.
Based on the application for a writ of habeas corpus, the State’s answer, the affidavits and other
official court records, the state habeas court issued the following findings regarding counsel’s efforts
to investigate, develop and present the impact of Petitioner’s hearing impairment:
44.
[Petitioner] had minor hearing problems as a child. He failed a hearing test in
kindergarten, showing “moderate to severe” hearing loss in the higher frequencies. His
21
problems were not treated until he was in fifth grade, when he was fitted with hearing
aids. [2 SHCR 326-29].
45.
[Petitioner] informed counsel of minor hearing loss as a child, but he did not indicate
that he suffered any hearing loss at the time of trial. [Petitioner’s] relatives did not
mention any hearing loss. None of his juvenile or prison records indicated any hearing
problems. Neither counsel nor any of the experts who examined [Petitioner] noted any
hearing problems. [Petitioner] did not have any difficulty hearing and consulting with
counsel at the time of trial. [5 SHCR 1407 (Gore affidavit), 1418-19 (Miears
affidavit)].
46.
Gonzales obtained information from family that [Petitioner] had received treatment for
an ear problem. [5 SHCR 1148 (Gonzales affidavit)]. Prisoner records attached to
Gonzales’s Affidavit show that [Petitioner] wore hearing aids. E.g. Gonzales
Affidavit, “N.C. Department of Correction Report of Medical Examination” dated
3/18/99 [5 SHCR 1319].
47.
The State provided material during discovery, specifically grand jury testimony of
[Petitioner’s] sister, in which she mentioned [Petitioner’s] hearing issue. [5 SHCR
1117].
48.
Counsel reasonably determined that no further investigation of [Petitioner’s] early
hearing loss was required. “Counsel is not required to pursue every path until it bears
fruit or until all hope withers.” Moore v. Johnson, 194 F.3d 586, 616 (5th Cir. 1999)
(quoting Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980)).
49.
The result of the proceeding would not have been different had counsel presented this
evidence. Testimony that [Petitioner] had minor hearing loss as a child that resolved
by adulthood would have minimal mitigating value to a jury. It would be greatly
outweighed by the facts of the offense and [Petitioner’s] extensive criminal history.
Also, presenting the testimony through any of [Petitioner’s] relatives would have
introduced significant prejudicial evidence.
5 SHCR 1518-19. The TCCA adopted these findings in denying Petitioner’s application for a writ of
habeas corpus. As before, Petitioner did not rebut the findings of fact with clear and convincing
evidence. The findings of fact were reasonable based on the evidence presented to the state courts, and
the conclusions of law were reasonable in light of clearly established federal law as determined by the
Supreme Court. Petitioner characterizes the state court as dismissive of the issue; nonetheless, the
findings and conclusions were reasonable in light of the evidence before the state court and established
22
law. Petitioner failed to satisfy his burden under § 2254(d) of showing that counsel’s representation
on this issue was deficient or that he was prejudiced by such deficient representation.
In the third sub-claim, Petitioner alleges that trial counsel were ineffective in failing to
investigate, develop and present the impact his Laotian immigration experience had on his upbringing.
In the state habeas proceedings, he submitted an affidavit from his father [2 SHCR 145-157], an
affidavit from his sister [2 SHCR 331-332], notes from an interview of his mother [4 SHCR 898-907],
an affidavit from his brother [4 SHCR 908-915], along with a history of his family compiled by
Deborah Gray, LCSW [4 SHCR 948-983]. The affidavits talk about the horror of living as poor
farmers in Laos, their interaction with the Communists and life in a refugee camp. Petitioner
complains that counsel made the strategic decision not to present this evidence because it would not
have been mitigating and could have been aggravating.
This issue was fully developed during the state habeas corpus proceedings. Counsel Miears
provided the following explanation as to why he did not present this issue during the sentencing phase
of the trial as mitigating evidence:
I am impressed with the information presented in the writ concerning the immigration
experience of [Petitioner’s] parents. However, this was indeed information that was learned
by me, and its use at trial was certainly considered. The immigration experience of
[Petitioner’s] family was discussed at length with his mother, father, and sister. This was an
aspect of his life that I initially felt information could be presented which would possibly be
mitigating. As the investigation progressed, however, it became clear that, as applied to
[Petitioner’s] life, it was not mitigating. It was determined by me, based upon the information
then known to me, that this area could easily be seen as an aggravating factor.
The horrible immigration experience of [Petitioner’s] father and mother was just that an experience of his father and mother. [Petitioner] was born in the United States, and to my
knowledge has never travelled outside the United States. [Petitioner] did not have those
experiences himself. If his mother or father had been charged with a crime, it certainly would
have been a factor of their background. Indeed the argument existed that he had been rescued
by his parents from that experience, but in return he had not taken advantage of this
opportunity by his decision to join gangs. This was in juxtaposition from the relatively
productive lives his siblings had developed from the same parentage.
23
5 SHCR 1427-28. Co-counsel Gore likewise stated that they were concerned that Petitioner’s siblings
grew up in the same family environment and that they “had avoided a life of violent gang involvement
and violent crimes against persons.” Id. at 1404.
In light of the evidence, the trial court issued the following findings of fact:
36.
[Petitioner’s] father, Komonh, and mother, Phong, immigrated from Laos before
[Petitioner’s] birth.
a.
b.
Komonh was forced to leave his family behind, but he met Phong and her two
sons, Chanh and Kominh, and they went to a refugee camp together. After
Sopha (also called Monica) was born in 1979, the family immigrated to the
United States. [Id. at 149-50].
c.
37.
Komonh served in the Laotian Army, assisting the United States in the war in
Southeast Asia in the late 1960s before being sent to a reeducation camp after
the Communists took power in 1974. [2 SHCR 146-47].
The family had a sponsor in the United States that provided them a place to
live, help findings a job, and money for food and clothing. The family moved
in search of better work while Phong was pregnant with [Petitioner]. They
moved several times when [Petitioner] was young, finally settling in Charlotte,
North Carolina when [Petitioner] was five years old. [Id. at 150-53].
Counsel was aware of [Petitioner’s] parents’ immigration experiences through
interviews with [Petitioner] and his family but determined that it was not relevant to
[Petitioner’s] mitigation case.
a.
Counsel believed that the immigration experience of [Petitioner’s] parents,
however terrible, would not be regarded as mitigating by a jury because it was
not [Petitioner’s] own experience. If anything, it could be seen as an
aggravating factor because the jury could see that [Petitioner’s] parents rescued
him from that life and he did not take advantage of the opportunity. [5 SHCR
1427-28 (Miears affidavit)].
b.
[Petitioner’s] three older siblings were generally law-abiding. His sister Sopha
had minor disciplinary problems such as sneaking out with boyfriends. His
brother Kominh spent one night in jail as a teenager but never got into any
other legal trouble. His eldest brother Chanh served in the Army and worked
for a bank. [4 SHCR 912-15].
c.
Counsel believed that the successes of his siblings would diminish the
effectiveness of any arguments that [Petitioner’s] parents’ immigration
24
experiences were responsible for [Petitioner’s] behavior. [5 SHCR 1404 (Gore
affidavit), 1427-28 (Miears affidavit)].
5 SHCR 1516-17. The state habeas court added that the prospect of presenting the testimony of
Petitioner’s family’s Laos immigration experience was made even worse because his relatives thought
he deserved to die. Id. at 1517. The state habeas court noted that counsel, in fact, elicited testimony
about the family being war refugees through Petitioner’s juvenile court counselor. Id. at 1518. The
Director persuasively argued that any additional testimony would have been cumulative. See Motley
v. Collins, 18 F.3d 1223, 1228 (5th Cir.), cert. denied, 513 U.S. 960 (1994); Lincecum v. Collins, 958
F.3d 1271, 1280 (5th Cir.), cert. denied, 506 U.S. 957 (1992).
The state habeas court’s conclusions of law on this issue were as follows:
41.
Counsel made a strategic decision that testimony about [Petitioner’s] family’s
immigration experiences would not be mitigating and could be aggravating, both in
itself and through other evidence that would have been introduced had [Petitioner’s]
family testified. [5 SHCR 1404 (Gore affidavit), 1426-27, 1429 (Miears affidavit)].
42.
Counsel’s strategic decision not to present immigration testimony was reasonable,
based on their investigation and experience with Collin County juries. Counsel were
not deficient on this ground.
43.
[Petitioner] was not prejudiced by counsel’s choice not to present immigration
testimony in this case, based on its minimal mitigating potential, its potential to be
considered an aggravating factor, and the harmful testimony [Petitioner’s] family could
have offered under cross-examination had they been called regarding this issue.
5 SHCR 1518. Once again, the TCCA adopted all of the trial court’s findings and conclusions
regarding Petitioner’s immigration experiences. The findings of fact were reasonable based on the
evidence presented to the state courts, and the conclusions of law were reasonable in light of clearly
established federal law as determined by the Supreme Court.
It is specifically noted that the Supreme Court in Strickland explained “strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable;
25
and strategic choices made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S.
at 690-91. Federal courts “will not question a counsel’s reasonable strategic decisions.” Bower v.
Quarterman, 497 F.3d 459, 470 (5th Cir. 2007), cert. denied, 553 U.S. 1006 (2008). In applying
Strickland, the Fifth Circuit has held that “the failure to present a particular argument or evidence is
presumed to have been the result of strategic choice.” Taylor v. Maggio, 727 F.2d 341, 347-48 (5th
Cir. 1984). Habeas corpus relief is unavailable if a petitioner fails to overcome the presumption that
counsel made sound strategic decisions. Del Toro v. Quarterman, 498 F.3d 486, 491 (5th Cir. 2007),
cert. denied, 552 U.S. 1245 (2008). Moreover, federal courts may not grant habeas corpus relief where
a state court’s decision that counsel made a strategic decision not to pursue or present evidence
regarding an issue was not an unreasonable determination of the facts. Wood v. Allen, 558 U.S. 290,
304-05 (2010).
Petitioner argues that the state court’s decision in characterizing counsel’s action as a “strategic
decision” was an unreasonable application of Strickland, particularly in light of light of counsel’s
statement he may have made all of the family members testify if he had all of the DSS records.
Nonetheless, counsel was fully aware of Petitioner’s family’s immigration experience. He made the
choice to forego presenting it based on his investigation. His decision was a reasonable strategy based
on his investigation. With the benefit of hindsight, he possibly would have pursued a different
strategy. Still, his trial strategy was reasonable in light of the facts known to him at the time. This
particular ineffective assistance of counsel claim must be rejected for the additional reason that
Petitioner has not shown harm. Overall, with respect to the Laotian immigration story ineffective
assistance of counsel sub-claim, Petitioner is not entitled to relief because he has not shown, as
required by 28 U.S.C. § 2254(d), that the State court findings resulted in a decision that was contrary
26
to, or involved an unreasonable application of, clearly established federal law as determined by the
Supreme Court of the United States, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceedings.
Petitioner’s fourth sub-claim under ground for relief number one relates to his first and third
sub-claims. This time he specifically alleges that his attorneys were ineffective because they did not
call any of his family members to testify during the punishment trial. He asserted that state habeas
counsel conducted a thorough investigation of his family history and discovered facts that, if presented,
would have painted a much different picture of his family and childhood that would have had a
significant impact at the punishment phase. See Petition at 44-45. He stressed that his family was far
from intact. He complained that the jury never learned from family members about the traumatizing
events associated with the war in Laos.
In analyzing this sub-claim, it is noted that trial counsel Miears’ affidavit repeatedly explained
why he did not call family members to testify during the punishment phase of the trial. He initially
provided the following explanation as to Petitioner’s mother:
Interviews with [Petitioner’s] mother included discussions of her immigration
experience, as well as how this may have influenced [Petitioner’s] background. In the end a
strategic decision was made not to call her as a witness. On the whole it was believed that
putting his mother on the stand, when she would say that in her opinion he deserved the death
penalty, would not be in [Petitioner’s] best interest. Her knowledge of his gang involvement
would work against our presentation concerning the issue of future dangerousness.
5 SHCR 1427. Miears subsequently addressed the issue again as follows:
Evidence regarding his family background, upbringing, and schooling was investigated.
Members of [Petitioner’s] family including his mother, father, sister and brothers were
extensively interviewed. These interviews occurred on multiple occasions at their homes in
North Carolina, Arkansas, and at the time of trial in McKinney, Texas. The interviews were
conducted using both a family member for an interpreter, and a Laotian speaking interpreter
in McKinney, Texas. They were brought to McKinney for trial to continue their interviews
and to determine if they persisted in their positions concerning the proper punishment for
[Petitioner] if he was found guilty. Their attitudes did not change. While in McKinney, Texas,
27
during the time of trial, one of their close family members passed away in North Carolina.
They all expressed a desire to leave McKinney, Texas to attend his funeral. This was after the
jury returned a verdict of guilty to the offense of capital murder. They knew this would
preclude them from testifying for [Petitioner]. They all left. I did not see any reason for them
to stay or return since I had determined that calling them as witnesses would not be in
[Petitioner’s] best interest.
In addition, calling family members to testify would have allowed the State to introduce
evidence concerning [Petitioner’s] Asian gang history and gang affiliation. A center-point of
out strategy in voir dire, and throughout trial, was to attempt to secure an answer to special
issue number one that [Petitioner] was not a future danger. Gang affiliation is a strong
predictor of future violence. Putting [Petitioner’s] family members on the stand would have
allowed the State to question those witnesses extensively about [Petitioner’s] gang history. It
was decided that having family members corroborate this history would be extremely
counterproductive to the assertion that [Petitioner] would not be a threat to anyone in prison.
In sum, a strategic decision was made to not call or force members of his family to
testify because they believed that if he committed the crime alleged he should be given the
death penalty.
5 SHCR 1428-30.
Co-counsel Gore’s explanation in his affidavit went even further:
Mr. Miears and I discussed many times whether to call [Petitioner’s] parents and
siblings to testify at his trial. We noticed a common theme emerging from our conversations
with [Petitioner’s] family members: they regarded [Petitioner] as ill-tempered, unruly and
disrespectful of authority. Mr. Miears and I feared putting them on the stand would allow the
State to elicit these opinions as well as evidence of [Petitioner’s] involvement with violent
gangs in the Charlotte, North Carolina area. We were also concerned that by having his
siblings testify, the prosecution would be able to successfully point-out that they, despite
having grown-up in the same family environment as [Petitioner], had avoided a life of violent
gang involvement and violent crimes against persons. We were also concerned by what
seemed to be their shared opinion that if [Petitioner] did commit capital murder then he
deserved the death penalty.
5 SHCR 1404. Gore also explained that their anticipated testimony would have detracted from the
testimony of prison guards and workers in North Carolina who told counsel and ultimately testified
that Petitioner “was a model inmate, respectful of authority, dependable, obedient, not dangerous in
prison and artistically talented.” Id.
28
In light of the evidence, the trial court issued the following findings of fact:
38.
Counsel also believed that [Petitioner’s] family’s testimony would have introduced
several negative factors.
a.
[Petitioner’s] mother explained to the defense team that it would be “very sad”
if her son was executed, but that if he committed the charged offense then he
deserved to die. [5 SHCR 1425-26, 1429 (Miears affidavit)]. Other relatives
echoed this sentiment. [5 SHCR 1398, 1404 (Gore affidavit), 1429 (Miears
affidavit)].
b.
A mother’s testimony that her son deserved to die would be extremely
powerful testimony before the jury and significantly prejudicial to the defense.
c.
[Petitioner’s] relatives were also familiar with [Petitioner’s] history with Asian
gangs and crimes committed as a juvenile. Had they testified for the defense,
they would have been susceptible to cross-examination on these issues. [5
SHCR 1398, 1403-04 (Gore affidavit),1426-29 (Miears affidavit)].
d.
Counsel believed that a person’s gang affiliation is seen by juries as a strong
predictor of future dangerousness. Testimony from [Petitioner’s] family on
this ground would undermine counsel’s primary argument, that [Petitioner]
was not a future danger. [5 SHCR 1429 (Miears affidavit)].
5 SHCR 1517-18. The trial court went on to find that counsel made the strategic decision not to call
Petitioner’s family and that the testimony about the family’s immigration experience would not have
been mitigating and could have been aggravating. Id. at 1518. The TCCA subsequently adopted these
findings and conclusions in denying the state application for a writ of habeas corpus.
The state court findings and conclusions were reasonable in light of the evidence before the
state court. Counsel made a reasonable trial strategy not to call Petitioner’s family members to testify.
Petitioner attempts to counter the state court’s findings and conclusions by arguing that his family’s
immigration experience should have been presented to the jury. He essentially argues that counsel
should have spent more time investigating and pursuing a different trial strategy. Nonetheless, counsel
fully considered using family members during the sentencing phase and concluded that their testimony
would have been aggravating, as opposed to mitigating. The decision to forego presenting “double29
edged” evidence was a reasonable trial strategy. Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.)
(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.”), cert. denied, 540 U.S. 968 (2003);
Boyle v. Johnson, 93 F.3d 180, 188 (5th Cir. 1996) (“noting the heavy deference owed trial counsel
when deciding as a strategical matter to forego admitting evidence of a ‘double-edged nature’ which
might harm defendant’s case”), cert. denied, 519 U.S. 1120 (1997); Rodriguez v. Quarterman, 204
F. App’x. 489, 500 (5th Cir. 2006), cert. denied, 549 U.S. 1350 (2007).
Overall, with respect to all facets of ground for relief number one, Petitioner has not shown that
the representation provided by his attorneys was deficient nor shown that he was prejudiced by
deficient representation. Furthermore, he has not shown, as required by 28 U.S.C. § 2254(d), that the
state court findings resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the Supreme Court of the United States, or resulted
in a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Finally, he failed to overcome the “doubly” deferential
standard that must be accorded to counsel with respect to ineffective assistance of counsel claims in
the context of § 2254(d). See Richter, 131 S. Ct. at 788. Relief on claim number one should be
denied.
Claim Number 2:
By conceding guilt as to the issue of whether a robbery occurred
in this case, trial counsel rendered ineffective assistance of counsel in violation of
Petitioner’s Sixth Amendment right to counsel and the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
In ground for relief number two, Petitioner argues that his trial attorney was ineffective for
conceding guilt as to the issue of whether a robbery occurred. Defense counsel told the jury in his
opening statement that Petitioner entered the model home and met Sarah Walker and that “he wanted
30
to rob her, and it didn’t go the right way, and he killed her.” 21 RR 29.3 Petitioner complains that
despite the fact that Walker’s Rolex watch and ring were never recovered, trial counsel conceded that
her murder was the result of a robbery gone bad. As a consequence, no effort was made by trial
counsel during the guilt-innocence phase of the trial to refute that a robbery occurred in this case.
Petitioner stresses that the robbery was the only aggravating felony offense alleged by the State to
justify its capital murder charge. Petitioner argues that because the evidence that a robbery occurred
in this case was purely circumstantial, defense counsel’s concession of guilt as to this issue amounted
to ineffective assistance of counsel. In addition to counsel’s concession during the opening statement,
he also points to counsel’s failure to cross-examine the State’s witnesses on this issue and his closing
argument. Petition at 53-55, 59.
In response, the Director argues that the claim is unexhausted and procedurally barred.
Petitioner admits that the issue was not raised by state habeas counsel, but he argues that the issue
should be considered on the merits in light of the Supreme Court’s decisions in Martinez v. Ryan, 132
S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013).
State prisoners bringing petitions for a writ of habeas corpus are required to exhaust their state
remedies before proceeding to federal court unless “there is an absence of available State corrective
process” or “circumstances exist that render such process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b)(1). In order to exhaust properly, a state prisoner must “fairly present”
all of his claims to the state court. Picard v. Connor, 404 U.S. 270, 275 (1971). In Texas, all claims
must be presented to and ruled upon the merits by the TCCA. Richardson v. Procunier, 762 F.2d 429,
432 (5th Cir. 1985). When a petition includes claims that have been exhausted along with claims that
3
“RR” refers to the Reporter’s Record of the transcribed trial proceedings, preceded by the volume
and followed by page number(s).
31
have not been exhausted, it is called a “mixed petition,” and historically federal courts in Texas have
dismissed the entire petition for failure to exhaust. See, e.g., Galtieri v. Wainwright, 582 F.2d 348,
355 (5th Cir. 1978) (en banc).
The Director’s argument that the present ground for relief is unexhausted and procedurally
barred brings into play the procedural default doctrine that was announced by the Supreme Court in
Coleman v. Thompson, 501 U.S. 722 (1991). The Court explained the doctrine as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to
an independent and adequate state procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.
Id. at 750. As a result of Coleman, unexhausted claims in a mixed petition have routinely 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, 684-85 (5th Cir. 2012); Balentine v. Thaler, 626 F.3d 842, 857 (5th
Cir. 2010), cert. denied, 131 S. Ct. 2992 (2011). The procedural bar may be overcome by
demonstrating either cause and prejudice for the default or that a fundamental miscarriage of justice
would result from the court’s refusal to consider the claim. Fearance, 56 F.3d at 642 (citing Coleman,
501 U.S. at 750-51).
Until just recently, Petitioner’s second ground for relief would unquestionably be foreclosed
as unexhausted and procedurally barred. However, the Supreme Court opened the door slightly for
32
a showing of cause and prejudice to excuse the default in Martinez and Trevino. In Martinez, the
Supreme Court answered a question left open in Coleman: “whether a prisoner has a right to effective
counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective
assistance at trial.” 132 S. Ct. at 1315. These proceedings were referred to as “initial-review collateral
proceedings.” Id. The Court held:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance of counsel at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.
Id. at 1320. The Supreme Court specified that the standards of Strickland apply in assessing whether
initial-review habeas counsel was ineffective. Id. at 1318.
The Supreme Court extended Martinez to Texas in Trevino. Although Texas does not preclude
appellants from raising ineffective assistance of trial counsel claims on direct appeal, the Court held
that the rule in Martinez applies because “the Texas procedural system - as a matter of its structure,
design, and operation - does not offer most defendants a meaningful opportunity to present a claim of
ineffective assistance of trial counsel on direct appeal.” Trevino, 133 S. Ct. at 1921. The Court left
it to the lower courts to determine on remand whether Trevino’s claim of ineffective assistance of
counsel was substantial and whether his initial state habeas attorney was ineffective. Id.
The Fifth Circuit has summarized the application of the rule announced in Martinez and
Trevino as follows:
To succeed in establishing cause to excuse the procedural default of his ineffective assistance
of trial counsel claims, [petitioner] must show that (1) his underlying claims of ineffective
assistance of trial counsel are “substantial,” meaning that he “must demonstrate that the
claim[s] ha[ve] some merit,” Martinez, 132 S. Ct. at 1318; and (2) his initial state habeas
counsel was ineffective in failing to present those claims in his first state habeas application.
See id.; Trevino, 133 S. Ct. at 1921.
33
Preyor v. Stephens, 537 F. App’x 412, 421 (5th Cir. 2013), cert. denied, 134 S. Ct. 2821 (2014).
“Conversely, the petitioner’s failure to establish the deficiency of either attorney precludes a finding
of cause and prejudice.” Sells v. Stephens, 536 F. App’x 483, 492 (5th Cir. 2013), cert. denied, 134
S. Ct. 1786 (2014). The Fifth Circuit subsequently reaffirmed this basic approach in Reed v. Stephens,
739 F.3d 753, 774 (5th Cir.), cert. denied, 135 S. Ct. 435 (2014).
In the present case, Petitioner argues that he should be permitted to proceed with his second
ground for relief because of Martinez and Trevino. The Director argues that the underlying claim is
wholly without merit and not “substantial.” He specifically argued that Petitioner has not shown there
would have been any difference in the outcome. See Preyor, 537 F. App’x at 422.
The heart of the claim concerns the sufficiency of the evidence of the underlying offense of
robbery. This issue was fully developed on direct appeal. After discussing the Jackson4 standard
regarding sufficiency of the evidence claims and that direct evidence linking Petitioner to the missing
evidence was not required, the TCCA rejected the insufficient evidence claim as follows:
The evidence showed that Walker purchased a new Rolex watch the day before she was
murdered. A bank surveillance video showed Walker wearing a watch and a ring at around
11:45 a.m. on the day she was murdered. She was no longer wearing the watch and ring when
her body was discovered less than two hours later. Police later discovered a box and receipt
for Walker’s Rolex watch at her residence, but the watch itself was never found. Bank records
showed that [Petitioner’s] bank account was overdrawn by $82.27 on the day before Walker’s
murder. In his statement to police, [Petitioner] said that he had recently pawned some personal
property for case and that his cell phone had been “cut off” because he “fell behind on bills and
stuff.” A pawn shop receipt dated July 26, 2006, confirmed [Petitioner’s] statement he had
pawned his Kenneth Cole watch.
. . . [T]he evidence in the instant case was such that the jury could reasonably infer that
[Petitioner] murdered Walker in the course of committing or attempting to commit robbery.
The evidence, viewed in the light most favorable to the jury’s verdict, was legally sufficient
to support [Petitioner’s] conviction.
4
Jackson v. Virginia, 443 U.S. 307 (1979).
34
Chanthakoummane v. State, 2010 WL 1696789, at *4-5. The Director reasonably observed that
Petitioner has not shown what counsel should have done that would have changed the outcome of the
trial. Instead, the only thing that Petitioner even suggested was that Ranger Davidson should have
been cross-examined generally about the bank surveillance video, but he did not offer any specific
questions that should have been posed to the State’s witness. He stressed that Petitioner’s argument
is primarily based on the fact that the watch and ring were not uncovered, but the failure to uncover
such evidence does not undermine the circumstantial evidence of the crime as outlined by the TCCA.
The Court is of the opinion that the Director’s arguments are persuasive. Assuming arguendo
that trial counsel should not have conceded the issue of whether a robbery or attempted robbery
occurred, Petitioner failed to show that the outcome of the trial would have been different “but for”
counsel’s deficient representation. Stated differently, he failed to show that the “[t]he likelihood of
a different result [was] substantial, not just conceivable.” Richter, 131 S. Ct. at 792 (citing Strickland,
466 U.S. at 693). As such, Petitioner failed to satisfy his burden of showing a substantial claim of
ineffective assistance of trial counsel. Petitioner likewise failed to show that state habeas counsel was
ineffective for failing to raise the issue in the state habeas corpus proceedings. The Texas Court of
Criminal Appeals found that the evidence was sufficient for a jury to reasonably infer that Petitioner
murdered Walker in the course of committing or attempting to commit robbery. State habeas counsel
was not required to raise frivolous or futile arguments. See Johnson v. Cockrell, 306 F.3d 249, 255
(5th Cir. 2002), cert. denied, 538 U.S. 926 (2003); Koch, 907 F.2d at 527 (both cases concerning
raising frivolous or futile motions during trial). Petitioner has not shown cause and prejudice as
outlined by the Supreme Court in Martinez and Trevino. He has not overcome the procedural bar.
Consequently, the second ground for relief must be rejected as unexhausted and procedurally barred.
35
Claim Number 3:
Petitioner’s due process rights under the Fourteenth Amendment
and his Sixth Amendment right to an impartial jury were violated when a juror
committed misconduct by discussing the case with his spouse.
In ground for relief number three, Petitioner alleges that his right to an impartial jury was
violated because Juror Number Nine, Alan Schwartz, committed misconduct by talking to his wife
about the trial during the course of the trial. He further alleges that the situation was made even worse
because Schwartz’s wife followed the trial in the media. In support of the claim, Petitioner submitted
an affidavit from law student Raechel Parolisi asserting that Schwartz made the admission to Denise
Santa Ana, another law student who was interviewing the jurors as part of a law school class project.
See 4 SHCR 984-987. It is noted that Parolisi did not personally hear the alleged admission and that
her statement was hearsay.
The Sixth Amendment right to a fair trial includes the right to an impartial jury. Morgan v.
Illinois, 504 U.S. 719, 726-27 (1992). “In essence, the right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair
hearing violates even the minimal standards of due process.” Irvin v. Dowd, 366 U.S. 717, 722 (1961)
(citations omitted). “[P]rivate talk, tending to reach the jury by outside influence” is constitutionally
suspect because it is not subject to “full judicial protection of the defendant’s right of confrontation,
cross-examination, and of counsel.” Parker v. Gladden, 385 U.S. 363, 364 (1966) (internal citations
and quotation marks omitted).
The Director concedes that there can be no question that if a juror discusses the trial with
someone other than his fellow jurors, such as alleged here, that such a discussion would constitute an
“external influence” which can be used to impeach the verdict. See Oliver v. Quarterman, 541 F.3d
329, 335-36 (5th Cir. 2008) (“A juror is exposed to an external influence when the juror reads
information not admitted into evidence, such as newspaper article about the case, or hears prejudicial
36
statements from others[.]”). See also Fullwood v. Lee, 290 F.3d 663, 676-77, 680-82 (4th Cir. 2002)
(remanding for an evidentiary hearing in a habeas case when petitioner offered evidence that a juror’s
husband, who was “strongly pro-death penalty,” influenced his wife during the trial and deliberations
by “constantly telling” her that she should convict petitioner and sentence him to death). The Director
argues, however, that the state habeas court reasonably found that the jury’s deliberation were not
tainted by any such influence.
The state habeas court fully developed the issue. An evidentiary hearing was conducted on
November 10, 2010. 1 Supp. SHRR 1. All twelve jurors, Schwartz’s wife, and the two law students
at the center of the claim testified. Jason Schwartz testified that he did not talk about the case with his
wife until the trial was over. Id. at 19. Jason Schwartz’s wife, Theresa Schwartz, testified that her
husband did not tell her anything about what happened during the trial until it was over. Id. at 144,
146. Former law student Raechel Parolisi repeated the same basic information contained in her
affidavit. Id. at 112-132. Former law student Denise Santa Ana testified that she recalled Juror
Schwartz talking about discussing the case with his wife, but she was under the impression that their
conversations occurred only after the trial was over. Id. at 161.
Following the hearing, the state habeas court made the following findings on the issue:
a.
Juror Schwartz testified that he did not talk to his wife about the trial until it was over.
Juror Transcript at 19. He knew that he was not allowed to read or watch any news
coverage of the trial, and his wife did not communicate any outside fact to him during
the trial. Id. at 19-21. His verdict was based solely on what he heard in the courtroom
and not any other source. Id. at 29.
b.
The eleven other jurors testified that Juror Schwartz did not provide any information
about the case that he had learned outside the courtroom or say anything that indicated
he had spoken to his wife or anyone outside the courtroom about the case. Juror
Transcript at 34-35 (Reed), 40-41 (Brown), 47-49 (Lambeth), 59-62 (Dick), 65-68
(Mullis), 71-74 (Nehama), 77-81 (Harris), 84-87 (Robitaile), 90-94 (Wilson), 99-102
(Drake), 105-108 (Gilchrist).
37
c.
Raechel Parolisi testified that she observed the trial while a law student and conducted
juror interviews for a class project after the trial was over. Juror Transcript at 113.
She participated on all interviews except for Juror Schwartz’s. Id. at 116. Her partner,
Denise Santa Ana, conducted Juror Schwartz’s interview. Id. at 116-17. Parolisi
testified that she believed Juror Schwartz’s answers indicated juror misconduct, but
Santa Ana said she did not want to get him in trouble. Id. at 121. Santa Ana showed
Parolisi approximately a minute of the video footage of the interview but did not
provide the entire tape to her. Id. at 121-22, 124-26.
d.
Juror Schwartz’s wife, Theresa Schwartz, testified that Juror Schwartz did not tell her
anything about what happened in the courtroom during the trial. Juror Transcript at
144. They did not talk about the case at all until the trial was over. Id. at 146.
e.
Denise Santa Ana testified that she observed the trial while a law student and
conducted juror interviews for a class project after the trial was over. Juror Transcript
at 157-58. She interviewed Juror Schwartz at his home. Id. at 159. Because Parolisi
could not attend that interview, Santa Ana’s boyfriend attended the interview with her
and videotaped it. Id. at 159-61. Santa Ana transcribed the interview but did not keep
a copy of the video. Id. at 163. Santa Ana recalled that Juror Schwartz mentioned
talking about the case with his wife, but she believed that he was referring to only after
the trial was over. Id. at 161-62, 164-65, 171, 177.
5 SHCR 1524-25. As a result of these findings, the state habeas court further found that the testimony
of the jurors, Mrs. Schwartz and Santa Ana was consistent, based on personal knowledge and was
credible. Id. at 1525. A finding was made that Parolisi’s testimony was based on hearsay and that it
was not credible to the extent that it contradicts the first-hand accounts of the other witnesses. Id. In
light of the evidence, the trial court found that “[n]o credible evidence suggests that Juror Schwartz
improperly communicated with his wife or any other person during trial, or that any juror was privy
to any outside information or shared it with the rest of the jury.” Id. The state habeas court thus
ultimately found that Petitioner had not proven his claim by the preponderance of the evidence and that
he was not entitled to relief. Id. The TCCA subsequently denied relief based on the trial court’s
findings and conclusions and its own review. Ex parte Chanthakoummane, 2013 WL 363124, at *1.
Petitioner argues that the state court’s denial of relief was based on an unreasonable
determination of the facts in light of the evidence presented during the evidentiary hearing. However,
38
the state court made findings of fact consistent with the evidence presented during the hearing. Such
findings are presumed to be sound unless Petitioner rebuts them by “clear and convincing evidence.”
Miller-El, 545 U.S. at 240. Petitioner failed to do so. Moreover, in light of the findings of fact, the
state court reasonably found that there was no juror misconduct due to outside communication.
Overall, with respect to claim number three, Petitioner is not entitled to relief because he has not
shown, as required by 28 U.S.C. § 2254(d), that the state court findings resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law as determined
by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceedings.
Claim Number 4:
A juror’s improper consideration of Petitioner’s failure to testify
at trial violated his Fifth, Sixth and Fourteenth Amendment rights.
The fourth claim is that Juror Schwartz took into consideration Petitioner’s failure to testify
in reaching a verdict. As with the previous claim, Petitioner’s ground for relief is based on the
affidavit provided by former law student Parolisi. 4 SHCR 984-87. The relevant portion of the
affidavit states the following:
Ms. Santa Ana also relayed other comments made by Mr. Schwartz, which I perceived as juror
misconduct. For example, he seemed to hold the fact that [Petitioner] did not testify or
apologize against him.
Id. at 986. Juror Schwartz’s answers to a juror questionnaire were attached to the affidavit. When
questioned about whether he took into consideration Petitioner’s failure to testify, he stated “[t]o say
that it wouldn’t, would be a lie, but in my heart, I feel that if he had something to say, he should say
it and he didn’t say it, so there probably wasn’t anything he could say that would help him. . . . But
you know when you don’t defend yourself, it’s not a good thing, in my opinion, its not a good thing.”
Id. at 995.
39
The state habeas court rejected the claim and issued the following findings:
84.
[Petitioner] alleges that Juror Schwartz improperly considered the fact that he did not
testify in rendering his verdict. [1 SHCR 78-79].
85.
[Petitioner’s] sole evidence in support of his claim is an affidavit from Parolisi, a law
student recounting another law student’s description of an interview with Juror
Schwartz [4 SHCR 984-87]. This evidence is inadmissible as a statement regarding
the jury’s deliberations and will not be considered for any purpose. Tex. R. Evid.
606(b); see Finding 10 [striking all juror affidavits and interviews from the record,
except that they concern outside influences on the jury].
86.
Because [Petitioner] has offered no admissible evidence in support of his claim, he has
not shown that any misconduct occurred.
5 SHCR 1525. The TCCA subsequently denied relief based on the trial court’s findings and
conclusions and its own review. Ex parte Chanthakoummane, 2013 WL 363124, at *1.
“The constitutional right of a defendant to choose not to testify is a fundamental tenet of our
system of justice.” United States v. Johnston, 127 F.3d 380, 399 (5th Cir. 1997), cert. denied, 522
U.S. 1152 (1998). On the other hand, it has been long held that a post-verdict inquiry of jury
members, as live witnesses or by affidavit, is inappropriate. See Mattox v. United States, 146 U.S. 140,
149 (1892) (“[T]he evidence of jurors, as to motives and influences which affected their deliberations,
is inadmissible either to impeach or support the verdict.”); see also Tanner v. United States, 483 U.S.
107, 117-21 (1987) (discussing policy behind federal common law rule against admission of jury
testimony to impeach verdict); Cunningham v. United States, 356 F.2d 454, 455 (5th Cir.) (“wellsettled general rule that a juror will not be heard to impeach his own verdict.”), cert. denied, 384 U.S.
952 (1966). In Cunningham, the Fifth Circuit upheld the trial court’s refusal to consider an affidavit
by one juror who stated that the jurors discussed the defendant’s failure to testify in his own behalf.
This basic tenet that courts generally will not inquire into a jury’s deliberative process is
encapsulated in Rule 606(b) of both the Federal Rules of Civil Procedure and the Texas Rules of Civil
40
Procedure. The Fifth Circuit has accordingly found that the “post-verdict inquiry of jury members,
as live witnesses or by affidavit, is inappropriate and precluded by Federal Rules of Evidence 606(b).”
Williams v. Collins, 16 F.3d 626, 636 (5th Cir.), cert. denied, 512 U.S. 1289 (1994). Williams, like
the present case, involved a Texas death row inmate challenging his conviction in a habeas corpus
proceeding. In affirming the denial of habeas corpus relief, the Fifth Circuit found that the “district
court did not abuse its discretion in disallowing the requested testimony.” Id. Petitioner tries to make
a distinction between Fed. R. Evid. 606(b) and Tex. R. Evid. 606(b), particularly in light of the 1998
amendment to the rule, but the Fifth Circuit rejected such arguments in Salazar v. Dretke, 419 F.3d
384 (5th Cir. 2005), cert. denied, 547 U.S. 1006 (2006). The Fifth Circuit found that both rules “bar
all juror testimony concerning the juror’s subjective thought processes.” Id. at 402. The Court
ultimately found that it could not say the “state habeas court’s application of Texas Rule 606(b) to bar
testimony by jurors concerning their internal discussion . . . was contrary to, or an unreasonable
application of, clearly established law as determined by the Supreme Court.” Id. at 403. More
recently, the Fifth Circuit refused to grant a certificate of appealability with respect to a district court’s
rejection of a claim that jurors took into consideration a defendant’s failure to testify because courts
“will not inquire into the jury’s deliberative process absent a showing of external influences on the
jurors.” Greer v. Thaler, 380 F. App’x 373, 382 (5th Cir. 2010) (citing Tanner, 483 U.S. at 120-21),
cert. denied, 131 S. Ct. 424 (2010). In light of Williams, Salazar and Greer, this Court likewise cannot
say that the state habeas court’s rejection of the proferred evidence under Rule 606(b) was contrary
to, or an unreasonable application of, clearly established law as determined by the Supreme Court.
Moreover, apart from the state court findings, the Court further finds that Petitioner’s claim
impermissibly seeks to delve into a juror’s deliberative process. Federal habeas corpus relief is
unavailable on this claim.
41
Claim Number 5:
Petitioner’s appellate counsel rendered ineffective assistance of
counsel contrary to the Sixth and Fourteenth Amendments to the United States
Constitution by failing to challenge the admissibility of the State’s gang affiliation
witness.
In claim number five, Petitioner complains that appellate counsel failed to challenge the
admissibility of testimony provided by Brian Conner, his juvenile court counselor, regarding his gang
affiliation. He challenged Conner’s testimony on two fronts: his qualifications and the relevancy of
his testimony. He stressed that the issue was properly preserved for appellate review, but his appellate
attorney failed to raise the issue.
The record reveals that Conner testified during the punishment phase of the trial. 24 RR 88177. His qualifications and background as Petitioner’s juvenile counselor were initially discussed
outside of the presence of the jury. Id. at 88-113. He testified that he had over 120 hours of gang
specific training and an advance certificate for gang investigation. Id. at 91. He also discussed how
he knew that Petitioner was a member of a gang. Petitioner’s objections as to him testifying were
overruled, and then the jury was brought in. Id. at 113. Conner then fully discussed Petitioner’s gang
activities before the jury.
The present ground for relief was presented as ground four in the state habeas corpus
proceedings. The state habeas court fully considered the claim and issued the following findings:
89.
In ground 4, [Petitioner] claims that his appellate counsel was ineffective for failing to
challenge the admissibility on appeal of Brian Conner’s testimony regarding
[Petitioner’s] signs of gang membership. [1 SHCR 81-86]. Specifically, he claimed
appellate counsel should have argued Conner was not qualified as an expert witness
and his testimony was not relevant.
90.
Conner testified that he received over 120 hours of gang investigation training, had
received a certificate for advanced gang investigations, and had experience
investigating gangs. 24 RR 91. He explained why certain elements in a letter written
by [Petitioner] demonstrated gang affiliation.
42
91.
The State established that Conner was qualified as an expert witness through his
training, knowledge, and experience pursuant to Texas Rule of Evidence 702.
92.
Even if Conner was not qualified as an expert witness, his testimony was admissible
as lay opinion testimony regarding “observations which do not require significant
expertise to interpret and which are not based on a scientific theory.” See Osbourn v.
State, 92 S.W.3d 531 (Tex. Crim. App. 2002).
93.
Appellate counsel was not ineffective for declining to raise the issue of Conner’s
qualification on appeal because he would not have prevailed. See Burger v. Kemp, 483
U.S. 776, 784 (1987) (reasonable strategic decision to forego claim on appeal is not
ineffective assistance of counsel).
94.
Defense counsel did not object at trial that the testimony was not relevant. He objected
to notice and that Conner was not qualified as an expert. 24 RR 110-11.
95.
Appellate counsel was not ineffective for declining to raise the issue of relevance on
appeal because it was not preserved and would have been dismissed.
96.
[Petitioner] is not entitled to relief on Ground 4.
5 SHCR 1526.
The two-prong Strickland test applies to claims of ineffective assistance of counsel by both trial
and appellate counsel. Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S.
1163 (2002). “On appeal, effective assistance of counsel does not mean counsel who will raise every
nonfrivolous ground of appeal available.” Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998)
(citations omitted), cert. denied, 525 U.S. 1174 (1999). “Rather, it means, as it does at trial, counsel
performing in a reasonably effective manner.” Id. To demonstrate prejudice, a petitioner must “show
a reasonable probability that, but for his counsel’s unreasonable failure . . ., he would have prevailed
on his appeal.” Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001) (citations omitted). He bears
the “‘highly demanding and heavy burden in establishing actual prejudice,’ not merely that ‘the errors
had some conceivable effect on the outcome of the proceeding.’” Givens v. Cockrell, 265 F.3d 306,
310 (5th Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000)).
43
In the present case, Conner established his qualifications. He had received over 120 hours of
gang investigation training and had received a certificate for advanced gang investigations. He was
qualified to testify as a gang expert; thus, the trial court overruled Petitioner’s challenge to his
testimony. 24 RR 113. The state habeas court subsequently reasonably found that he was qualified
to testify. Appellate counsel’s representation was not “deficient for failing to press a frivolous point.”
See Vasquez v. Stephens, ___ F. App’x ___, 2015 WL 301181, at *4 (5th Cir. Jan. 23, 2015) (citations
omitted). Petitioner has not shown, as required by 28 U.S.C. § 2254(d), that the state court findings
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States, or resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceedings.
Regarding the question of whether the testimony about Petitioner’s gang membership was
relevant, the state habeas court found that trial counsel’s objection on that ground was not properly
made. 5 SHCR 1526 (citing 24 RR 110-11). The Fifth Circuit has held that the “procedural-default
doctrine precludes federal habeas review when the last reasoned state-court opinion addressing a claim
explicitly rejects it on a state procedural ground.” Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.
2004), cert. denied, 543 U.S. 1124 (2005). With this in mind, the Fifth Circuit has consistently held
that the Texas contemporaneous objection rule constitutes an adequate and independent ground that
procedurally bars federal habeas review of a petitioner’s claims. Turner v. Quarterman, 481 F.3d 292,
301 (5th Cir.), cert. denied, 551 U.S. 1193 (2007); Cardenas v. Dretke, 405 F.3d 244, 249 (5th Cir.
2005), cert. denied, 548 U.S. 925 (2006); Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000)
(“[T]he Texas contemporaneous objection rule is strictly or regularly applied evenhandedly to the vast
majority of similar claims, and is therefore an adequate procedural bar.”), cert. denied, 532 U.S. 915
44
(2001). The state habeas court found that Petitioner’s objection during trial to Conner’s testimony was
not based on relevancy; thus, it was not properly preserved for appeal. The state habeas court
accordingly found that appellate counsel was not ineffective for declining to raise the issue of relevance
on appeal because it was not preserved and would have been dismissed. 5 SHCR 1526. The TCCA
adopted these findings in denying relief. The Fifth Circuit has characterized an appellate challenge to
the admissibility of evidence that was not properly preserved as a frivolous challenge. Givens, 265
F.3d at 310. Consequently, “counsel acted reasonably in declining to raise an unreviewable issue.”
Id. Petitioner’s appellate counsel’s representation was not deficient to the extent that he failed to raise
an unreviewable issue.
The Court would add that Petitioner’s claim that his gang affiliation was not relevant lacks
merit. Conner’s testimony was presented in the context of the issue of future dangerousness.
Petitioner’s extensive criminal history, including his gang related activities, was relevant regarding this
issue. See Fuller v. Johnson, 114 F.3d 491, 497-98 (5th Cir.) (finding that the defendant’s membership
in a racist gang was properly considered in sentencing because it went to future dangerousness in light
of the evidence showing the gang’s violent tendencies), cert. denied, 522 U.S. 963 (1997). It should
be further noted that the Fifth Circuit has found that a habeas petitioner cannot show prejudice when,
as in the present case, evidence of his “alleged gang membership was just one part of a larger body of
evidence regarding [petitioner’s] future dangerous, most of which concerned his lengthy criminal
history . . .” Garza v. Stephens, 575 F. App’x 404, 415 (5th Cir. 2014).
Overall, with respect to the claim number five, Petitioner has not shown that his appellate
counsel’s representation was deficient for failing to challenge the State’s gang affiliation witness. He
likewise failed to show prejudice. He has not satisfied his burden of showing that his appellate counsel
was ineffective on this issue. Furthermore, he has not shown, as required by 28 U.S.C. § 2254(d), that
45
the state court findings resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United States,
or resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Finally, he failed to overcome the doubly deferential
standard that must be afforded to counsel in the context of § 2254(d). See Richter, 131 S. Ct. at 788.
Relief must be denied on claim number five.
Claim Number 6:
Petitioner’s appellate counsel rendered ineffective of counsel
contrary to the Sixth and Fourteenth Amendments to the United States Constitution by
failing to challenge the sufficiency of the evidence regarding Petitioner’s future
dangerousness.
Claim number six is another ineffective assistance of appellate counsel claim. This time
Petitioner complains that his appellate attorney failed to challenge the sufficiency of the evidence
regarding his future dangerousness. He noted that his trial counsel presented several witnesses on his
behalf, including prison guards who testified about his incarceration in North Carolina, a North
Carolina inmate, the Director of Restoration House Ministries, and a forensic psychologist. The State,
on the other hand, called a witness with respect to the victim impact on Walker’s child, various law
enforcement officers, Brian Conner, Petitioner’s parole officer and individuals who had experiences
with Petitioner. The State also called A. P. Merillat regarding inmates sentenced to life in prison
without parole. Merillat testified that there had been many violent offenses committed in prison,
including some by inmates on death row. 27 RR 79. In rebuttal, defense counsel called Walter
Quijano, an expert in prison classification, who testified that there were sufficient administrative
procedures in place in the Texas prison system to control the conduct of inmates sentenced to life
without parole. 27 RR 133-61. Petitioner alleges that none of the evidence offered by the State alleged
specifically that he would be dangerous while incarcerated or that he would present a future danger
46
if incarcerated for life. He argued that appellate counsel’s failure to raise the issue on direct appeal was
inexcusable neglect that amounts to ineffective assistance of counsel.
“Under Texas law, a jury may consider, but is not limited to, several factors in determining
future dangerousness: the circumstances of the offense, including the defendant’s state of mind; the
calculated nature of the defendant’s acts; forethought and deliberateness; prior criminal record, and
the severity of prior crimes; the defendant’s age and personal circumstances at the time of the offense;
whether the defendant was acting under duress or domination of another; psychiatric evidence; and
character evidence.” Duncan v. Cockrell, 70 F. App’x 741, 747 (5th Cir.) (citing Keeton v. State, 724
S.W.2d 58, 61 (Tex. Crim. App. 1987)), cert. denied, 540 U.S. 1059 (2003). Both Petitioner and the
Director focused on the Keeton factors in arguing whether the evidence of future dangerousness was
sufficient. The Director also properly observed that the sufficiency of the evidence of future
dangerousness is reviewed under Jackson v. Virginia. See Ross v. State, 133 S.W.3d 618, 621 (Tex.
Crim. App. 2004).
Claim number six was presented as ground five in the state habeas corpus proceedings. The
state habeas court made the following findings regarding this issue:
97.
In Ground 5, [Petitioner] complains his appellate counsel was ineffective for failing to
raise a complaint that the evidence was insufficient to prove he was a future danger.
[1 SHCR 88-89].
98.
The Keeton factors overwhelmingly support a finding of future dangerousness. See
Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).
a.
[Petitioner] acted alone. Neither the DNA evidence nor any eye witness ever
suggested more than one person was involved in the murder. There was no
indication that [Petitioner] was influenced or coerced by anyone into
committing the offense.
b.
The crime was calculated, premeditated, and deliberate. [Petitioner] appeared
at the home of real estate agent the night before the murder and tried to get
inside the house before the agent called the police. The morning of the murder,
47
[Petitioner] called another real estate agent to arrange to meet her, using an
assumed name. After encountering her with her husband, [Petitioner] went to
a nearby model home to commit the brutal murder of Sarah Walker. The
record showed that [Petitioner] intentionally and repeatedly attempted to isolate
a woman to commit the offense.
c.
[Petitioner] stabbed Sarah Walker more than thirty times, hit her in the face
with a plant stand, and bit her shoulder. [Petitioner’s] motive was apparently
robbery, as he took a Rolex watch and a ring from the victim. The violent,
close-range murder of a stranger for money further demonstrates
premeditation, as well as explosive anger and danger.
d.
[Petitioner’s] criminal history was extensive and fraught with violence. He
committed violent assaults and thefts as a juvenile, stole cars, and once tied up
two elderly women with electrical cord before stealing their car while on the
run from police.
e.
[Petitioner] was twenty-five years old at the time of the murder. He was not
so young that his brain was immature and still developing. Neither was he old
enough that he was unlikely to be a danger in the future.
f.
[Petitioner] did not show any remorse for his crime, changing his story
multiple times despite his DNA being all over the crime scene that he had
merely entered the home for a drink of water.
g.
There was no psychiatric testimony indicating any mental health issues or
impairments.
99.
[Petitioner’s] contrary evidence - that he was not violent when he was incarcerated and
that he was an artist - was not so strong that the jury could not reasonably conclude
[Petitioner] would be a future danger.
100.
Because the evidence was legally sufficient to sustain the jury’s finding on Special
Issue 1, appellate counsel was not deficient for failing to raise it on appeal. See
Burger, 483 U.S. at 784.
101.
[Petitioner] has not shown a reasonable probability that he would have prevailed on
appeal. Accordingly, he has not shown he was prejudiced by counsel’s decision not
to raise the issue.
102.
[Petitioner] did not receive ineffective assistance of counsel as to Ground 5.
5 SHCR 1527-28. The TCCA subsequently denied relief based on the trial court’s findings and
conclusions, and its own review. Ex parte Chanthakoummane, 2013 WL 363124, at *1.
48
“When a habeas petitioner asserts that the evidence presented to the state court was insufficient
to find future dangerousness, the limited question before a federal habeas court is whether the state
courts’ decision to reject that claim was an objectively unreasonable application of the clearly
established law set out in Jackson.” White v. Dretke, 126 F. App’x 173, 177 (5th Cir.), cert. denied,
546 U.S. 940 (2005). “Under Jackson, a conviction is constitutional if, ‘after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Id. (citing Jackson, 443 U.S. at 319). Under
Texas’ substantive law, “the circumstances of the charged offense may alone be sufficient to support
an affirmative finding of future dangerousness.” Id. As such, a rational jury could have answered
Special Issue 1 in the present case in the affirmative based solely on the circumstances of the charged
offense.
Nonetheless, the findings of the state habeas court went far beyond just the circumstances of
the charged offense in discussing the Keeton factors. Each of the state court findings are supported
by the record. In light of the evidence, appellate counsel was not deficient for failing to raise the issue
on appeal. Once again, he was not required to press a frivolous point. Moreover, Petitioner has not
shown prejudice. Petitioner has not satisfied his burden of showing that his appellate counsel was
ineffective on this issue. Furthermore, Petitioner has not shown, as required by 28 U.S.C. § 2254(d),
that the state court findings resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United States,
or resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Finally, he failed to overcome the doubly deferential
standard that must be afforded to counsel in the context of § 2254(d). See Richter, 131 S. Ct. at 788.
Relief must be denied on claim number six.
49
Claim Number 7:
Petitioner’s appellate counsel rendered ineffective assistance of
counsel contrary to the Sixth and Fourteenth Amendments to the United States
Constitution by failing to challenge the admissibility of A. P. Merillat’s testimony.
In claim number seven, Petitioner alleges that his appellate counsel was ineffective for failing
to challenge the testimony of A. P. Merillat. The claim was presented as ground number six in the
state habeas corpus proceedings. Petitioner notes that the State presented the testimony of Merillat,
an investigator with the Special Prosecution Unit, during the sentencing phase of the trial. Merillat
testified about the classification system in the Texas penitentiary and the occurrence of violence in
prison. 27 RR 30-31. The defense objected to his testimony because he was not properly qualified
as an expert in this area and his testimony was unfairly prejudicial under Rule 403. 27 RR 59-60. The
trial court overruled the defense objections, and Merillat testified that capital murder inmates who
receive life without parole still have the potential to be a danger to the community. Petitioner stressed
that his challenge to the admissibility of Merillat’s testimony was properly preserved, but appellate
counsel failed to raise the issue on appeal. In support of his claim, Petitioner cites two cases where
the TCCA overturned death sentences on the basis of testimony provided by Merillat. Velez v. State,
No. AP-76,051, 2012 WL 2130890, at *31-33 (Tex. Crim. App. 2012) (unpublished); Estrada v.
State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010).
Estrada involved a capital murder case where the defendant was convicted on December 12,
2005. Estrada, 313 S.W.3d at 279. Merillat testified during the sentencing phase that, “after 10 years
of G-3 status, a capital murderer who had been sentenced to life without parole could earn a lower, less
restrictive, G classification status than a G-3 status.” Id. at 286. During deliberations, the jury sent
out two notes about such testimony. Id. The TCCA observed that the testimony was false in light of
a new 2005 TDCJ regulation, judicially noticed by the Estrada Court, that “unambiguously shows,
‘Effective 9/1/05, offenders convicted of Capital Murder and sentenced to ‘life without parole’ will
50
not be classified to a custody less restrictive than G-3 throughout their incarceration’ (it appears that
before September 1, 2005, a sentenced-to-life-with-the -possibility-of-parole capital murderer could
have obtained a lower and less restrictive G-3 status after ten years).” Id. at 287. The TCCA
remanded the case for a new punishment phase with the finding that “there is a fair probability that
appellant’s death sentence was based upon Merillat’s incorrect testimony as evidenced by the jury’s
notes.” Id.
It is noted that Merillat testifying as a witness has been discussed in numerous cases decided
by the TCCA, both before and after the decisions issued in Estrada and Velez. See, e.g., Escobar v.
State, No. AP-76,571, 2013 WL 6098015, at *27-28 (Tex. Crim. App. 2013); Ex parte Swain, No.
WR-64,437-02, 2012 WL 5452217, at *1 (Tex. Crim. App. 2012); Martin v. State, No. AP-76,317,
2012 WL 5358862, at *8 (Tex. Crim. App. 2012). In all, by the time this opinion was being prepared,
Merillat has been discussed in seventeen decisions issued by the TCCA. In Swain, the TCCA observed
that applicant’s offense and trial occurred prior to the effective date of the regulation that was the
subject of Merrillat’s testimony in Velez and Estrada; thus, the holdings in those cases did not affect
applicant’s case. Swain, 2012 WL 5452217, at *1. In another case, the TCCA noted that it had upheld
Merrillat’s testimony as reliable and relevant to the future dangerousness issue concerning the
opportunities for violence in prison society, however, it had remanded Estrada for a new punishment
phase due to Merillat’s “unintentionally inaccurate testimony concerning reclassification of capitalmurder inmates.” Gobert v. State, No. AP-76,345, 2011 WL 5881601, at *6 (Tex. Crim. App. 2011).
In the present case, Merillat was apparently familiar with the 2005 change in the TDCJ
regulation by the time he testified in October 2007. He testified that if a person is convicted of capital
murder and given a “life without parole sentence, he will always be G-3,” while an inmate sentenced
to simply a life sentence “only has to spend 10 years as a G-3 inmate before he’s eligible to promote
51
up to G-2 or G-1.” 27 RR 46-47. In light of Gobert, it is clear that the TCCA was of the opinion that
Merillat was an expert although his testimony in Estrada was incorrect. It is also clear that his
testimony in the present case did not repeat the same type of incorrect statement he made in Estrada.
With this background information established by the time the state habeas court considered
Petitioner’s case, the state habeas court issued the following findings regarding Merillat’s testimony
in this case:
103.
In Ground 6, [Petitioner] complains his appellate counsel was ineffective for failing to
raise a complaint that A. P. Merillat was not qualified as an expert on prison
classification. [1 SHCR 90-95].
104.
A. P. Merillat testified that he was a senior investigator with the Special Prosecution
Unit, which assists with the prosecution of crimes committed in prisons around the
state. 27 RR 61-64. He had testified as an expert, written articles, written books, and
lectured, all on the topic of the inmate classification system used by the Texas
Department of Criminal Justice.
105.
Merillat testified regarding the classification system currently used by TDCJ, including
how prisoners are classified upon arrival and what will cause a change in classification.
27 RR 67-73. He also testified that there have been 148 murders and numerous other
violent offenses in Texas prisons since 1984, including offenses against other inmates,
guards, staff members, and visitors. 27 RR 78-81.
106.
Merillat’s testimony regarding the inmate classification system described the
application of a concrete rule and was admissible as fact testimony.
107.
Merillat’s testimony regarding the possibility for violence in prison was admissible as
fact testimony. See Lucero v. State, 246 S.W.3d 86, 97 (Tex. Crim. App. 2008)
(approving admission of similar testimony regarding inmates’ opportunities for
violence).
108.
Merillat was qualified to testify as an expert based on his nineteen years of experience
in the SPU, as well as his writings and teachings on the subject. See Coble v. State,
330 S.W.3d 253, 287 (Tex. Crim. App. 2010) (finding Merillat’s testimony admissible
as rebuttal “educator expert” testimony).
109.
Because Merillat’s testimony was admissible, an appeal on this issue would not have
been successful. [Petitioner] has not shown that his appellate counsel was deficient for
failing to raise the issue, nor has he demonstrated prejudice.
52
110.
Merillat did not testify that [Petitioner’s] classification status could improve. Cf.
Estrada v. State, 313 S.W.3d 274, 286-87 (Tex. Crim. App. 2010) (reversing for new
punishment hearing where Merillat testified incorrectly that a life-without-parole
inmate could improve from G3 to G2).
111.
[Petitioner] did not receive ineffective assistance as to Ground 6.
5 SHCR 1528-29. The TCCA subsequently denied relief based on the trial court’s findings and
conclusions, and its own review. Ex parte Chanthakoummane, 2013 WL 363124, at *1.
All of the findings are based on facts contained in the record. Petitioner’s appellate brief was
filed on May 22, 2009. By then, the TCCA had already affirmed convictions in capital murder cases
where Merillat was used by the State as an expert. Threadgill v. State, 146 S.W.3d 654, 670-71 (Tex.
Crim. App. 2004); Sprouse v. State, No. AP-74,933, 2007 WL 283152, at *4-5 (Tex. Crim. App.
2007) (approving the use of Merillat as an expert); Espada v. State, No. AP-75,219, 2008 WL
4809235 (Tex. Crim. App. 2008) (approving the use of Merillat as an expert on classification).
Moreover, as was also noted by the state habeas court, the type of testimony offered Merillat had
already been approved by the TCCA in Lucero. By the time Petitioner’s appellate counsel submitted
his brief, it was abundantly clear that any complaint presented on appeal about Merillat’s qualifications
would have been frivolous and counsel was not required to raise frivolous claims on appeal. It is
further noted that Estrada and Velez were decided after Petitioner’s appellate counsel had already
submitted his brief. As such, he did not have any basis for mentioning cases that had not yet been
decided. Moreover, since Merillat did not repeat in this case the same type of erroneous testimony
that he made in Estrada, Petitioner cannot show prejudice based on that type of erroneous testimony.
Overall, Petitioner has not satisfied his burden of showing ineffective assistance of appellate counsel
on this ground.
53
The Court would add that the focus of Petitioner’s present claim concerns whether Merillat
should have been allowed to testify under Texas law. In the course of reviewing state proceedings,
a federal court does “not sit as a super state supreme court to review error under state law.” Wood v.
Quarterman, 503 F.3d 408, 414 (5th Cir. 2007); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983),
cert. denied, 469 U.S. 1067 (1984). The Fifth Circuit considered the propriety of another member of
the SPU testifying in Fuller v. Johnson, 114 F.3d 491 (5th Cir. 1997). The Fifth Circuit found that the
issues raised by the petitioner “are not constitutional issues but evidentiary issues, properly considered
under the Texas Rules of Criminal Evidence on direct appeal. The fact that irrelevant testimony may
have been admitted at trial does not rise to constitutional error. . . . The jurisdiction of this court on
habeas review of a state prosecution is limited to constitutional issues under 28 U.S.C. § 2254(d)(1),
as amended by the AEDPA.” Id. at 498. In light of Fuller, a direct challenge to Merillat’s testimony
in the present petition would have been frivolous. On the other hand, Petitioner is entitled to present
an indirect challenge to the admissibility of his testimony under the rubric of an ineffective assistance
of counsel claim. See Richter, 131 S. Ct. at 788. However, as was previously explained, Petitioner’s
appellate attorney was not ineffective for failing to raise this issue on appeal. Furthermore, he failed
to show, as required by 28 U.S.C. § 2254(d), that the state court findings resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law as determined
by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceedings. Finally, he
failed to overcome the doubly deferential standard that must be afforded to counsel in the context of
§ 2254(d). See Richter, 131 S. Ct. at 788. Relief must be denied on claim number seven.
Claim Number 8:
Petitioner’s appellate counsel rendered ineffective assistance of
counsel contrary to the Sixth and Fourteenth Amendments to the United States
54
Constitution by failing to challenge the denial of Petitioner’s motion to suppress his
statement.
Claim Number 9:
Petitioner’s trial counsel rendered ineffective assistance of counsel
contrary to the Sixth and Fourteenth Amendments to the United States Constitution by
failing to lodge a specific objection to the voluntariness of his Miranda5 waiver during the
suppression hearing.
In claims eight and nine, Petitioner alleges that both his trial and appellate attorneys were
constitutionally ineffective for failing to challenge the admissibility of his confession. The record
shows that Petitioner was arrested and transported to the McKinney Police Department for questioning.
22 RR 63. Officer Joe Ellenburg placed Petitioner in an interview room and read him his Miranda
warnings. Id. at 68. Officer Norton and Sergeant Riley proceeded to conduct a videotaped
interrogation of Petitioner. During the interrogation, Petitioner admitted: (1) that his car broke down
in front of the model home where Walker was murdered; (2) that he entered the model home to try and
call for assistance; (3) that he went into the kitchen and tried to get a drink of water from the sink, but
could not because the faucet did not work; (4) that he then left and did not see anyone else in the home;
(5) that his blood was likely found on the sink because his hand had a cut on it that may have shed
blood on the faucet; and (6) that as he left the home, a couple approached him and asked if he was
“Chan Lee.” Id. at 88-90.
Trial counsel filed a pretrial motion to suppress the statement challenging both the
voluntariness of Petitioner’s confession and the adequacy of the Miranda warning. The trial court
conducted a hearing on the motion. Both Ellenburg and Norton testified. 2 RR 14-69. Each testified
that (1) Petitioner understood his rights; (2) he did not appear to be under the influence of drugs or
alcohol; and (3) he responded appropriately to what they were telling him. Id. at 20, 55. Officer
5
Miranda v. Arizona, 384 U.S. 436 (1966).
55
Ellenburg described Petitioner as cooperative and “willing to talk.” Id. at 42. Ultimately, Petitioner
agreed to waive his rights and talk to the officers without consulting an attorney or having an attorney
present. Id. at 22-23, 31; see also id. at 56-57 (testimony that Petitioner never asked for an attorney
or attempted to stop the interview). In light of the evidence, the trial court denied the motion to
suppress. Id. at 69.
Petitioner complains that trial counsel failed to make a specific objection at the suppression
hearing to the validity of the Miranda warning. He admitted that counsel’s line of questioning of
Officer Ellenburg at the suppression hearing was sufficient to put the State on notice that he was
challenging the invalidity of the Miranda waiver, but he complained that his attorney did not make a
specific legal objection on that ground. He argues that his trial attorney was ineffective for that reason.
He further alleges that his appellate attorney was ineffective for failing to raise the invalidity of his
Miranda waiver and the involuntariness of his confession issues on appeal.
Miranda holds that “the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at 444.
The Supreme Court accordingly held that prior to custodial interrogation a suspect must be informed:
1) that he has the right to remain silent
2) that anything he says can be used against him in court
3) that he has the right to consult with counsel prior to questioning
4) that he has a right to have counsel present at the interrogation, and
5) that if he cannot afford an attorney, one will be appointed for him.
Id. at 468-70. If an individual indicates in any manner, at any time prior to or during questioning, that
he wishes to remain silent, and/or that he wants an attorney, the interrogation must cease. Id. at 474.
However, a suspect’s invocation of either his right to remain silent or his right to counsel must be
unambiguous. Berghuis v. Thompkins, 560 U.S. 370, 381 (2010).
56
“Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights conveyed in the
warnings ‘provided the waiver is made voluntarily, knowingly and intelligently.’” Moran v. Burbine,
475 U.S. 412, 421 (1986) (quoting Miranda, 384 U.S. at 444, 475). The inquiry has two dimensions:
First, the relinquishment of the right must have been voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it. Only if the totality of the
circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that the Miranda rights have been
waived.
Moran, 475 U.S. at 421 (internal quotations and citations omitted). “Once it is determined that a
suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand
mute and request a lawyer, and that he was aware of the State’s intention to use his statements to
secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Id. at 422-23.
It is not enough for the State to establish that Miranda warnings were given and that “the accused made
an uncoerced statement;” “[t]he prosecution must make the additional showing that the accused
understood those rights.” Berghuis, 560 U.S. at 384 (citations omitted).
The present grounds for relief were presented as grounds seven and eight in the state habeas
corpus proceedings. In light of the evidence and case law regarding Miranda issues, the state habeas
court made the following findings:
112.
In Ground 7, [Petitioner] complains his appellate counsel was ineffective for not
arguing that his statement was inadmissible because he did not affirmatively waive his
right to remain silent. [1 SHCR 97-98]. In Ground 8, he complains that his trial
counsel was ineffective for not objecting specifically enough to the admission of his
confession. [1 SHCR 100-01].
113.
Mere silence is not an invocation of a defendant’s waiver of his right to remain silent,
and such a waiver may be inferred after a defendant receives Miranda warning,
understands them, and responds to questioning from an officer. Berghuis v.
Thompkins, 130 S.Ct. 2250 (2010); Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App.
2010).
57
114.
[Petitioner] received Miranda warnings, acknowledged that he understood them, and
answered every question asked by the detectives. SX 76 (written warnings initialed
by [Petitioner]); SX 77 (videotape of interrogation). This was a valid waiver of rights
under Thompkins.
115.
Because an objection regarding [Petitioner’s] statement would not have been
successful at trial or on appeal, [Petitioner] has not shown that his counsel were
deficient for failing to raise the issue, nor has he demonstrated prejudice.
116.
[Petitioner] did not receive ineffective assistance of as to Grounds 7 or 8.
5 SHCR 1529. The TCCA subsequently adopted the findings in denying Petitioner’s state application
for a writ of habeas corpus. The findings and conclusions are supported by the record. Neither trial
counsel nor appellate counsel were ineffective for failing to raise a frivolous issue. Claims eight and
nine lack merit for the additional reason that Petitioner cannot show prejudice.
Claims eight and nine should also be denied because Petitioner has not shown, as required by
28 U.S.C. § 2254(d), that the state court findings resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by the Supreme
Court of the United States, or resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the state court proceedings. Finally, he failed to
overcome the doubly deferential standard that must be afforded to counsel in the context of § 2254(d).
See Richter, 131 S. Ct. at 788. Petitioner is not entitled to relief on claims eight and nine.
Claim Number 10: The refusal of the Texas courts to properly define the terms and
phrases in the future dangerousness special issue was a decision contrary to, and an
unreasonable application of clearly established constitutional law in that Petitioner was:
(1) deemed eligible for the imposition of death as a penalty by the use of an
unconstitutionally vague aggravator; and (2) Petitioner was selected for the death
penalty without giving full consideration and effect to record evidence of his mitigating
circumstances.
Claim Number 11: Petitioner’s appellate counsel rendered ineffective assistance of
counsel contrary to the Sixth and Fourteenth Amendments to the United States
Constitution by failing to brief the unconstitutionality of the Texas death penalty scheme
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because it is based upon vague statutory terms and does not properly channel the jury’s
discretion.
Claim Number 12: The trial court violated the Eighth and Fourteenth Amendments
to the United States Constitution by failing to instruct the jury that a “No” vote by a
single jury member would result in a Life sentence instead of a death sentence despite
the statutory requirement of ten votes for a “No” answer to Article 37.071 § 2(b)(1) or
for a “Yes” vote to Article 37.071 § 2(e).
Claim Number13: Petitioner’s appellate counsel rendered ineffective assistance of
counsel contrary to the Sixth and Fourteenth Amendments to the United States
Constitution by failing to brief the “10-12" Texas death penalty scheme.
Claim Number 14: The Texas capital punishment scheme violates the Eighth and
Fourteenth Amendments to the United States Constitution because the mitigation special
issue does not allocate a burden of proof.
Claim Number 15: Petitioner’s appellate counsel rendered ineffective assistance of
counsel contrary to the Sixth and Fourteenth Amendments to the United States
Constitution by failing to brief that the Texas death penalty scheme does not allocate a
burden of proof for mitigation special issues.
Petitioner makes three general challenges to the Texas death penalty scheme as follows: (1)
the future dangerousness issue contains several vague terms and does not properly channel the jury’s
discretion (claims 10-11); (2) the trial court erred in failing to instruct the jury on the “10-12" Rule
(claims 12-13); and (3) the Texas death penalty scheme violates the Constitution because it does not
allocate a burden of proof as to the mitigation special issue. All three claims were also presented in
terms of ineffective assistance of appellate counsel. For reasons stated below, the three claims and the
corresponding ineffective assistance of appellate counsel claims lack merit in light of clearly
established federal law.
Claim number ten concerns the future dangerousness special issue. The future dangerousness
special issue is part of the Texas capital punishment scheme that has been repeatedly upheld by the
Supreme Court against similar challenges. See Johnson v. Texas, 509 U.S. 350, 373 (1993); Jurek
v. Texas, 428 U.S. 262 (1976); see also Pulley v. Harris, 465 U.S. 37, 50 n.10 (1984) (stating that
59
Texas’ punishment issues are not impermissibly vague because they have a “common sense core of
meaning”). The Fifth Circuit has likewise repeatedly rejected claims complaining that these terms
were not defined. Sprouse v. Stephens, 748 F.3d 609, 622-23 (5th Cir.) (citing Turner, 481 F.3d at
300), cert. denied, 135 S. Ct. 477 (2014); Paredes v. Quarterman, 574 F.3d 281, 294 (5th Cir. 2009)
(finding that the terms used in the future dangerousness special issue “have a plain meaning of
sufficient content that the discretion left to the jury [is] no more than that inherent in the jury system
itself”), cert. denied, 131 S. Ct. 1050 (2011); Hughes v. Johnson, 191 F.3d 607, 615-16 (5th Cir.
1999), cert. denied, 528 U.S. 1145 (2000); Milton v. Procunier, 744 F.2d 1091, 1095 (5th Cir. 1984)
(“Under Texas law, these terms are sufficiently common that their definition is not required in a jury
charge under the capital murder statute.”), cert. denied, 471 U.S. 1030 (1985). With respect to his
claim that the terms were so vague that they did not channel the jury’s discretion, the Supreme Court
has observed that a jury may be given “unbridled discretion in determining whether the death penalty
may be imposed” during the punishment phase of a trial. Tuilaepa v. California, 512 U.S. 967, 979-80
(1994). In light of Tuilaepa, the Fifth Circuit has rejected failure to channel arguments raised by Texas
death row inmates. See, e.g., Turner, 481 F.3d at 299. Petitioner’s complaint that the terms used in
the future dangerousness special issue were not defined lacks merit in light of clearly established
federal law. Claim number ten lacks merit, and the law was clearly established on this issue by the
time Petitioner’s appellate counsel filed his brief. Counsel was not ineffective for failing to raise a
frivolous claim; thus, claim number eleven lacks merit.
In claim number twelve, Petitioner argues that the trial court violated the Eighth and Fourteenth
Amendments by failing to instruct the jury that a “No” vote by a single jury member would result in
a life sentence instead of death despite the statutory requirement of 10 votes for a “No” answer to
article 37.071 § 2(b)(1) or for a “Yes” vote to article 37.071 § 2(e). The Texas procedure “is
60
commonly known as the ‘10-12 Rule.’” Blue, 665 F.3d at 669 (citations omitted). The Fifth Circuit
has regularly rejected challenges to the 10-12 Rule. Reed, 739 F.3d at 779; Blue, 665 F.3d at 669-670;
Druery v. Thaler, 647 F.3d 535, 542-43 (2011), cert. denied, 132 S. Ct. 1550 (2012). The Fifth Circuit
provided the following explanation in rejecting such challenges:
[Petitioner] contends that Texas’s system of instructing punishment-phase jurors of the
consequences of a failure to agree on a sentence violates the Eighth Amendment. Article
37.071 requires capital jurors to be instructed that they can answer “Yes” to the future
dangerousness issue and “No” to the mitigation special issue only if all twelve of them agree
to do so and that they can give the opposite answers only if ten or more of them agree to do so.
If the jurors answer “No” to the future-dangerousness issue or “Yes” to the mitigation issue,
the defendant is sentenced to life without parole. The same result obtains if the jurors fail to
agree on an answer, but the statute prohibits the court and the parties from informing the jurors
of the effect of their failure to agree. This is commonly known as the 10-12 Rule. . . .
[Petitioner] contends that the 10-12 Rule is unconstitutional because it affirmatively misleads
jurors about their role in the sentencing process. . . . However, the Supreme Court held in
Jones v. United States that a failure to instruct the jury as to the consequences of deadlock in
no way affirmatively misleads the jury about its role in the sentencing process.6 This Court has
concluded that Jones insulates the 10-12 Rule from constitutional attack. And it has also held
that the 10-12 Rule passes constitutional muster independently of the holding announced in
Jones. Because no clearly established federal law invalidates the 10-12 Rule or calls its
constitutionality into doubt, [Petitioner] is not entitled to a COA on this issue.
Blue, 665 F.3d at 669-70. The Fifth Circuit has also rejected such challenges in a number of
unpublished opinions. See, e.g., Parr v. Thaler, 481 F. App’x 872, 878-79 (5th Cir. 2012), cert.
denied, 133 S. Ct. 842 (2013); Greer, 380 F. App’x at 389. Claim number twelve lacks merit in light
of clearly established federal law. Similarly, Petitioner’s corresponding ineffective assistance of
appellate counsel claim lacks merit. Counsel was not ineffective for failing to raise a frivolous claim;
thus, claim number thirteen should be denied.
In claim number fourteen, Petitioner argues that the Texas capital punishment scheme violates
the Constitution because the mitigation issue does not allocate a burden of proof. This ground for
6
527 U.S. 373, 381-82 (1999).
61
relief has likewise been rejected by the Fifth Circuit. Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.)
(“No Supreme Court or Circuit precedent constitutionally requires that Texas’s mitigation special issue
be assigned a burden of proof.”), cert. denied, 546 U.S. 848 (2005). Since Rowell was decided, the
Fifth Circuit has repeatedly held that claims regarding the failure to assign either party the burden of
proof on the mitigation special issue are meritless. Blue, 665 F.3d at 668; Druery, 647 F.3d at 546;
Adams v. Thaler, 421 F. App’x 322, 334 (5th Cir.), cert. denied, 132 S. Ct. 399 (2011); Kerr v.
Thaler, 384 F. App’x 400, 403 (5th Cir. 2010), cert. denied, 131 S. Ct. 907 (2011). See also Avila v.
Quarterman, 560 F.3d 299, 315 (5th Cir.) (The Fifth Circuit observed that it was bound by its
precedent on this issue), cert. denied, 558 U.S. 993 (2009). Most recently, the Fifth Circuit rejected
a claim that counsel was ineffective for failing to mount a challenge regarding the burden of proof
issue as it relates to mitigating evidence. Sprouse, 748 F.3d at 623. Claim number fourteen lacks
merit in light of clearly established federal law. Similarly, Petitioner’s corresponding ineffective
assistance of appellate counsel claim lacks merit. Counsel was not ineffective for failing to raise a
frivolous claim; thus, claim number fifteen should be denied.
In light of the established case law, the state habeas court issued the following findings in
rejecting these claims:
118.
[Petitioner’s] complaints have been repeatedly rejected by the Supreme Court of the
United States and the Texas Court of Criminal Appeals. See., e.g. Jurek v. Texas, 428
U.S. 262, 275 (1976) (future dangerous issue); Crutsinger v. State, 206 S.W.3d 607,
613 (Tex. Crim. App. 2006) (10-12 Rule); Dreury v. State, 225 S.W.3d 491, 509
(Tex. Crim. App. 2007) (burden of proof on mitigation); Rayford v. State, 125 S.W.3d
521, 534 (Tex. Crim. App. 2003) (probability).
119.
Counsel was not deficient for declining to raise issues on appeal that have been
repeatedly rejected by the courts. See Burger, 483 U.S. at 784 (noting the importance
of strategy in choosing which claims to advance on appeal).
120.
[Petitioner] cannot be prejudiced by appellate counsel’s failure to raise these issues
because, if the law later changes so that these issues have merit, he can raise them in
62
a subsequent writ. Ex parte Hood, 211 S.W.3d 767, 775-76 (Tex. Crim. App. 2007),
overruled on other grounds, 304 S.W.3d 397 (Tex. Crim. App. 2010).
121.
[Petitioner] did not receive ineffective assistance . . .
5 SHCR 1530. The TCCA adopted these findings in denying Petitioner’s state application for a writ
of habeas corpus. Petitioner has not shown, as required by 28 U.S.C. § 2254(d), that the state court
findings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States, or resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceedings. Relief should be denied with respect to claims ten through fifteen.
Claim Number 16: The trial court’s grossly impartial comments to the assembled jury
venire praising the prosecution subjected Petitioner to cruel and unusual punishment
and a deprivation of his rights to a fair trial, the presumption of innocence, and the
effective assistance of counsel in violation of the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
Petitioner’s final claim concerns comments made by the trial judge during the opening portions
of voir dire. Below are excerpts of the trial judge’s opening remarks to the jury venire:
THE COURT: It’s my privilege to introduce you to your elected district attorney,
Judge John Roach.
JUDGE ROACH: Good morning.
THE VENIRE PANEL: Good morning.
THE COURT: Judge Roach is a very distinguished jurist in his own right. Some of
you probably know that not only is he serving now as your district attorney, but prior to that
he was the presiding judge of the 199th District Court here in Collin County for quite a number
of years. And also I think, Judge Roach, weren’t you a justice on the court of appeals in Dallas
for some time?
JUDGE ROACH: Yes, sir.
THE COURT: So he’s had a very distinguished career. Not only that but Judge Roach
raises his kids right. They’re all lawyers. In fact, he has a daughter and a son that are both
attorneys and his son just recently was elected to the 296th District Court here in Collin County
63
as its judge, and he took office January 1 of this year and just has really had a good time and
really doing a good job in the 296th. So we’re glad to have Judge Roach up there. But my
favorite Roach that’s a lawyer, Judge, is your daughter-in-law.
JUDGE ROACH: Yes, sir, I’m sure.
THE COURT: John Jr.’s wife Laura. She is a delight. I always look forward to
having her in court.
Okay, sitting next to Judge Roach there is his very able first assistant, Greg Davis.
MR. DAVIS: Good morning.
THE COURT: Greg is a very accomplished -- excuse me, Greg. I’ll call you Mr.
Davis. I’ll be a little more formal. I’m familiar with him because we’ve tried a lot of cases
together. In fact, we tried a murder case just about three weeks ago; wasn’t it?
MR. DAVIS: Yes, sir.
THE COURT: You’ll find that he’s a very, very professional and very good
prosecutor. I always enjoy trying cases with him.
Seated to the counsel table to my left over here and now your right is Mr. Steve Miears.
MR. MIEARS: Morning, ladies and gentlemen.
THE VENIRE PANEL: Good morning.
THE COURT: Mr. Miears and I have also tried cases together, and he will be lead
counsel in this case, and then seated at the end of the table and assisting Mr. Miears is Mr.
Keith Gore.
MR. GORE: Good morning.
THE COURT: A very fine young criminal defense lawyer. In fact, Mr. Gore and Mr.
Davis and I all tried that murder case together. You did a very fine job, Keith.
5 RR 24-26. Petitioner complains that the trial court delivered a seemingly endless shower of praise
upon the prosecution team and their respective families. He argues that these gratuitous comments by
the trial court unleveled the playing field and improperly enhanced the State in the eyes of the jury.
64
Petitioner did not complain about the trial court’s comments until three days after they were
made. The trial court overruled the objections. On appeal, the TCCA observed that a contemporaneous
objection is required by Texas Rules of Appellate Procedure 33.1. Chanthakoummane v. State, 2010
WL 1696789, at *11. The TCCA held that the objection was not timely in order to preserve error for
appeal. Id.
Despite finding that Petitioner failed to preserve the error, the TCCA went on to discuss the
merits of the claim as follows:
It is common for veniremembers to be introduced to prosecutors and defense counsel during
voir dire examination (although not necessarily to this degree), just as it is common to ask
veniremembers if they know any of the attorneys involved in the case. Here, Judge Parker
complimented both the prosecutors and defense counsel when he introduced them to the jury.
And his reference to the district attorney as “Judge John Roach” did not go so far as to taint
the presumption of innocence.
Id. In the end, however, the TCCA held that a “contemporaneous objection was required to preserve
error, and [Petitioner] failed to make one.” Id. The point of error was overruled. Id.
The Director argues that the claim is procedurally barred in light of the decision by the TCCA.
The argument is persuasive. The Fifth Circuit has held that the “procedural-default doctrine precludes
federal habeas review when the last reasoned state-court opinion addressing a claim explicitly rejects
it on a state procedural ground.” Matchett, 380 F.3d at 848. The Fifth Circuit has consistently held
that the Texas contemporaneous objection rule constitutes an adequate and independent ground that
procedurally bars federal habeas review of a petitioner’s claims. Turner, 481 F.3d at 301; Cardenas,
405 F.3d at 249; Dowthitt, 230 F.3d at 752) (“[T]he Texas contemporaneous objection rule is strictly
or regularly applied evenhandedly to the vast majority of similar claims, and is therefore an adequate
procedural bar.”).
More recently, the Fifth Circuit once again observed that the “Texas
contemporaneous objection rule constitutes an adequate and independent state ground that procedurally
65
bars federal habeas review.” Doyle v. Stephens, 535 F. App’x 391, 393 (5th Cir. 2013) (citing Fisher
v. Texas, 169 F.3d 295, 300 (5th Cir. 1999)), cert. denied, 134 S. Ct. 1294 (2014). A petitioner may
overcome the procedural bar by demonstrating cause for the default and actual prejudice as a result of
the alleged violation of federal law, or by demonstrating that the failure to consider the claim would
result in a fundamental miscarriage of justice. Id. (citing Coleman, 501 U.S. at 750).
Petitioner did not make a contemporaneous objection as required by Texas law. In the present
habeas proceeding, after acknowledging that the TCCA found that the error was not preserved,
Petitioner did nothing more than complain anew about the trial judge’s comments. He did not make
any effort to overcome the procedural bar. Stated differently, he failed to demonstrate cause for the
default and actual prejudice, or that the failure to consider the claim would result in a fundamental
miscarriage of justice; thus, the claim is procedurally barred.
The Court would add that the TCCA’s alternative finding that “[i]t is common for
veniremembers to be introduced to prosecutors and during voir dire examination (although not
necessarily to this degree)” appropriately observed that the trial judge’s comments exceeded the norm;
nonetheless, the Court cannot say that the TCCA’s ultimate conclusion that the comments “did not go
so far as to taint the presumption of innocence” was unreasonable. The Court is of the opinion, and
so finds, that the trial court’s comments during voir dire did not “reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540,
555 (1994). It is noted that a federal court may not grant relief “unless each ground supporting the
state court decision is examined and found to be unreasonable under AEDPA.” Wetzel, 132 S. Ct. at
1199 (emphasis in original). Petitioner has not shown that either conclusion provided by the TCCA
was unreasonable. He has not shown that he is entitled to federal habeas corpus relief based on claim
number sixteen.
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Conclusion
Having carefully considered all of Petitioner’s claims, the Court is of the opinion, and so finds,
that he has not shown that he is entitled to federal habeas corpus relief and his petition should be
denied.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a federal habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(A). Although Petitioner 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
67
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 Petitioner’s § 2254 petition on
substantive or procedural grounds, nor find that the issues presented are adequate to deserve
encouragement to proceed. Miller-El, 537 U.S. at 327 (citing Slack, 529 U.S. at 484). The Court thus
finds that Petitioner 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.
So ORDERED and SIGNED this 20th day of March, 2015.
__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
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