Runnels v. Davis, Director TDCJ-CID

Filing 76

ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION and TRANSFERRING CASE TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT: Habeas corpus petition is successive, and the clerk is directed to transfer the matter to the Fifth Circuit Court of Appeals. (Fifth Circuit notified via copy of the Notice of Electronic Filing.) re: 73 Report and Recommendation (Ordered by Senior Judge Mary Lou Robinson on 10/31/2017) (awc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

TRAVIS TREVINO RLINNELS,

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Petitioner,

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LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,

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2:12-CY-0074-J
(death-penalty case)

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Respondent.

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ORDER OVERRULING OBJECTIONS.
ADOPTING REPORT AND RECOMMENDATION and
TRANSFERRING CASE TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
On October 13,2017, Travis Trevino Runnels filed his objections to the Magistrate Judge's
Report and Recommendation on Rule 60(b) Motion for Relief from Judgment (Doc. 73, "R&R"). See
Docs. 74 and 75 ("Objections"). This matter having come before this Court on consideration of said
objections, and followingade novo review of Runnels's Motion for Relief from Judgment under Rule
60(b) and related papers filed in this cause, it is the opinion of the Court that such objections be denied
in all respects. The Court further finds the findings and conclusions ofthe Magistrate Judge are correct
and adopts them as the findings and conclusions of the Court.

I.
The objections reassert the argument that prior federal habeas counsel, Mr. Don Vemay, should

have obtained a complete neuropsychological evaluation of Runnels in an effort to "unexhaust" the

ineffective-assistance-of-trial-counsel-claim ("IATC" claim) presented in the original federal petition.
The objections conclude that Mr. Vemay's failure to do so amounted to abandonment and structural
error

justifring 60(b) relief.t

See Fed. R.

Civ. P. 60(b). This conclusion, he asserts, is supported by the

subsequent actions taken by the Court of Appeals, as well as by the Court of Appeals's decision to stay

rehearing proceedings and sua sponte inform the parties of the actions it took.

A.

Alleged structural error due to abandonment by Mr. Vemay

Runnels's contention that Mr. Vernay "failed to perform atall" with respect to the IATC claim

is not supported by the record. While it is true that he did not have Runnels evaluated by a neuropsychologist, it is also true that, atthe time the petition was filed, the holding in Martinez v. Ryan,566

U.S.

1

(2012) did not apply to Texas inmates. See lbarra v. Thaler,687 F.3d 222,227 (5th Cir. 2Ol2).

Exhausted claims were (and are) reviewed on the record that was before the state court, effectively
foreclosing the use of any new evidence, See Cullenv. Pinholster,563 U.S. 170, 185 (2011) (holding
that evidence introduced in federal court has no bearing on habeas review of claims decided on the

merits in state court).

Mr. Vernay nevertheless correctly anticipated the favorable outcome in Trevino v. Thaler, 133
S.

Ct. 1911 (2013) and raised

and supporting

a colorable

IATC claim using

the

Martinez exception to procedural bar

it with new evidence in the form of the state habeas

investigator's affidavit. He

simultaneously moved for leave to amend or supplement the petition once the Trevino opinion issued,
and he anticipated further factual development. See Doc. 18 ("Motion for Leave to File Preliminary

Petition for Post-Conviction Writ of Habeas Corpus, Subject to Subsequent Amendment and/or
lAlthough

the brief supporting the objections on page 2 misidentifies Mr. Vernay as state habeas counsel and misquotes
the R&R in that respect, this appears to be a typographical error, and Runnels does not otherwise dispute that Mr. Vemay was his
fe de ra I habeas counsel.

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Supplementation").
The banier faced by Mr. Vernay (and, incidentally, by current appointed counsel) is that this
Court found that the IATC claim was exhausted, not procedurally barred, and therefore not amenable

to relitigation and factual development under Martinez. The claim was therefore subject to review
under 28 U.S.C. 2254(d), which is limited to the state-court record alone. See Pinholster,563 U.S. at

r82.
Runnels asserts, however, that the Magistrate Judge erred in finding that the IATC claim raised
in the 60(b) motion is the same IATC claim that was presented to the state court and found by this Court
to have been exhausted. Objections at 5. He contends that Dr. John Fabian's2017 neuropsychological

report contains material and significant factual allegations that serve to fundamentally alter the claim,
thereby rendering

it

oounexhausted."

See Anderson v. Johnson,338 F.3d 382, 386 (5th Cir. 2003)

(holding, prior to Martinez, that dismissal for non-exhaustion is not required when evidence presented
for the first time in a habeas proceeding "supplements" but does not oofundamentally alter" the claim

presentedtothestatecourts);Grahamv.Johnson,94F.3d958,968(5thCir. 1996)(recognizingthat
a

petitioner fails to exhaust state remedies when he presents material additional evidentiary support to

the federal court that was not presented to the state court).

This argument does not avail Runnels in his efforts for Rule 60(b) relief. If Runnels is correct
that the presentation of Dr. Fabian's report is sufficient to fundamentally alter the claim previously
presented (which this Court does not hold), then by his own admission, he is raising a new claim that
was not presented in a prior application. Under these circumstances, the 60(b) motion is a second-orsuccessive petition subject to the limitations in 28 U.S.C. S 2244(b)(2). See Gonzalez v. Crosby,545

U.S. 524, 531-32 (2005) (holding that

a

Rule 60(b) motion that contains a claim previously omitted due

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to excusable neglect or that presents newly discovered evidence in support of a claim previously denied
is a successive habeas petition and should be treated accordingly). Because the Court of Appeals has

not authorized the successive habeas proceeding under section 2244(b), this Court does not have
jurisdiction to consider the claim.

B. Dr. Fabian's

report does not support equitable relief

Assuming for the sake of argument that Runnels's motion for Rule 60(b) relief is not

a

successive habeas application and that this Court has jurisdiction over the claim, the Court holds in the

alternative that Runnels has not made a case for equitable relief. He presents a 33-page affrdavit based
on a nenropsychological evaluation conducted by Dr. Fabian in

p.

l15.

April

and May of 2017

.

See Doc. 53-1

Dr. Fabian concluded that Runnels suffers from Attention Deficit Hyperactivity Disorder

(ADHD), Language-Based Learning Disorder (LBLD), and Post-Traumatic Stress Disorder (PTSD)
(due in part to years of incarceration). He also found evidence of addiction and dependence to alcohol
and cannabis prior to his incarceration (because he is not using drugs in prison). Dr. Fabian opined that

Runnels would have benefitted from treatment for these conditions in the nature of special education

for ADHD and LBLD, medication for ADHD, counseling for PTSD, and drug treatment. He also
believed the ADHD and LBLD could be treated in

a

prison environment and that such treatment would

have an impact on Runnels's impulsivity and cognitive functioning. Doc. 53-1, p.

l4l-43.

The report

is based on historical facts contained in the very same affidavits filed by Mr. Vernay in support of the

federal petition, which were originally obtained by state habeas counsel from Runnels's grandmother,

mother,brother,andtwocousins. Doc.53-1,p. 116; seeDoc. 17(PetitionandExhibits). Other
historical data considered by Dr. Fabian is, by all appearances, the same information gathered by trial
counsel's investigator, Kathy Garrison; Runnels identifies nothing new. Doc. 53-1, p. 116.
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Dr. Fabian's report is proffered to support the interrelated arguments that (1) trial counsel was

ineffective under the Sixth Amendment, (2) state habeas counsel was therefore ineffective under
Martinez, and (3) Mr. Vernay therefore abandoned Runnels in federal court, causing structural error.
The report does not, however, support the underlying substantive claim advanced by Runnels of
ineffective trial counsel.

Trial counsel had obtained a1993 psychological report from Runnels's juvenile probation file
stating that: Runnels had basically raised himself, lacked coping skills, has difficulty controlling his

behavior and may be aggressive under stress, has no family support, has communications problems,
lacks overall verbal skills for conversation, is uncooperative, has a hostile demeanor, is one-sided and

non-reciprocal in relationships, and has inflexible thinking and values, which makes him a difficult
candidate for therapeutic change. 4 SHRR

11

5- I 6.

Trial counsel also retained psychiatrist Lisa Clayton

and neuropsychologist Richard Fulbright to examine Runnels.

1 CR 68,

69. Dr. Clayton did not

provide helpful information and her report, if any, is not in the record. 4 SHRR 166, 184,202. Dr.
Fulbright submitted a report, but was unable to complete the full testing due to jail restrictions on his
physical access to Runnels.

The Magistrate Judge concluded that Dr. Fulbright's incomplete evaluation and the 1993
psychological evaluation, along with Dr. Clayton's results and other information known to the trial team
together support trial counsel'

s

strategic decision not to present

a

mental-health based defense. Runnels

argues that trial counsel could not have reasonably reached this strategic conclusion without a complete

evaluation from Dr. Fulbright, and he seems to assert that trial counsel abandoned a mental-health
defense because the testing could not be completed. These assertions are inconsistent with the facts in

the record and the deference required by law. In situations where counsel's investigation is less than

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complete, Strickland holds, "Strategic choices made after a less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the limitations on the

investigation." Stricklond v. Washington,466 U.S. 668,691(1984). o'In other words, counsel has a

duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unneces sary." Id.
Where, as here, the incomplete report of Dr. Fulbright assumedRvwrels had ADHD and related

executive-functioning deficits, and these assumptions were ultimately confirmed by Runnels's current
expert, Dr. Fabian, the reasonableness of trial counsel's chosen strategy is not undermined. Despite
Runnels's earlier assertion that Dr. Fabian's report is so materially different from prior evidence that

it fundamentally alters the claim for relief, he later concedes, correctly, that Dr. Fabian corroborates
Dr. Fulbright's suspicion that Runnels suffers from ADHD and related deficits in executive functioning.
Objections at6-7 ,8. In fact, Dr. Fabian corroborates other information known to trial counsel: Fabian,

like Fulbright, found fault in the education, juvenile justice, and prison systems for failing to provide
the psychological services Runnels obviously needed. And Dr. Fabian's diagnosis of LBLD, with its

attendant weaknesses in language and communication skills, is corroborated by findings in the 1993
evaluation that Runnels had communications problems and lacked overall verbal skills for conversation.

Runnels argues that, nevertheless, trial counsel was obligated to complete Dr. Fulbright's
evaluation and introduce evidence of ADHD and executive functioning deficits because it impacts "an

individual's ability to regulate behavior, control impulses, and process information." He asserts this
evidence would have had mitigating effect and aided the jury's understanding of the circumstances
surrounding the victim's death, and he points out that these conditions are treatable with medication and

psychological services. Objections at 7-8. Runnels cannot, however, pick and chose the evidence to

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support his claim of ineffective trial counsel and ignore evidence and consequences to the contrary. The
same evidence could be used by the prosecution to argue how dangerous Runnels would be

if he chose

not to take his medication or receive the necessary services. This aggravating effect would be enhanced

by these facts in Dr. Fulbright's report:

.

Runnels had become increasingly angry about his treatment at TDCJ.

.

Runnels stated that he planned to kill the victim.

.
.
.
.
.
.
.
.
.

Runnels reported that he had an argument with the victim the day before and
planned to kill the individual.
Runnels did not care about the consequences prior to assaulting the victim.
Runnels had tried to avoid altercations in prison during this time, and he stated,
"So if I had to do anything, I know it's justified, because I didn't do anything."

At the time, Runnels was serving a7D-year sentence for robberies and felt the
sentence was unfair because of his limited involvement in the crimes.
Runnels told his brother that he "can't stand" the police and correctional officers
and said, "I ain't going back to jail alive."

Runnels told his brother he felt he could not complete his sentence and that
oothere
has to be another way out."
Regarding the prison guards, Runnels told his brother that "these young white
guys can play with your life because you are locked up."
Runnels attempted suicide by overdose because he was "tired of prison"
Runnels reported that he becomes increasingly frustrated when left alone with
nothing to do, such as when he is in segregation, and that sometimes the only
way to entertain himself is with negative behaviors.

4 SHRR 167-72.
The above information, showing that Runnels planned the murder as an act of retaliation and
was strategically avoiding altercations so he could feel justified when they occur, flies in the face of a

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mental-health defense based on an inability to plan and control his impulses. This information, which

trial counsel could reasonably expect the State to use in rebuttal, is strong evidence that Runnels is not
a good candidate for a sentence of life imprisonment. The report makes clear his resistance to
institutionalization, which was already well-known to trial counsel. See 3 SHRR 164 (Runnels just
came to the point where he could take no more disrespect), 335 (Runnels would like a hung

death, he is not institutionalized or has an extreme problem with authority);

jury or

4 SHRR 50 (letter

describing Runnels's intolerance of the jail conditions he experienced while awaiting trial and stating,

"I'm letting you know this current situation will burn out and

lead to trouble for me."), 101 (Runnels's

future will not include living in prison and he does not want a life sentence). This aspect of Runnels's

mental state would have shed new light on the disciplinary violations against guards that were
introduced at trial and could have opened the door to other information kept from the jury, including

his efforts to organize inmates to enact changes through violence and bloodshed. 2 SHRR 14,34;3
SHRR 66, 101 (identifring Runnels's interest in organizing inmates), 134 (identiffing an "abundance

of stuff' to contend with in the TDCJ files about Runnels being o1ery anti-TDCJ" and organizing
inmates to resist, use aggression and violence and bloodshed").

Dr. Fabian's 2017 report confirms the information upon which trial counsel's strategy was
based, and Runnels's does not take into consideration the very negative information trial counsel would

have risked exposing to the

jury with

a mental-health based

defense. The Court, having weighed the

facts and circumstances of this case, determines that the claim lacks merit, the prior findings of the
Court are correct, the Magistrate Judge's recommendation is correct, and the demands ofjustice do not

justiff the relief

requested.

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C. The record in the Court of Appeals

does not dictate a different result

Finally, Runnels contends the Magistrate Judge improperly ignored the relevance ofthe actions
taken by the Court of Appeals

in 2016 regarding Mr. Vernay. The Magistrate

Judge gave due

consideration to these actions and correctly determined that they did not constitute a finding that Mr.

Vernay had abandoned Runnels during the earlier proceedings before this Court. As

it

stands, the

record before this Court is far from showing that Mr. Vemay "abandoned" Runnels during the original

federal habeas proceedings or that his representation amounted to "structural error." Beyond the
determinations of no abandonment and no structural error, it is not the function of the Court to assess

in hindsight the ways in which federal habeas counsel's representation could have been better.

See

generally Pinholster,563 U.S. at 189 (clariffing that the purpose of the Sixth Amendment effective
assistance guarantee is not to improve the quality of legal representation
defendants receive a fair

trial). The Court will not infer

but to

ensure that criminal

abandonment by Mr. Vernay from the Court

of Appeals's order, when Mr. Vernay's actions in this Court plainly refute that allegation.

II.
Pursuant to Rule 22 of the Federal Rules of Appellate Procedure and28 U.S.C.

$ 2253(c), this

Court finds that a certificate of appealability should be denied. Runnels has failed to show that
reasonable jurists

(l) would find this Court's

wrong," or (2) would find

"it

"assessment of the constitutional claims debatable or

debatable whether the petition states a valid claim of the denial of a

constitutional right" and "debatable whether [this Court] was correct in its procedural ruling." Slack

v.McDaniel,529U.S.473,484(2000);seeMiller-Elv.Coclcrell,537U.S.322,338(2003).

IfRunnels

files a notice of appeal, he may proceed in forma pauperis on appeal. 18 U.S.C. $ 3006A(dX7).

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m.
Runnels is either (1) raising a new, unexhausted claim of ineffective trial counsel, as he now
asserts, or (2) raising the same claim that was deemed exhausted and decided against him on the merits

under 5 2254(d), as held in the R&R. Either way, the Rule 60(b) motion is a second-or-successive

petition subject to the limitations in $ 22aa(b)(1) or (bX2). The Court therefore OVERRULES the
objections filed by Runnels, ADOPTS the findings and conclusions of the Magistrate Judge, and
TRANSFERS the Motion to the United States Court of Appeals for the Fifth Circuit as a second-orsuccessive petition.

In the alternative, the Court concludes Runnels has not presented evidence justifuing equitable

relief and DENIES the Motion for Relief from Judgment under Rule 60(b). (Doc. 52.)
IT IS SO ORDERED
ENrERED

rhir3ff o^r,r{('fu.tt llry"

,2017.

ATES SENIOR DISTRICT JUDGE

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