Rayford v. Davis-Director TDCJ-CID

Filing 57

ORDER Accepting 50 Report and Recommendation on Case and Denying a Certificate of Appealability. The Clerk of Court is directed to close this case. (Ordered by Judge Jane J Boyle on 1/25/2012) (Judge Jane J Boyle)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
WILLIAM EARL RAYFORD,
Petitioner,
V.
RICK THALER, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent.

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Civil Action No. 3:06-CV-0978-B
(Death Penalty Case)

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE, AND
DENYING A CERTIFICATE OF APPEALABILITY
On July 12, 2011, the United States Magistrate Judge made findings, conclusions and a
recommendation (“F&R”, doc. 50) to deny habeas corpus relief in this case. William Earl Rayford
(“Rayford” or “Petitioner”) has filed objections, and the District Court has made a de novo review
of those portions of the F&R to which objection was made. The objections are OVERRULED, the
Court ACCEPTS the F&R and DENIES Rayford’s application for a writ of habeas corpus for the
reasons that follow.
I.
BACKGROUND
This is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Rayford is a Texas
inmate convicted of capital murder and sentenced to death for the violent murder of his former
girlfriend, during which Rayford also beat and stabbed her 11-year-old son who ran for help and later
testified at trial. Vol. 42 of the State Reporter’s Record (“RR”) 52-63. Rayford was apprehended in
the victim’s backyard with blood that matched the victim, whose body was found 300 feet inside a

culvert pipe nearby. 42 RR 113-14; 44 RR 11-13. She had been stabbed, severely beaten, and
strangled to death. 44 RR 38, 53-62, 71-72. Punishment-stage evidence showed that Rayford had
previously murdered his then-wife, stabbing her repeatedly in front of their children. 47 RR at 23,
43, 99-101, 118-19.
Rayford’s conviction and sentence were affirmed on direct appeal. See Rayford v. State, 125
S.W.3d 521 (Tex. Crim. App. 2003). Rayford also filed an application for postconviction writ of
habeas corpus on which the trial court made its findings and conclusions to deny relief. The Texas
Court of Criminal Appeals adopting the findings and conclusions of the trial court and denied relief.
See Ex parte Rayford, No. WR-63201-01, 2006 WL 1413533 (Tex. Crim. App. May 24, 2006). The
United States Magistrate Judge has made findings and recommends that relief be denied. F&R.
Rayford has filed objections to these findings. Obj. Aug. 31, 2011 (doc. 55). Respondent has filed
a response in opposition to Rayford’s objections. Resp. Sept. 21, 2011 (doc. 56). The F&R and the
Rayford’s objections are ripe for review.
II.
CLAIMS
Rayford objects to the Magistrate Judge’s F&R recommending denial of his claims that: (1)
his rights to an impartial jury were denied because (a) the jury venire did not reflect a fair crosssection of the community and (b) the trial court improperly denied a challenge for cause; (2) the
admission of the testimony of Royce Smithey at trial violated his rights to due process and a reliable
and individualized sentencing; and (3) his counsel provided ineffective assistance. He also reasserts
three claims that he acknowledges are foreclosed by Circuit precedent and requests that this Court

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withhold any ruling on his objections until the Supreme Court issues opinions on two cases pending
before it.1 Respondent opposes each of these claims and requests.
III.
LEGAL STANDARD
Federal habeas review of these claims is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). This statute sets forth a number
of preliminary requirements that must be satisfied before reaching the merits of a claim made in a
federal habeas proceeding.
A.

Exhaustion
Under this statute, a federal court may not grant habeas relief on any claim that the state

prisoner had not first exhausted in the State corrective process available to protect his rights. See 28
U.S.C. § 2254(b)(1)(A); Harrington v. Richter, 562 U.S. ___, ____, 131 S.Ct. 770, 787 (2011). To
satisfy this requirement, a habeas petitioner must have fairly presented the substance of his claim to
the state courts, alerting the court to the federal nature of his claim. See Nobles v. Johnson, 127 F.3d
409, 420 (5th Cir. 1997); Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005). The exhaustion
requirement is not satisfied if a petitioner “presents material additional evidentiary support to the
federal court that was not presented to the state court.” Graham v. Johnson, 94 F.3d 958, 968 (5th
Cir. 1996). Further, “it is not enough that all the facts necessary to support the federal claim were

1

Obj. at 40-41, 50, 52 (citing Martinez v. Ryan, No. 10-10001, __ U.S. ___, 131 S.Ct. 2960 (2011)
(granting certiorari regarding right to effective assistance of state habeas counsel ); Maples v. Thomas, No.
10-00063, ___ U.S. ____, 131 S.Ct. 1718 (2011) (granting certiorari regarding procedural default due to
ineffective assistance of state habeas counsel)). The Supreme Court has issued its decision in one of these
cases, Maples v. Thomas, ___ U.S. ___, 2012 WL 125438. As set out in Part V of this order, this new holding
does not assist Rayford. See infra at 24-25.

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before the state courts or that a somewhat similar state-law claim was made.” Wilder v. Cockrell, 274
F.3d 255, 259 (5th Cir. 2001) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)). The claim must
be presented “‘in terms so particular as to call to mind a specific right protected by the Constitution’”
or allege “‘a pattern of facts that is well within the mainstream of constitutional litigation.’” Kittleson,
426 F.3d at 315 (quoting Baldwin v. Reese, 541 U.S. 27 (2004)). However, the federal court may
deny relief on the merits notwithstanding any failure to exhaust. See 28 U.S.C. § 2254(b)(2); Miller
v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005).
B.

State-Court Procedural Determinations
If the state court denies a claim on state procedural grounds, a federal court will not reach

the merits of that claim if it determines that the state-law grounds are independent of the federal
claim and adequate to bar federal review. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Coleman
v. Thompson, 501 U.S. 722, 735 (1991). However, if the state procedural determination is based on
state grounds that were inadequate to bar federal habeas review, or if the habeas petitioner shows
that an exception to the bar applies, the federal court must resolve the claim without the deference
AEDPA otherwise requires. See Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir. 2000) (“Review
is de novo when there has been no clear adjudication on the merits.”) (citing Nobles, 127 F.3d at
416)); Mercadel v. Cain, 179 F.3d 271, 274-275 (5th Cir. 1999) (“the AEDPA deference scheme
outlined in 28 U.S.C. § 2254(d) does not apply” to claim not adjudicated on the merits by the state
court); Woodfox v. Cain, 609 F.3d 774, 794 (5th Cir. 2010) (the AEDPA deferential standard of
review would not apply to a procedural decision of the state court).

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C.

State-Court Merits Determinations
If the state court denies a claim on the merits, a federal court may not grant relief unless it

first determines that the claim was unreasonably adjudicated by the state court, as defined in §
2254(d):
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim——
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
Id. In the context of § 2254(d) analysis, “adjudicated on the merits” is a term of art referring to a
state court's disposition of a case on substantive rather than procedural grounds. Green v. Johnson,
116 F.3d 1115, 1121 (5th Cir. 1997). This provision does not authorize habeas relief, but restricts
this Court's power to grant relief to state prisoners by barring claims in federal court that were not
first unreasonably denied by the state courts. AEDPA limits rather than expands the availability of
habeas relief. See Fry v. Pliler, 551 U.S. 112, 119 (2007); Williams v. Taylor, 529 U.S. 362, 412
(2000). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state
court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Richter, 562 U.S. at ____, 131
S.Ct. at 784. “This is a ‘difficult to meet,’ and ‘highly deferential standard for evaluating state-court
rulings, which demands that state-court rulings be given the benefit of the doubt.’” Cullen v.

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Pinholster, 563 U.S. ____, 131 S.Ct. 1388, 1398 (2011) (internal citations omitted) (quoting Richter,
131 S.Ct. at 786, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Under the “contrary to” clause, a federal court is not prohibited from granting federal habeas
relief if the state court either arrives at a conclusion opposite to that reached by the United States
Supreme Court on a question of law or decides a case differently from the United States Supreme
Court on a set of materially indistinguishable facts. See Williams, 529 U.S. at 412-13; Chambers v.
Johnson, 218 F.3d 360, 363 (5th Cir. 2000). Under the “unreasonable application” clause, a federal
court may also reach the merits of a claim on federal habeas review if the state court either
unreasonably applies the correct legal rule to the facts of a particular case or unreasonably extends
a legal principle from Supreme Court precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529
U.S. at 407. The standard for determining whether a state court's application was unreasonable is
an objective one and applies to all federal habeas corpus petitions which, like the instant case, were
filed after April 24, 1996, provided that the claims were adjudicated on the merits in state court. See
Lindh v. Murphy, 521 U.S. 320, 327 (1997).
Federal habeas relief is not available on a claim adjudicated on the merits by the state court
unless the record before the state court first justifies a finding of unreasonableness under § 2254(d).
“[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation
of § 2254(d)(1) on the record that was before that state court.” Pinholster, __ U.S. at __, 131 S.Ct.
at 1400. The evidence required under § 2254(d)(2) must show that the state-court adjudication

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“resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
IV.
ANALYSIS
The Court will address Rayford’s objections to the Magistrate Judge’s F&R in the same order
that the Magistrate Judge addressed each of his claims in his F&R.
A.

Trial Errors
Rayford complains that his rights to an impartial jury were denied because the jury was drawn

from a venire that did not reflect a fair cross-section of the community, because the trial court
denied his challenge of a juror for cause, and because the trial court allowed expert testimony to
present misleading prison statistics that created a false impression before the jury in the punishment
stage of his trial. Rayford also presented claims regarding the admission of evidence that he was
convicted of murder of his then-wife in 1986 and the exclusion of evidence of certain medical
records relating to that same murder that have not been made the subject of specific objections.
1.

Fair Cross-Section

Rayford asserts that he was denied his Sixth and Fourteenth Amendment rights to an
impartial jury because the venire from which his jury was chosen was not reflective of a fair
cross-section of the community of Dallas, Texas. Specifically, Rayford claims that Dallas County's
method of convening jury panels results in a systematic exclusion of Hispanics and young adults (i.e.,
persons 18-34 years old). Am. Pet. at 62-64. In support of his claim, Rayford relies upon a study done
by The Dallas Morning News and SMU Law Review and the expert testimony of Dr. Harold Hietala,
Ph.D. Am. Pet. at 62-64.
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The state habeas court applied the proper standard from Duren v. Missouri, 439 U.S. 357
(1979), and Taylor v. Louisiana, 419 U.S. 522, 530 (1975).2 See 11 SHR at 3307. It concluded that
Rayford failed to show that young adults between the ages of 18 and 34 are a distinctive group in the
community, that Dallas County venires underrepresent the Hispanics and young adults who are
qualified to sit on a jury, or that there was any “systematic exclusion” of these groups. The state
court rejected the argument that these groups are systematically excluded because they ignore juror
summonses in disproportional numbers due to low juror pay, their economic disparity, and the failure
to enforce the jury summonses. 11 SHR 3307-18. These findings and conclusions have not been
shown to be incorrect.
In his Objections, Rayford complains that the Magistrate Judge did not address the theory
set out on page 67 of the original Application that the intentional failure to enforce jury summonses
constitutes a “systematic exclusion.” Obj. at 47. This is incorrect. The Magistrate Judge correctly set
forth the three elements of such claims from Duren, 439 U.S. at 363-64, as follows:
In order to establish a prima facie Sixth Amendment violation, a defendant must
show that: (1) the excluded group is a distinctive group in the community; (2)
representation of the group in venires from which juries are selected is not fair and
reasonable in relation to their number in the community; and (3) this
underrepresentation is due to systematic exclusion of the group in the jury selection
process.
F&R at 5 (citing Duren, 439 U.S. at 364). Contrary to the Objections, the Magistrate Judge
specifically addressed the argument of a systematic exclusion in light of Taylor v. Louisiana, 419 U.S.
at 530. In contrast to the policy in Taylor to specifically exempt women from jury service, the

2

The state habeas court found that this claim was procedurally barred for failing to make a timely
objection, but proceeded to the merits of this claim in the alternative. Vol. 11 of the State Habeas Record
(“SHR”) at 3307.

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Magistrate Judge observed: “No comparable law or policy pertaining to young adults or Hispanics
exists in this case. At most, their underrepresentation on Dallas County venire panels is an indirect
consequence of low juror pay and the failure to enforce jury summonses.” (F&R at 6.)
This is virtually identical to a claim found meritless in Rivas v. Thaler, 432 Fed. Appx. 395
(5th Cir. 2011).
Rivas contends that low juror pay and Dallas County's lack of enforcement of its
summonses is to blame for the disparate turnout. But the fact that certain groups of
persons called for jury service appear in numbers unequal to their proportionate
representation in the community does not support Rivas's allegation that Dallas
County systematically excludes them in its jury selection process. Such an occurrence
does not constitute the type of affirmative barrier to selection for jury service that is
the hallmark of a Sixth Amendment violation.
Id. at 402-403. The Court of Appeals expressly rejected the argument that a “systematic exclusion”
under Duren could be shown by the sort of economic discrimination argued in the study, but would
instead constitute a new rule of Constitutional law that would be barred by the nonretroactivity
doctrine of Teague v. Lane, 489 U.S. 288, 310–13 (1989). 432 Fed. Appx. at 403 (citing Castaneda
v. Partida, 430 U.S. 482, 491 n. 11 (1977)); see also Berghuis v. Smith, __ U.S. __, 130 S.Ct. 1382,
1396 n.6 (2010) (“We have also never ‘clearly’ decided, and have no need to consider here, whether
the impact of social and economic factors can support a fair-cross-section claim.”). In conclusion,
the Court of Appeals held that “Rivas has not shown that any underrepresentation of Hispanics or
persons 18 to 34 on his jury venire was due to their ‘systematic exclusion in [Dallas County's]
jury-selection process.’ Thus, he has failed to establish a prima facie violation of the fair cross-section
requirement.” 432 Fed. Appx. at 403 (citations omitted). These same reasons support the Magistrate

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Judge’s recommendation to deny relief on this claim.3 See F&R at 6-7. Accordingly, Rayford’s faircross-section claim is DENIED.
2.

Challenge for Cause

Rayford claims that he was denied his rights to an impartial jury under the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution when the trial court denied Rayford’s
challenge for cause to prospective juror Diane Potts. Am. Pet. at 71-76; Obj. at 42-45. Rayford raised
this claim in his direct appeal.
The state court observed that after the trial court overruled Rayford’s challenge for cause,
the juror was removed with a peremptory strike. See Rayford v. State, 125 S.W.3d at 532. The state
court then determined that the trial court did not abuse its discretion in denying the challenge for
cause because Rayford had not sustained his burden to show that the challenged venireperson would
be substantially impaired in her ability to follow the law.
Rayford argues that his challenge for cause should have been granted so that he would not
have had to use the peremptory strike that he exercised on Potts, and that he has done all that is
required to preserve this issue for appeal in Texas courts. Obj. at 44-45. However, this asserts the
wrong standard and one that is inapplicable to the determination of federal habeas corpus relief.
The Magistrate Judge applied the correct standard in recommending the denial of this claim
because where, as here, “a challenged juror is removed by use of a peremptory challenge following
the trial court's denial of a challenge for cause, a petitioner is entitled to federal habeas relief only

3

Although not raised by Respondent in his answer, the state habeas court found this claim to be
procedurally barred from habeas review because the objection to the venire was not made at the trial. 11 SHR
3307. Had this defense been asserted, it would have barred a review of the merits of this claim in federal court
as well. See Turner, 481 F.3d at 300-01.

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if he demonstrates that the jury ultimately selected to try the case was not impartial.” F&R at 7
(citing Dorsey v. Quarterman, 494 F.3d 527, 533 (5th Cir. 2007) and Ross v. Oklahoma, 487 U.S. 81,
88 (1988)). Since the challenged juror did not serve and Rayford has not shown that the jury
ultimately selected was not impartial, this claim lacks merit and is DENIED.
3.

Evidence of 1986 Murder Conviction

Rayford also claimed that he was denied due process when the trial court admitted evidence
in the punishment stage of his trial that he was convicted of the murder of his wife in 1986. Am. Pet.
at 53-59. The Magistrate Judge recommended the denial of this claim. F&R 8-11. Rayford’s
objections do not address those findings and conclusion, even though he has objected to the denial
of a related ineffective-assistance-of-counsel claim. Had he objected, the Court finds that Magistrate
Judge’s findings and conclusion are proper and are reviewed in the alternative. See Douglass v. United
Servs. Auto Ass'n, 79 F.3d 1415, 1420, 1428-29 (5th Cir. 1996).
Rayford claims that the conviction was inadmissible because his plea of no contest was not
knowingly, voluntarily and intelligently made and because it was the result of the ineffective
assistance of his counsel in 1986. Am. Pet. at 53. The state habeas court found that Rayford had not
overcome the presumption of regularity that attached to the recitals in the judgment.4 11 SHR at
3275-76. The state court also considered the psychiatric evidence and found credible the report of
E. Clay Griffith, M.D., the forensic psychiatrist that evaluated Rayford at the time of the plea that
Rayford was of average intelligence, was competent to stand trial, and was not suffering from a severe

4

The state habeas court found that this claim was procedurally barred and barred by laches for waiting
17 years without explanation to challenge the prior conviction. 11 SHR at 3266-71. It proceeded to the merits
of this claim in the alternative.

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mental disease or defect at the time of the offense. 11 SHR at 3272-74, 3278-81. The state court also
found that the report of Dr. Gilda Kessner made 17 years later failed to present sufficient credible
evidence to rebut Dr. Griffith’s contemporaneous report. 11 SHR at 3278-81. The state court
concluded that Rayford was mentally competent, and it concluded that he knowingly, voluntarily
and freely entered his 1986 plea. 11 SHR at 3282. The state court also extensively reviewed the
claims regarding his counsel in 1986, found that they did not provide ineffective assistance, and
found that prejudice had not been shown. 11 SHR at 3283-94.
The Magistrate Judge found that federal habeas relief is generally not available to challenge
a prior conviction used to enhance a criminal sentence after the prior conviction is no longer open
to direct or collateral attack. F&R at 8-9 (citing Lackawanna County Dist. Attorney v. Coss, 532 U.S.
394, 402-404 (2001)). The Magistrate Judge also reviewed the psychiatric evidence and found that
Rayford failed to sustain his burden to prove that he was mentally incompetent at the time he
entered his 1986 plea. F&R at 9-10. Finally, the Magistrate Judge concluded that even if this claim
were not barred by precedent, Rayford has not shown that his counsel in 1986 provide ineffective
assistance.
No error appears in these findings and recommendation. Therefore, this claim lacks merit
and is DENIED.
4.

Parkland Hospital Medical Records

Rayford also claims that he was denied his Eighth and Fourteenth Amendment rights to a
reliable and individualized sentencing when the court excluded his Parkland Hospital medical
records. Am. Pet. at 46-53. The Magistrate Judge recommended the denial of this claim. F&R at
11-12. Again, Rayford has not objected to those portions of the findings and recommendation even
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though he has objected to the denial of a related ineffective-assistance-of-counsel claim. Even if he
had objected, the Magistrate Judge’s findings and conclusion are proper and are reviewed in the
alternative. See Douglass, 79 F.3d at 1428-29.
The state habeas court found that this claim lacked merit because the records were not
admissible.5 11 SHR at 3255-57. The state court also found that the exclusion of these records did
not harm Rayford because the jury heard the mitigating information in these records through other
means and because any remorse in these records was for the prior murder in 1986 and not the
murder on trial. 11 SHR at 3257-59.
The Magistrate Judge applied the correct standard from Eddings v. Oklahoma, 455 U.S. 104,
110 (1982) and Byrne v. Butler, 845 F.2d 501, 517 n.14 (5th Cir. 1988) (citing Skipper v. South
Carolina, 476 U.S. 1, 5-6 (1986)). Although he found that the evidence was arguably not mitigating,
the Magistrate Judge concluded that the trial court did not violate Rayford’s right to individual
sentencing because the exclusion of this evidence was based on the evenhanded application of an
evidentiary rule which did not prevent Rayford from proffering or re-urging the evidence.
Again, no error appears in these findings. Therefore, this claim lacks merit and is DENIED.
5.

Testimony of Royce Smithey

Rayford also complains that a state’s expert witness, Royce Smithey, was allowed to present
misleading statistics to the jury about the frequency of serious assaults in prison by inmates. Obj. at
42, 45-46. Rayford raised this claim in his state habeas application.

5

The state habeas court found that this claim was procedurally barred because it was a record-based
claim that could have been made but was not made in the direct appeal. 11 SHR at 3254-55. It proceeded to
the merits in the alternative.

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The state habeas court observed that Smithey, the Chief Investigator for the Special Prison
Prosecution Unit, was called by the state to rebut a portion of the testimony of Dr. Gilda Kessner
dealing with prison life and statistics concerning violent incidents in prison.6 11 SHR 3214-18. The
state court stated the correct standard for the resolution of this claim under Napue v. Illinois, 360
U.S. 264 (1959), and found that Rayford did not prove that the testimony was actually false or
misleading. 11 SHR 3220, 3222, 3224-27, 3229.
The Magistrate Judge noted that the statistics reflected in Smithey’s testimony comport with
the Emergency Action Center ("EAC") report upon which the testimony was based, and the
omission of more detailed statistical information related to these assaults did not render Smithey's
testimony false.7 F&R at 20 (citing to record of Smithey’s trial testimony, the state habeas record and
findings). Therefore, Rayford did not establish even the first element of his due process claim. F&R
at 19 (citing Blackmon v. Scott, 22 F.3d 560,565 (5th Cir. 1994)).
The Magistrate Judge properly recommended that relief on this claim be DENIED.

6

As noted by the Magistrate Judge, Rayford made four distinct claims regarding this witness. F&R at
13-20. However, in his objections, he only objects to the recommended denial of his fourth claim. Obj. at 42.
“Rayford’s claim is that the prison expert–Smithey–was allowed to present generalized data about assaultive
behavior and the prevalence of drugs and weapons in the Texas prison system as a whole without tailoring the
risk factors to address inmates like Rayford. The underlying fallacy in the data is the implication that any
assault is an ‘act of violence’ within the meaning of the first special issue.” Obj. at 45. Therefore, the claims
that the testimony violated his right to individualized sentencing, that the testimony was irrelevant, and that
the witness was unqualified to provide expert testimony are waived.
7

Rayford also complains that the Magistrate Judge relied upon the failure of state habeas counsel to
include in the habeas court record the more detailed records referenced by her expert Dr. Mark Cunningham,
and he requests that a ruling on this objection be deferred until the Supreme Court rules on cases involving
the ineffective assistance of state habeas counsel. Obj. at 46-47. However, even the inclusion of more detailed
records before this court than were before the state court would not establish a right to federal habeas relief
under 28 U.S.C. § 2254(d). See Pinholster, 131 S.Ct. at 1400.

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B.

Prosecutor’s Comment
Rayford also claimed that the prosecutor improperly commented on his failure to testify in

arguing a lack of remorse. Am. Pet. at 59-60. The Magistrate Judge recommended the denial of this
claim. F&R at 20-21. Rayford’s objections do not address these finding or conclusion, but even if
they did, the Magistrate Judge’s findings and conclusion are proper. Therefore, the Court reviews
these findings and conclusion in the alternative. See Douglass, 79 F.3d at 1428-29.
The state habeas court found that the prosecutor’s argument was not a comment on the
defendant's failure to testify.8 11 SHR at 3264-65. It pointed out that the prosecutor did not refer
to remorse in particular, but merely argued that defense counsel “didn't spend much time on the
mitigation question, simply because there is not mitigation in this case.” 11 SHR at 3264-65 (citing
47 RR 201-02.
The Magistrate Judge observed that this argument merely asserted the absence of a
substantial mitigation case and did not constitute a Fifth Amendment violation. F&R at 20-21
(citing Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) and Brock v. McCotter, 781 F.2d 1152,
1159-60 (5th Cir. 1986)). No error appears in these findings. Therefore, this claim lacks merit and
is DENIED.
C.

Claims Foreclosed by Circuit Precedent
Rayford also objects to three claims that he concedes were denied in accordance with the

prevailing case authority in this Circuit. Obj. at 36. These include his complaints (1) that the trial
court’s instructions to the jury did not inform them that a lack of unanimity in their verdict on the

8

The state habeas court found that this claim was procedurally barred for lack of a contemporaneous
objection at trial. 11 SHR at 3263. It proceeded to consider the merits in the alternative.

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special issues would result in a life sentence, Am. Pet. at 70-71 (contra Alexander v. Johnson, 211 F.3d
895, 897 n. 5 (5th Cir. 2000) (per curiam)); (2) that the trial court’s instructions allowed the jury
to assess a death penalty on an unconstitutionally low burden of proof–that there is a “reasonable
probability” of future dangerousness, Am. Pet. at 76-78 (contra Rowell v. Dretke, 398 F.3d 370, 378379 (5th Cir. 2005)); and (3) that the Eighth Amendment prohibits the execution of the mentally
ill, Am. Pet. at 61-62 (contra ShisInday v. Quarterman, 511 F.3d 514, 521 (5th Cir. 2007); In re
Neville, 440 F.3d 220, 221 (5th Cir. 2006)). This Court agrees with the recommendation of the
Magistrate Judge. See F&R at 21-25. These claims are DENIED.
D.

Ineffective Assistance of Counsel
Rayford claims that his trial counsel was ineffective in the punishment phase of his trial for

(1) failing to prevent the admission into evidence of his 1986 conviction for murder, (2) failing to
admit into evidence his medical records pertaining to that same murder, and (3) failing to adequately
investigate and present a mitigation case.9
1.

AEDPA Review of Strickland Claims

The Magistrate Judge properly set forth the two-pronged standard from Strickland v.
Washington, 466 U.S. 668 (1984), by which a claim of ineffective assistance of counsel is measured.
The first prong of Strickland requires the defendant to show that counsel's performance was deficient.
Strickland, 466 U.S. at 687. The second prong of this test requires the defendant to show prejudice
9

Rayford also claims that he received ineffective assistance of counsel because his counsel did not
object when the prosecutor commented on his failure to testify, his counsel failed to challenge the composition
of the venire panel, and his counsel failed to raise various claims related to the testimony of Royce Smithey.
Am. Pet. 29-31, 68-70. Because the Court has rejected Rayford's underlying claims regarding the composition
of the jury, the testimony of Royce Smithey, and the prosecutor's comment, see sections IV(A)(1), IV(A)(5),
and IV(B), supra, the Court also rejects his claims that he received ineffective assistance of counsel based on
his counsel's failure to raise these objections or claims.

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resulting from counsel's deficient performance. Id. at 694. The court need not address both prongs
of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697,
700.
Further, because these claims were adjudicated on their merits in the state courts, the
presumption of competence required in Strickland combined with the deference required under §
2254(d) makes this Court’s review of the state court's denial of these claims “doubly deferential.”
Pinholster, 131 S.Ct. at 1402. Claims of ineffective assistance of counsel are considered mixed
questions of law and fact and are analyzed under the “unreasonable application” standard of 28
U.S.C. § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir.), cert. denied, ___ U.S. ____,
131 S.Ct. 265 (2010). In the federal habeas review of a Strickland claim, the “pivotal question is
whether the state court’s application of the Strickland standard was unreasonable” and not whether
the reviewing court itself believes trial counsel’s performance violated Strickland’s standards. See
Harrington, 131 S. Ct. at 785. In other words, AEDPA does not permit a de novo review of state trial
counsel’s conduct in these claims under Strickland. Id. Instead, on federal habeas review of a claim
fully adjudicated in state court, the state court’s determination is granted “a deference and latitude
that are not in operation when the case involves review under the Strickland standard itself.” Id.
2.

Failure of Trial Counsel to Prevent Admission of Records

Rayford complains trial counsel was ineffective in the punishment stage for failing to prevent
the admission into evidence of a “pen packet” reflecting a conviction and prison sentence for the
1986 murder because the plea was involuntary due to mental illness. Am. Pet. at 3, 24-25 [related
claim at 53-59]; Obj. at 2, 35-36. Rayford presented this claim in his state habeas application.

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The state habeas court found that Rayford's 1986 conviction was not the result of an
involuntary, unknowing, or incompetent plea. 11 SHR at 3294. The state court also found that the
pen packet was regular on its face, and the recitals in the judgment and other documents signed by
Rayford created a presumption of regularity that were not rebutted in the state court proceeding. Id.
at 3294-95. The state court also found that Rayford's trial attorneys did not object to the admission
of the pen packet because it was not objectionable, id. at 3295, and due to reasonable trial strategy
because it contained evidence of his excellent prison disciplinary record, id. at 3295, 3298. The state
court concluded that trial counsel were not ineffective. Id. at 3298.
Petitioner relies upon the opinion of his mitigation expert (made 17 years after the plea) that
he had been suffering from depression that would have compromised his critical-thinking and
decision-making abilities. Obj. at 21; 2 SHR 280. However, the record before this Court includes an
expert psychiatric evaluation of competency that appears fully sufficient to support the
contemporaneous findings of competency and the state habeas court’s findings regarding the
admissibility of the evidence of conviction.10 2 SHR 256-60; 9 SHR 2700-02, 2732-33; 11 SHR 327182. This does not establish incompetency, would not overcome the presumption of validity of the
conviction, and would not justify excluding the evidence. Trial counsel was not ineffective for failing
to make a meritless objection. See Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir. 2007); Green

10

In his objections, Rayford also claims that state habeas counsel was ineffective for failing to develop
evidence to discredit Dr. Clay Griffith, the forensic psychiatrist that made the competency evaluation in 1986.
Obj. at 35-36. Rayford now requests that this Court withhold a ruling on this objection until the Supreme
Court rules on other cases expected to address the ineffective assistance of state habeas counsel. However,
Rayford does not identify any pertinent information to discredit Dr. Griffith that state habeas counsel failed
to present. The requested delay is not warranted.

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v. Johnson, 160 F.3d at 1037. The Magistrate Judge’s recommendation is correct. This claim is
DENIED for lack of merit.
3.

Failure of Trial Counsel to Have Records Admitted

Rayford also complains that trial counsel was ineffective for failing to offer into evidence
voluminous medical records from Parkland Hospital (Dallas County Hospital District) pertaining
to his attempted suicide following that earlier murder.11 Am. Pet. at 25-27 [related claim at 46-53];
Obj. at 2-3, 10-11.
The state habeas court found that the pertinent information contained in those medical
records was submitted to the jury through the testimony of Dr. Gilda Kessner (a defense expert),
Officer Thomas E. Hitt (a state’s witness), and applicant's TDCJ records (Defense Exhibit 3). 11
SHR 3252-53, 3257, 3259. The state court also found that Rayford failed “to point out any
information in the medical records that the jury did not hear about through an alternative means
and which was so crucial to the case that the jury’s failure to see the actual piece of paper
contributed to his punishment.” 11 SHR 3258. The court continued:
189. The Court finds nothing in the medical records attached to the writ application
that adds any significant information to what the jury heard. In this regard, the
medical records present the information in a form that is comparatively
incomprehensible to the average non-medical professional.
190. Thus, the Court finds that the jury received the information in a more
understandable format and did not lack any information regarding applicant's suicide
attempt.

11

The claim in the Amended Petition focuses on the Parkland Hospital medical records, as did the
state habeas application. To the extent that the Objections attempt to include more records in this claim than
are reflected in the petition before this court, leave has not been granted to amend the pleadings to include
any matters not exhausted in the state court.

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11 SHR 3258. The state court concluded that Rayford failed to prove that trial counsel was
ineffective for failing to have these records admitted and failed to show that the absence of these
records undermined confidence in the outcome of the trial. 11 SHR 3261-62.
Rayford alleges that the admission of these medical records would show remorse for that
earlier crime.12 Am. Pet. at 25, 27; Obj. at 17-19. The state court noted the limited value of such
evidence because the “remorse” was not for the instant murder, and the existence of such remorse
did not prevent the subsequent murder. 11 SHR 3258-59. The Magistrate Judge observed, “[i]t
strains credulity to suggest that the jury would have viewed petitioner in a more favorable light
because he showed remorse for a murder committed more than 14 years earlier.” F&R at 28.
The state-court findings are consistent with this Court’s own review of those records. In
addition, of the approximately 116 pages of medical records,13 less than half (approximately 49
pages) appear directly pertinent to Mr. Rayford's injuries sustained in connection with the murder
of his wife in June of 1986. 2 SHR 285-404. The remainder appear to be from different periods in his
life and pertain to myriad injuries which may be inadmissible and even prejudicial to the petitioner.
Finally, many of the records of other injuries are intermingled with the records from the June 1986
incident, making it more difficult for jurors to keep track of which injuries pertain to which date.
Therefore, the state-court findings are entitled to deference and have not been shown incorrect. The

12

The claim in the Amended Petition asserts that these medical records show critical evidence of
remorse that was not adequately presented elsewhere, as was presented in the state habeas application. To the
extent that the Objections attempt to expand the allegation of prejudice, leave has not been granted to amend
the pleadings to include any matters not exhausted in the state court.
13

Exhibit 8A attached to Dr. Kessner’s affidavit in the state court records includes an affidavit from
the custodian of records for the Dallas County Hospital District that there were 119 pages of records attached.
2 SHR at 286. However, there followed only 116 pages of such records.

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state court’s adjudication of this claim is neither contrary to nor an unreasonable application of
established federal law, nor is it based on an unreasonable determination of fact. The Magistrate
Judge’s recommendation on this claim is correct. This claim is DENIED.
4.

Failure of Trial Counsel to Obtain Forensic Medical Examiner

Rayford also claimed that the prosecutor improperly commented on his failure to testify in
arguing a lack of remorse. Am. Pet. at 28-29. The Magistrate Judge recommended the denial of this
claim. F&R at 28. Rayford's objections do not address these finding or conclusion, but even if they
did, the Magistrate Judge's findings and conclusion are proper. Therefore, the Court reviews these
findings and conclusion in the alternative. See Douglass, 79 F.3d at 1428-29.
The Magistrate Judge correctly observed that Rayford has not made the showing required
to prove this claim. F&R at 28 (citing Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009)). No
error appears in these findings. Therefore, this claim lacks merit and is DENIED.
5.

Failure of Trial Counsel to Present Adequate Mitigation Case

Rayford also complains that trial counsel failed to adequately develop and present a case in
mitigation by failing to obtain a “mitigation specialist” and by failing to present a more complete view
of his background and mental health, including his “abandonment rage” resulting from his mother's
absence after a divorce and her inappropriate sexual behavior with suitors. Am. Pet. at 2-3, 11-24;
Obj. at 2-33.
The state court found that trial counsel was aware of this mitigation strategy and obtained
the assistance of Dr. Gilda Kessner, who investigated, evaluated and presented evidence of Rayford’s
background and mental health at trial. 11 SHR 3295-96. The state court also found that Rayford
and his siblings prevented his trial counsel from more fully developing and presenting evidence of
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these additional mental health issues in an effort to protect their mother from embarrassment. 11
SHR 3296 (referencing Ashford Aff. at 10 SHR 3066). Rayford has not shown this to be incorrect.
See 28 U.S.C. § 2254(e)(1).
Rayford’s present complaints rely upon this same expert, Dr. Kessner. Her affidavit states that
she has been recognized as a psychological expert witness regarding sentencing determination issues,
including mitigation and future dangerousness in state courts in Texas, has testified in capital
sentencing proceedings, and has presented at defense attorney training seminars in Texas regarding
psychological issues relevant to capital sentencing. 2 SHR 271. Therefore, to the extent that Rayford
complains that his trial counsel failed to obtain a sufficient mitigation specialist, his own evidence
suggests otherwise.
Dr. Kessner’s affidavit also indicates that Rayford’s “abandonment rage” theory was known
and available even to his attorney in the prior 1986 trial. 2 SHR 281. She does not claim to have had
any difficulty investigating Rayford’s case or have suffered any lack of opportunity to adequately
prepare or advise Rayford’s trial counsel in the 1999 trial. In fact, her trial testimony (both before
and outside the presence of the jury) indicated that in preparation she had extensively reviewed the
same records (about 1,200 pages), read the applicable literature, and conducted interviews of
Rayford and others that were sufficient in length and quality for her to form the conclusions and
opinions about which she testified. 46 RR 76, 111-12, 143; 47 RR 34-38, 41.
Further, the trial record does not indicate that she was confined in her testimony to only
those records that had been admitted into evidence. 46 RR 111-12, 123, 142-43, 173-75, 181-85;
47 RR 21-27, 35-38. She was permitted to testify regarding Rayford’s history of paternal
abandonment and substance abuse, 46 RR 120-21, 127, 137-38; being raised by a single mother who
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worked two jobs, 46 RR 121, 127; being left in the care of siblings that may have abused drugs and/or
went to prison, 46 RR 127, 139, 140; being unprotected from a harmful environment, 46 RR 120-21,
139; being exposed to adult sexual activities – including those of his mother – that were
inappropriate for his age and development, 46 RR 121, 132-33, 135-36, 138; being sexual abused
himself, 46 RR 132, 133-35, 139; and being exposed to domestic violence as a child and adolescent,
46 RR 121-23, 138-39. She opined about the long-term psychological, emotional, physical and
cognitive effects of this history of abuse and neglect. 46 RR 123-42. She used the metaphor of a
house with a bad foundation illustrated through a visual aid. 46 RR 106, 117-18, 137. She also
testified about Rayford’s own substance abuse, 46 RR 120-21, 126, 130, 139, 141; his academic and
social failures, 46 RR 141-42; his depression, 46 RR 123-26, 142; and the details of his self-inflicted
wounds and attempted suicide following the murder of his wife. Other evidence was admitted
showing Rayford’s attempted suicide, 47 RR 101-03; and the “overkill” connected with the
“abandonment rage” theory, 44 RR 38-53, 62-63, 68-73; 47 RR 115-19. Based on this record, Dr.
Kessner would also have been able to explain to Rayford’s trial counsel, and convey to the jury any
“abandonment rage” mitigation case. 2 SHR 281. There is no indication that she was constrained
from doing so.
The state court found that Rayford’s trial counsel’s representation was not shown deficient
and that Rayford was not deprived of the effective assistance of counsel in the investigation and
presentation of mitigating evidence at the punishment stage of his trial. 11 SHR 3295-96, 3298.
These findings are consistent with the record and entitled to deference. Rayford’s claims of
ineffective assistance of counsel are DENIED.

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E.

Cumulative Error
Rayford also presented a cumulative error claim. Am. Pet. at 78-79. The Magistrate Judge

also recommended that this claim be denied, F&R at 35, but no objections have been made. Even
if an objection was made, this finding and conclusion are proper.
Because Rayford failed to establish any error, the Magistrate Judge recommended that this
claim be denied as well. F&R at 35 (citing Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir. 2000)).
This is a correct conclusion. The cumulative error claim also lacks merit and is DENIED.
V.
REQUEST TO WITHHOLD DETERMINATION
In his Objections, Rayford also complains that the Magistrate Judge’s findings and
recommendation were based, at least in part, on the failure of state habeas counsel to investigate and
present these claims in the state court. Acknowledging that any such failures are presently
unreviewable, Rayford nonetheless requests that this Court delay ruling on his objections until the
Supreme Court rules on two cases in which it granted certiorari involving the ineffective assistance
of state habeas counsel. Obj. at 35-36, 45, 46-47 (citing Martinez v. Ryan, 131 S.Ct. at 2960, and
Maples v. Thomas, 131 S.Ct. at 1718)). Rayford has not, however, produced any evidence or legal
theories that were not presented by state habeas counsel that would otherwise entitle him to relief
in these proceedings should they become reviewable. Further, the Supreme Court has issued its
opinion in one of these cases and it does not help Rayford.
On January 18, 2012, the Supreme Court issued its opinion in Maples v. Thomas, ___ U.S.
___, 2012 WL 125438, in which it recognized that the attorneys' abandonment of their client
severed the agency relationship and constituted “cause” to excuse a procedural default created when
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a state appeal deadline was missed. Maples did not disturb the general rule that “[n]egligence on the
part of a prisoner's postconviction attorney does not qualify as ‘cause’” to excuse a procedural
default. 2012 WL 125438, at *10. Instead, the Court distinguished the negligence of counsel from
a complete abandonment that severs the agency relationship and terminates the lawyer's authority
to act for the client. The Court observed that “when an attorney abandons his client without notice,
and thereby occasions the default,” that conduct severs “the principal-agent relationship” such that
the “attorney no longer acts, or fails to act, as the client's representative.” Id.
Rayford alleges that his state habeas counsel was negligent in failing to investigate and
properly develop evidence that his 1986 conviction for murder should not have been admitted
because he was not mentally competent at the time of that plea. Obj. at 35-36. Rayford also
complains of the neglect of the state habeas counsel to fully develop the evidence attributable to an
unacceptable juror in connection with his claim that the trial court overruled a challenge for cause.
Obj. at 45. Rayford also complains that state habeas counsel failed to attach a more detailed report
showing that the testimony of a prosecution expert, Royce Smithey, overstated the prevalence of
assault in prison. Obj. at 46-47. Construed in a light most favorable to Rayford, these allegations
would only allege ordinary negligence and not the complete abandonment that is required in Maples.
Rayford has not shown any reasonable likelihood that a delay would change the outcome of
these proceedings. Therefore, the requested delay is DENIED.

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VI.
CONCLUSION
The petition for writ of habeas corpus is DENIED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the Court DENIES a certificate of appealability. The Court ADOPTS and INCORPORATES by
reference the Magistrate Judge's Findings, Conclusions and Recommendation (F&R) filed in this
case in support of its finding that the petitioner has failed to show (1) that reasonable jurists would
find this Court's “assessment of the constitutional claims debatable or wrong,” or (2) that reasonable
jurists would find “it 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, 529 U.S. 473, 484 (2000).
In the event, the petitioner will file a notice of appeal, the court notes that
(X)

the petitioner will proceed in forma pauperis on appeal.

()

the petitioner will need to pay the $455.00 appellate filing fee or submit a motion
to proceed in forma pauperis.

SO ORDERED.
SIGNED: January 25, 2012.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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