Robertson v. Thaler, Director TDCJ-CID

Filing 72

MEMORANDUM OPINION AND ORDER: Petitioner Mark Robertson's 47 application for a writ of habeas corpus is DENIED. In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), and after considering the record in t his case, the court DENIES Robertson a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); 28 U.S.C. § 2253(c)(2). If Robertson files a notice of appeal, he may proceed in forma pauperis on appeal. (Ordered by Senior Judge A. Joe Fish on 3/30/2017) (twd)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

MARK ROBERTSON,

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Petitioner,
VS.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

CIVIL ACTION NO.
3:13-CV-0728-G

(Death Penalty Case)

MEMORANDUM OPINION AND ORDER
Petitioner Mark Robertson has filed an amended application for a writ of
habeas corpus under 28 U.S.C. § 2254 (“Amended Petition”) (docket entry 47),
asserting claims that his trial counsel provided ineffective assistance and that his due
process rights were violated by the presentation of false or inaccurate evidence in the
punishment stage of his trial. The application is DENIED.
I
In 1991, Robertson was convicted of capital murder and sentenced to death
for the 1989 robbery and murder of Edna Brau in Dallas County, Texas. See State v.
Robertson, No. F89-85961-NL (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Feb. 11,

1991). Clerk’s Record (“CR”) (docket entry 27) at 321-25. His conviction and
sentence were affirmed on direct appeal. See Robertson v. State, 871 S.W.2d 701
(Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994). The state court then set
an execution date, but withdrew it to allow Robertson to file his application for a
post-conviction writ of habeas corpus in state court, and then for the state court to
give full consideration to it. The state district court sitting in review of the hab eas
petition (“State Habeas Court”) recommended that post-conviction habeas relief be
denied. See Ex parte Robertson, No. W89-85961-NL-(A) (Crim. Dist. Ct. No. 5,
Dallas County, Tex. June 26, 1998). These findings and recommendation were
adopted by the Texas Court of Criminal Appeals (“CCA”). See Ex parte Robertson,
Writ No. 30,077-01 (Tex. Crim. App. Nov. 18, 1998). Robertson then filed an
application for habeas relief in federal court, which was also denied. See Robertson v.
Johnson, 3:98-CV-2768-G (N.D. Tex. May 15, 2000), COA denied sub nom. Robertson v.
Johnson, 234 F.3d 890 (5th Cir. 2000), vacated and remanded, 533 U.S. 901 (2001), en
banc denial of relief sub nom. Robertson v. Cockrell, 325 F.3d 243 (5th Cir. 2003).
Following the conclusion of Robertson’s original state and federal postconviction review, the state court again set his execution for August 20, 2003. On
August 12, 2003, Robertson filed a subsequent application for writ of habeas corpus
and motion to stay his execution in the CCA, which authorized the subsequent
application and granted the stay of execution. See Ex parte Robertson, No. 30,077-02

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(Tex. Crim. App. Aug. 19, 2003) (docket entry 27-36 at 275-276). Following the
remand, the CCA adopted the trial court’s findings that Robertson had presented
mitigating evidence for which, under Penry v. Lynaugh, 492 U.S. 302 (1989), there
had to be an adequate means for the jury to consider beyond the limits of the special
issues, that Robertson had requested such a means, and that, when presented with
the nullification instruction, Robertson objected that it still did not give the jury a
proper means to consider his mitigating evidence. See Ex parte Robertson, No. AP74,720, 2008 WL 748373 (Tex. Crim. App. Mar. 12, 2008). The CCA granted
relief, reversed the sentence, and remanded for a new trial on punishment. See id.
On retrial with the new special issues, the jury again answered them in a
manner that required imposition of a death sentence. See State Clerk’s Record of
Second Punishment Trial (“SCR”) (docket entry 27-42) at 197-99, 210-11. The
CCA affirmed the new death sentence. See Robertson v. State, No. AP-71,224, 2011
WL 1161381 (Tex. Crim. App. Mar. 9, 2011), cert. denied, 565 U.S. 1095 (2011).
On state post-conviction habeas review, Robertson presented one claim to the state
district court on habeas review: that trial counsel provided ineffective assistance for
failing to investigate and present mitigating evidence. The state habeas court
conducted an evidentiary hearing and entered findings, conclusions and a
recommendation to deny relief. See State Clerk’s Habeas Record following Second
Punishment Trial (“SHR”) (docket entry 28-27) at 1126-99. The CCA adopted the

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findings “except for paragraphs 1, 2, and 3, which indicate that the allegation is
procedurally barred,” and denied relief. Ex parte Robertson, No. WR-30,077-03, 2013
WL 135667, at *1 (Tex. Crim. App. Jan. 9, 2013).
II
At the retrial, the prosecution entered into evidence multiple confessions that
Robertson gave that he had shot his friend, Sean Hill, while they were fishing, then
murdered Hill’s grandmother, Edna Brau, stole her purse and jewelry and Hill’s drugs
and left in Brau’s car. The CCA quoted from Robertson’s written confession.
On Saturday night around 9 PM I decided to walk over to
Sean’s house on Hathaway where he lived with his
grandmother. When I got there, Sean was in his room
watching T.V. We sat around watched TV and did some
pot and crank. We then decided to go fishing out in the
backyard. We were using one stick with a string and a
hook. We would trade off, I think we caught some seven
catfishes. While we were fishing, I think we were kneeling.
I pulled my gun out of my pants and shot Sean once in the
head. After I shot him, Sean fell in the water. I then ran
in the house through Sean’s bedroom and into the
bathroom where I splashed some water over my face. I
then walked into the den where Mrs. Hill, Sean’s
grandmother, was watching TV and I shot her once. I
unplugged the TV because it was playing and so was the
radio in the bedroom.
I looked through her bedroom drawers and found her purse
on the make-up counter. I saw some costume jewelry but
left it alone. I did take a wristwatch which I later threw
away in a garbage can but I don’t remember where. I then
ran into Sean’s room and took his crank which was left on
the bed. I then drove off in Mrs. Hill’s car. I went on
home and then went to Showtime on Greenville and
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Lover’s where I wiped it all down and left it there. I then
walked back home. Next day while listening to the
evening news I heard about their bodies being found. I
couldn’t sleep for the next couple of days so I figured that I
would just leave. I walked back to the parking lot at
Showtime where I got in the car and decided to drive to
Las Vegas where my parents used to bring me. I had left
the car in the parking lot. I threw the purse away in a
dumpster at the Village Apts. I think that I left on
Tuesday sometime around 4 PM. I drove all the way to
Albuquerque, N. Mexico where I spent the night and the
following day I drove to Vegas. I was staying at the
SuLinda Motel in Vegas. I met Nikki two or three days
later at the Circus-Circus. I used my roommate’s money to
get to Vegas. He had some $700.00 in cash in his room. I
think that Mrs. Hill’s purse had some $37.00 in cash
which I took. These past few days I didn’t know what to
do and when I got arrested I felt relieved for the most part
because I didn’t have to run anymore.
Robertson, 871 S.W.2d at 704-05. The state court findings regarding these
confessions are entitled to deference under 28 U.S.C. 2254(e).
III
Before this court, Robertson makes two claims for federal habeas relief:
(1) that trial counsel failed to adequately investigate and develop mitigating evidence
Amended Petition at 15-50, and (2) that his death sentence was based on materially
inaccurate evidence, Amended Petition at 51-62. Respondent Lorie Davis asserts
that Robertson’s first claim is unexhausted and procedurally barred by the Texas
abuse-of-the-writ doctrine, Answer (docket entry 50) at 2, 48-61, and that both
claims lack merit. Answer at 61-71. Robertson agrees that his first claim is

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unexhausted but argues that it comes within the exception to the procedural bar
created in Martinez v. Ryan, 566 U.S. 1 (2012), as applied to Texas in Trevino v.
Thaler, 133 S. Ct. 1911 (2013). Amended Petition at 38-50; Reply (docket entry 51)
at 4-7.
IV
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”),
setting forth preliminary requirements that must be satisfied before reaching the
merits of a claim made in these proceedings.
A. Exhaustion
Under the AEDPA, a federal court may not grant habeas relief on any claim
that the state prisoner has not 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. 86,
103 (2011). The federal court may, however, 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), cert. denied, 549 U.S. 838 (2006).
B. State-Court Procedural Determinations
If the state court denies the claim on state procedural grounds, a federal court
will not reach the merits of those claims if it determines that the state law grounds
are independent of the federal claim and adequate to bar federal review. See Sawyer

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v. Whitley, 505 U.S. 333, 338 (1992). The same rule would apply “if the petitioner
failed to exhaust state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would
now find the claims procedurally barred.” Coleman v. Thompson, 501 U.S. 722, 735
n.1 (1991), modified by Martinez v. Ryan, 566 U.S. 1 (2012); Woodfox v. Cain, 609
F.3d 774, 793 (5th Cir. 2010).
If, however, 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.), cert. denied, 531 U.S. 849 (2000); Nobles v. Johnson, 127 F.3d 409, 416 (5th
Cir. 1997), cert. denied, 523 U.S. 1139 (1998); Mercadel v. Cain, 179 F.3d 271, 275
(5th Cir. 1999) (“the AEDPA deference scheme outlined in 28 U.S.C. § 2254(d) does
not apply” to claims not adjudicated on the merits by the state court); Woodfox, 609
F.3d at 794 (the AEDPA deferential standard would not apply to a procedural
decision of the state court).
C. State-Court Merits Determinations
If the state court denies the claim on the merits, a federal court may not grant
relief unless it first determines that the state court unreasonably adjudicated the
claim, as defined in § 2254(d):

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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 the § 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 the relitigation of claims in federal court that were
not unreasonably denied by the state courts. The 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 98. “This is a ‘difficult
to meet,’ and ‘highly deferential standard for evaluating state-court rulings, which
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demands that state-court rulings be given the benefit of the doubt.’” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (internal citations omitted) (quoting Richter,
562 U.S. at 102, 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 contrary 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.), cert. denied, 531 U.S. 1002 (2000). Under the
“unreasonable application” clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from the Supreme Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.
Williams, 529 U.S. at 413. The Supreme Court has repeatedly reaffirmed the high
and difficult standard that must be met.
“‘[C]learly established Federal law’” for purposes of
§ 2254(d)(1) includes only “‘the holdings, as opposed to
the dicta, of this Court’s decisions.’” And an
“unreasonable application of” those holdings must be
“‘objectively unreasonable,’” not merely wrong; even “clear
error” will not suffice. Rather, “[a]s a condition for
obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.”
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White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citations omitted).
Federal habeas relief is not available on a claim adjudicated on the merits by
the state court, unless the record before the state court satisfies § 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, 563 U.S. at 185. The evidence required under § 2254(d)(2)
must show that the state-court adjudication “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.”
V
In his first claim, Robertson complains that he was denied the effective
assistance of counsel in the punishment retrial because his appointed counsel failed
to conduct an adequate mitigation investigation. Amended Petition at 15-50.
Specifically, Robertson asserts that his counsel “unreasonably narrowed the scope of,
and prematurely ceased, the [mitigation] investigation despite red flags that signaled
further investigation needed to be done into [Robertson’s] mental state at the time of
the offense, into maternal and paternal genetic-and-environmental influences, and
into [Robertson’s] early childhood.” Amended Petition at 15.

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Respondent asserts that this claim was not presented to the state court and is,
therefore, unexhausted and now procedurally barred. Answer at 48-52. Robertson
agrees that this claim was not presented to the state court, but argues that it comes
within the exception to the procedural bar created in Martinez. Amended Petition at
38-50; Reply at 5-7. Respondent argues that the claim does not fall within the
exception to the procedural bar created in Martinez because it is insubstantial and
state habeas counsel was not ineffective. Answer at 52-61. In the alternative,
Respondent asserts that the claim lacks merit. Answer at 61-62.
A. State Court Action
In the post-conviction habeas application filed in state court, Robertson
presented one claim, that his “Sixth Amendment right to counsel was violated when
he received ineffective assistance of counsel as a result of his legal team’s failure to
adequately investigate and present mitigation evidence as required by Wiggins v.
Smith, 123 S.Ct. 2547 (2003) and Lewis v. Dretke, 355 F.3d 364 (5th Cir. 2003).”
SHR (docket entry 28-27) at 8. The state court described the claim:
In his sole ground for relief, Robertson complains trial
counsel Richard Franklin and Robbie McClung failed to
adequately investigate and present mitigation evidence,
specifically that they were ineffective for (a) failing to
follow mitigation expert Dr. Kelly Goodness’ advice to
present certain themes at trial (Application at 25-27);
(b) failing to call psychologist Dr. Mark Vigen as a witness
at trial (Application at 27-29); (c) failing to depose
Robertson’s friend Doris Jordi prior to trial and present the
deposition to the jury (Application at 29-30); and
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(d) failing to obtain a copy of Robertson’s 2001 clemency
petition from former counsel Randy Schaffer’s file.
(Application at 30-31.) In support of his claims of
ineffectiveness Robertson cites Wiggins v. Smith, 539 U.S.
510, 536 (2003) and Lewis v. Dretke, 355 F.3d 364 (5th
Cir. 2003).
SHR at 1150 (citing State Habeas Application at 6, 16-17). The state habeas court
conducted an evidentiary hearing on this claim from January 23-26, 2012, Vol. 1-5,
State Habeas Reporter’s Record (“SHRR”) (docket entry 28-22), and resolved
disputed factual findings against Robertson in denying relief.
While the state habeas court concluded that the claim was procedurally barred
because it could have been but was not presented in his direct appeal, the CCA did
not adopt that finding. Instead, the CCA adopted the state habeas court’s alternative
findings that denied this claim on its merits. See Ex parte Robertson, No. WR-3007703, 2013 WL 135667 at *1.
The adopted findings included details of the pretrial appointment of “highly
qualified death penalty counsel” for the trial and appellate purposes that included
trial assistance “to formulate and execute an effective trial strategy for mitigation.”
SHR (docket entry 28-25) at 1155-57. The state court found that trial counsel put
on a comprehensive mitigation case that “covered Robertson’s life span and painted a
picture of a person who suffered as an abused, parentless child, who turned to drugs
as a result, and who ultimately thrived in the highly structured environment of
TDCJ.” SHR (docket entry 28-25) at 1186.
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182. The Court finds the defense team hired or consulted
with the following experts in preparing Robertson’s
mitigation case: forensic psychologist Kristi Compton;
forensic psychologist and prison consultant Mark Vigen;
clinical psychologist and substance abuse expert Ari
Kalechstein; psychologist and mitigation expert Kelly
Goodness; prison expert S.O. Woods; former Texas
Department of Criminal Justice employee Larry Fitzgerald;
and future dangerousness expert Jon Sorenson. (Franklin
Affidavit, p. 1; WR3: 54-55, 68-69, 81, 112-113).
***
185. The Court finds the defense team hired Dr. Goodness
as a mitigation consultant. (Tatum Affidavit, p. 1;
Franklin Affidavit, pp. 2). The Court finds Dr. Goodness
worked closely with the defense team, investigated
Robertson’s background, and suggested salient potentially
mitigating factors. (Tatum Affidavit, p. 1). The Court
finds Franklin’s following description of Dr. Goodness’ role
to be reliable:
Dr. Goodness was our mitigation expert. She
began the process of gathering mitigation
evidence by interviewing [Robertson], his
family members, and friends who knew
[Robertson] prior to his incarceration. Dr.
Goodness and her assistant prepared
elaborate summaries of all interviews for the
defense team’s use. The three defense
attorneys participated in her interviews of the
family members. Dr. Goodness reviewed the
entire defense file, including [Robertson’s]
educational and mental health records, and
the discovery CDs provided by the
prosecution. The initial interviews and
document review led her to other resources
and individuals to contact and interview. The
mitigation investigation included gathering
information and family photos. She
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developed ideas regarding which experts to
consult based on the information gathered.
Dr. Goodness recommended using Dr.
Compton and Dr. Kalechstein. The team
mutually decided to utilize Dr. Vigen, Mr.
Woods, and Dr. Sorenson. Dr. Goodness and
the defense team participated in numerous
strategy meetings, email exchanges, updates
on interviews, and discussions regarding her
investigation. Prior to jury selection, Dr.
Goodness offered opinions concerning the
ideal defense juror and suggested scaled
questions to be included in the juror
questionnaire. She proposed evidence to
present at trial, how to present it, questions
to ask, and what order to ask them. Dr.
Goodness was in the courtroom throughout
trial. She offered critiques on the evidence as
it developed and made recommendations
regarding how to handle certain situations.
She recommended specific direct-examination
or cross-examination questions to ask during
the testimony of various witnesses.
(Franklin Affidavit, pp. 2-3.)
186. The Court finds the attachments to Franklin’s
affidavit include a timeline of Robertson’s life from birth to
age 39 created by Dr. Vigen (Exhibit A), a summary of
records titled “Document Review” (Exhibit B), and an
outline by Dr. Goodness of information gathered (Exhibit
C). (See Franklin Affidavit, p. 4). The Court finds these
items are representative of the thoroughness of the
mitigation investigation and reflect the wide variety of
categories of documents that the defense team scrutinized
for mitigation evidence (school records, military records,
substance abuse treatment records, court records,
probation records, police and jail records, and prison
records) and the numerous individuals the team
interviewed.
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187. The Court finds McClung’s following description of
the development of the mitigation evidence to be reliable:
Our initial strategy in developing the
mitigation case was to obtain a detailed
history from family members, particularly
regarding the violence in [Robertson’s]
childhood home, the violence in his parents’
marriage, and the family’s progression to
Texas. We contacted all of [Robertson’s]
siblings; however, only one sister agreed to
testify. The next step in developing the
mitigation case was to use professionals to
explain to the jury how that type of a family
history affects a person and how the family
history particularly affected [Robertson].
We utilized Dr. Compton to explain how the
family’s dysfunctional environment affected
[Robertson’s] prenatal, birth, and juvenile
development and behavior. Dr. Compton was
very familiar with the timelines of
[Robertson’s] development and life span. She
utilized a power point presentation at trial
and graphs to demonstrate the factors
contributing to [Robertson’s] development,
including [Robertson’s] father’s genetic
contribution (in other words his
psychopathy), environmental influences, the
series of abandonments [Robertson] was
subjected to, and the trauma of witnessing
physical abuse in his home.
Our strategy in explaining who [Robertson]
was to the jury continued with Dr. Ari
Kalechstein, a psychologist and expert on
addiction, who described the progression of
[Robertson’s] drug abuse. Evidence of
[Robertson’s] extensive substance abuse and
Dr. Kalechstein’s testimony were also the
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basis of Richard’s closing argument that Edna
Brau’s murder was not deliberate beyond a
reasonable doubt and the jury should answer
“no” to the deliberateness special issue, on
the basis that [Robertson’s] substance use
interfered with his development, contributed
to his impulsivity, and resulted in a lack of
thought processes during the offense.
The next prong of our strategy in the
mitigation case was to examine [Robertson’s]
life from his incarceration to the present day.
Evidence [Robertson] was not violent while
on death row was the best evidence he was
not a future danger. We were excited about
the jury having the opportunity to see that
[Robertson] successfully conformed his
behavior to the requirements of prison. One
of the charms of [Robertson’s] case was that
he was incarcerated on two different death
rows—the Ellis Unit until 1999, where far
fewer restrictions existed, and the present day
death row on the Polunsky Unit. The jury
was able to see that in both situations, even
the less restrictive environment, [Robertson]
incurred only minor disciplinary infractions.
(McClung Affidavit, p. 2).
SHR (docket entry 28-25) at 1186-91. These findings are entitled to deference
under 28 U.S.C. § 2254(e).
B. Law
Claims of ineffective assistance of counsel are measured by the two-pronged
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong
of Strickland requires the habeas petitioner to show that counsel’s performance was
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deficient. See id. at 687. The second prong of this test requires the petitioner to
show prejudice resulting from counsel’s deficient performance. See id. at 694. The
court need not address both prongs of the Strickland standard if the complainant has
made an insufficient showing on one. See id. at 697.
In measuring whether counsel’s representation was deficient, a petitioner must
show that counsel’s representation fell below an objective standard of reasonableness.
See id. at 687-88; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997). “It is well
settled that effective assistance is not equivalent to errorless counsel or counsel
judged ineffectively by hindsight.” Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982).
A court reviewing an ineffectiveness claim must indulge a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional competence or
that, under the circumstances, the challenged action might be considered sound trial
strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Wilkerson v. Collins, 950 F.2d
1054, 1065 (5th Cir. 1992), cert. denied, 509 U.S. 921 (1993). There are “countless
ways to provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.” Richter, 562 U.S.
106. In Richter, the Supreme Court noted the “wide latitude counsel must have in
making tactical decisions” and the need to avoid judicial second-guessing. Id.
(quoting Strickland, 466 U.S. at 689). “Just as there is no expectation that competent
counsel will be a flawless strategist or tactician, an attorney may not be faulted for a

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reasonable miscalculation or lack of foresight or for failing to prepare for what appear
to be remote possibilities.” Id., 562 U.S. at 110.
To satisfy the second prong of the Strickland test, the petitioner must show
that counsel’s errors were so serious “as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. The test to establish prejudice
under this prong is whether “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. A reasonable probability under this test is “a probability sufficient to
undermine confidence in the outcome.” Id.
Claims not presented in the original state habeas proceeding are subject to a
state procedural bar. Texas law precludes successive habeas claims except in narrow
circumstances. See TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5 (West 2015). This
is a codification of the judicially created Texas abuse-of-the-writ doctrine. See
Barrientes v. Johnson, 221 F.3d 741, 759 n.10 (5th Cir. 2000), cert. dismissed, 531
U.S. 1134 (2001). Under this state law, a habeas petitioner is procedurally barred
from returning to the Texas courts to exhaust his claims unless the petitioner presents
a factual or legal basis for a claim that was previously unavailable or shows that, but
for a violation of the United States Constitution, no rational juror would have found
for the State. See id. at 758 n.9.

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The United States Court of Appeals for the Fifth Circuit has repeatedly “held
that ‘the Texas abuse of the writ doctrine has been consistently applied as a
procedural bar, and that it is an independent and adequate state ground for the
purpose of imposing a procedural bar.’” Canales v. Stephens, 765 F.3d 551, 566 (5th
Cir. 2014) (quoting Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008)).
Therefore, unexhausted claims that could not make the showing required by this
state law would be considered procedurally barred from review on the merits in this
Court unless an exception is shown. See Beazley v. Johnson, 242 F.3d 248, 264 (5th
Cir.), cert. denied, 534 U.S. 945 (2001).
C. Analysis
Both parties agree that the claim now presented by Robertson in federal court
was not properly exhausted by presenting it to the state court. They disagree on
whether the claim falls within the exception to procedural bar created in Martinez.
To show that the ineffective-assistance-of-trial-counsel claim falls within the
exception, Robertson must demonstrate (1) that the claim is “substantial” in that it
“has some merit,” and (2) that the claim was not presented to the state court because
the habeas petitioner had no state habeas counsel or because his state habeas counsel
was ineffective under the Strickland standard. Martinez, 566 U.S. at 14. Respondent
can defeat this by showing either that the claim “is insubstantial, i.e., it does not have
any merit or that it is wholly without factual support, or that the attorney in the

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initial-review collateral proceeding did not perform below constitutional standards.”
Id. at 16. Therefore, a determination of whether this claim falls within the
procedural bar first requires an examination of whether the asserted claim has any
merit.
In his amended petition, Robertson alleges that trial counsel were deficient in
that they prematurely ceased investigation of two areas: (1) “maternal-and-paternal
genetic-and-environmental influences, and into [Robertson’s] early childhood,”
Amended Petition at 18-28, and (2) “the mental state underlying the behaviors of
Mark Robertson.” Amended Petition at 28-34. Regarding prejudice, Robertson
alleges “upon information and belief” that a reasonable investigation into his psychosocial history would have revealed
that [Robertson] suffered substantial abuse at the hands of
his biological father, as well as deprivation and neglect
throughout childhood from all of his parental figures. In
addition, he may have suffered from an untreated, but
treatable, mental illness. Further, a chronology reflects
that [Robertson] experienced one of the most significant of
traumatic stressors of his life, the Circle Tallant Stressor,
which adversely affected his cognitive abilities, including
the ability to weigh costs and benefits and to override
impulses with rational thought. [Robertson] spiraled out
of control in the weeks immediately preceding, and
culminated in, the murders of Saunders, Brau and Hill.
Had the jury known the real Mark Robertson, they would
not have sentenced him to death.

- 20 -

Amended Petition at 35 (emphasis added). The highlighted language above implies
that the claim included the failure to present this information to the jury so that they
could have known it, as may be required to show the prejudice prong of Strickland.
In her answer, Respondent characterizes the complaint that trial counsel failed
to develop “and present” mitigating evidence in 5 areas: “(1) regarding the paternal
side of his family (id. at 26-27); (2) the psychological, emotional, and physical health
of his mother to show that he was at risk for Reactive Attachment Disorder (id. at 2729); (3) his early childhood years in the crime-ridden town of El Monte, California
(id. at 29-34); (4) the trauma of his breakup with his girlfriend [Circle Lisa Tallant]
months before the murders (id. at 34-37); and (5) evidence showing that he had a
treatable mental illness (id. at 37-40).” Answer at 12. Respondent argues that
Robertson failed to “demonstrate the required Strickland prejudice,” because he did
not show for any uncalled witness “that the witness’s testimony would have been
favorable,” and “that the witness would have testified at trial.” Answer at 53 (citing
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). “Robertson does not
name the missing witnesses or the missing evidence, does not show that the witnesses
or evidence is available, and does not show that such hypothetical testimony or
evidence would have aided his cause.” Answer at 53.
In his reply, Robertson responds to this by clarifying his claim to eliminate any
allegation that he has failed to present mitigating evidence and to narrow his claim to

- 21 -

a failure-to-investigate only, emphatically denying that he alleges any failure to
present mitigating evidence.
However, the Director seeks to refute Mr. Robertson’s
IATC Wiggins Claim as though it were a failure-to present
claim. Specifically, the Director recasts Mr. Robertson’s
allegations that trial counsel failed to reasonably
investigate their client’s background as “in the nature of a
claim complaining of an uncalled witness.” Doc #50 at 59
of 79. An allegation that trial counsel did not thoroughly
investigate or made an unreasonable decision to cease
investigating is not a claim complaining of an uncalled
witness. The latter concerns what evidence trial counsel
decided not to present while the former concerns what
information trial counsel failed to learn.
Reply at 2 (emphasis in original). Robertson emphasizes that he does not assert any
failure to present mitigating evidence and does not carry forward any of those claims
made in the state court. Reply at 2-3.
Notwithstanding the exhaustion question, Robertson’s claim as clarified does
not assert the required prejudice. To show prejudice, a 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.” Strickland, 466 U.S. at 694. In
the context of a complaint that counsel failed to investigate and discover potential lay
or expert testimony about his background, abuse, mental state and any treatable
mental illness, a habeas petitioner must show how the undiscovered testimony would
have made a difference in the evidence presented at trial and in its outcome.

- 22 -

An applicant “who alleges a failure to investigate on the
part of his counsel must allege with specificity what the
investigation would have revealed and how it would have
altered the outcome of the trial.” United States v. Green,
882 F.2d 999, 1003 (5th Cir. 1989). To prevail on an
ineffective assistance claim based upon uncalled witnesses,
an applicant must name the witness, demonstrate that the
witness would have testified, set out the content of the
witness’s proposed testimony, and show that the testimony
would have been favorable. See Alexander v. McCotter, 775
F.2d 595, 602 (5th Cir. 1985).
Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir.), cert. denied, 562 U.S. 911 (2010).
Only then can the reviewing court “reweigh the evidence in aggravation against the
totality of available mitigating evidence.” Wiggins, 539 U.S. at 534. Because
Robertson has failed to make the required showing for this court to know what any
allegedly missing evidence would have been, this court cannot reweigh the evidence
in aggravation against such unknown evidence.
Although Robertson’s petition attempts to show prejudice by alleging that the
jury would not have sentenced him to death if they had “known the real Mark
Robertson,” he later contradicts this implied presentation element in his reply by
withdrawing any allegation that trial counsel failed to present this evidence to the
jury so that they could have known it. Without any corresponding allegation
regarding how this failure to investigate impacted trial counsel’s presentation to the
jury deciding his punishment, Robertson does not say how any such failure could
have resulted in harm or prejudice.

- 23 -

In the alternative, even if it is assumed arguendo that Robertson is asserting
prejudice in trial counsel’s failure to present mitigating evidence, Respondent’s
argument remains correct. Robertson has not made the prejudice showing required
to complain of any uncalled witnesses, and his attempt to avoid this requirement by
removing any allegation of deficient presentation seems to acknowledge that.
Complaints regarding uncalled witnesses are “disfavored,” as the decision whether to
call a witness is a matter of trial strategy. Gregory, 601 F.3d at 352-53 (citing
Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 2007), and Alexander, 775 F.2d
at 602).
Robertson has also not rebutted the presumption of correctness afforded the
relevant findings of the state court. These findings and the procedural history of this
case show that this is not a case where trial counsel completely failed to investigate
and present mitigating evidence. Indeed, Robertson had the benefit of multiple
lawyers in his original trial, appeal, state and federal habeas proceedings and was
granted a retrial specifically to “give the jury a proper means to consider his
mitigating evidence” developed in the original trial. Ex parte Robertson, 2008 WL
748373, at *1. At the retrial, Robertson’s counsel also sought and obtained the
assistance of a team of punishment phase experts including “forensic psychologist
Kristi Compton; forensic psychologist and prison consultant Mark Vigen; clinical
psychologist and substance abuse expert Ari Kalechstein; psychologist and mitigation

- 24 -

expert Kelly Goodness; prison expert S.O. Woods; former Texas Department of
Criminal Justice employee Larry Fitzgerald; and future dangerousness expert Jon
Sorenson.” SHR (docket entry 28-25) at 1187. The state court found that trial
counsel utilized these experts to conduct a thorough mitigation investigation that
included the review of a wide variety of documents, interviews with numerous
individuals, and a time line of Robertson’s life. SHR (docket entry 28-25) at 1189.
This claim asserts Robertson’s current disagreement with his prior expert’s
opinions rather than a deficiency in the conduct of his trial counsel. Robertson
claims that the opinion of his defense expert at trial “was not valid or reliable”
because it did not have an “adequate factual foundation.” Amended Petition at 36.
Specifically, Robertson complains that his defense team obtained “anecdotal”
information from multiple witnesses that his father was “a pretty violent, mean
individual,” Amended Petition at 21 (citing volume 41, Reporter’s Record (“RR”) at
72-74), but did not investigate his father’s “psycho-social history, the environment
and family into which [Robertson’s father] had been born, or his mental and physical
health.” Amended Petition at 21. Robertson speculates that such an investigation
“could have revealed that the behavior of [Robertson’s father] was because of reasons
other than that he was a psychopath.” Amended Petition at 21.
Robertson also alleges that Dr. Compton failed to conduct an adequate inquiry
into his early childhood, from “birth to age 5, his attachment to his mother or other

- 25 -

caretaker, and the caretaker’s ability and willingness to nurture [Robertson] in
infancy,” before concluding that he suffered from reactive attachment disorder.
Amended Petition at 23 (citing 41 RR 80-81). Further, Robertson complains that his
early childhood years in a rough, crime-filled area of California were inadequately
investigated to show the environmental factors that influenced his early development.
Amended Petition at 23-28. Robertson also complains that these experts did not
adequately investigate and consider the emotional impact on him resulting from the
termination of his relationship with his girlfriend, Circle Tallant, who testified in the
prior trial about their break-up and the abortion of their child. Amended Petition at
28-31 (referring to this as the “Circle Tallant Stressor”). Robertson also complains
that these experts did not adequately investigate and consider whether he suffered
from a treatable bipolar disorder mentioned in the transcripts of the prior trial that
they reviewed rather than the untreatable anti-social personality disorder that they
diagnosed him to have. Amended Petition at 31-34.
These complaints are directed against his prior experts rather than counsel. To
make a viable claim of the deprivation of the effective assistance of counsel under
Strickland for failing to provide an expert with information, the petitioner must show
that the expert requested the information and that the information would have made
a difference to the expert’s opinion. See Bloom v. Calderon, 132 F.3d 1267, 1278 (9th
Cir. 1997), cert. denied, 523 U.S. 1145 (1998) (cited with approval by Roberts v.

- 26 -

Dretke, 356 F.3d 632, 640 (5th Cir. 2004), cert. denied, 544 U.S. 963 (2005)); Segundo
v. Stephens, No. 4:10-CV-0970-Y, 2015 WL 3766746 at *2 (N.D. Tex. June 17,
2015) COA denied sub nom, Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. July 28,
2016); Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995), cert. denied, 517
U.S. 1111 (1996).
In Hendricks, the United States Court of Appeals for the Ninth Circuit
observed that an attorney has no duty to provide information to an expert that is not
requested by the expert.
To now impose a duty on attorneys to acquire sufficient
background material on which an expert can base reliable
psychiatric conclusions, independent of any request for
information from an expert, would defeat the whole aim of
having experts participate in the investigation. An integral
part of an expert’s specialized skill at analyzing
information is an understanding of what information is
relevant to reaching a conclusion.
70 F.3d at 1038. Further, a claimant should show that the testifying experts would
have changed their opinions if they had the missing information. See, e.g., Roberts v.
Singletary, 794 F. Supp. 1106, 1131-32 (S.D. Fla. 1992) (holding ineffective
assistance of counsel not shown when experts did not state that the additional
information would have changed the diagnosis in any meaningful way and did not
express inability to base conclusions on available information), aff’d, 29 F.3d 1474
(11th Cir. 1994), cert. denied, 515 U.S. 1133 (1995).

- 27 -

In contrast, when counsel provides the defense expert with the information
that the expert considered necessary to form an expert opinion, and the expert does,
in fact, investigate the potential defense, “[l]ater disagreement by other experts as to
the conclusions does not demonstrate a violation of Strickland.” Fairbank v. Ayers, 650
F.3d 1243, 1252 (9th Cir. 2011), cert. denied, 565 U.S. 1276 (2012). In Segundo v.
Davis, “trial counsel obtained the services of a mitigation specialist, fact investigator,
and two mental-health experts” who “conducted multiple interviews with Segundo
and his family, performed psychological evaluations, and reviewed medical records.”
831 F.3d at 352. Segundo alleged that trial counsel was ineffective for failing to
provide a social history to properly investigate his intellectual disability, “[b]ut none
of the experts retained by trial counsel indicated that they were missing information
needed to form an accurate conclusion that Segundo is not intellectually disabled.”
Id. The Court of Appeals held that “[c]ounsel should be permitted to rely upon the
objectively reasonable evaluations and opinions of expert witnesses without worrying
that a reviewing court will substitute its own judgment, with the inevitable hindsight
that a bad outcome creates, and rule that his performance was substandard for doing
so.” Id. (quoting Smith v. Cockrell, 311 F.3d 661, 676-77 (5th Cir. 2002), overruled on
other grounds by Tennard v. Dretke, 542 U.S. 274 (2004)); see also Turner v. Epps, 412
Fed. App’x 696, 704 (5th Cir. 2011) (“While counsel cannot completely abdicate a
responsibility to conduct a pre-trial investigation simply by hiring an expert, counsel

- 28 -

should be able to rely on that expert to alert counsel to additional needed
information . . . .”), cert. denied, 565 U.S. 1115 (2012).
Robertson has not shown that his prior experts did not have sufficient
information, that any of the prior experts requested from counsel the information
that he now identifies, or that if they had, that any of the information his experts
would have received would have changed any of their opinions. There is no evidence
showing that trial counsel did anything other than rely upon what appeared to be
objectively reasonable evaluations and opinions of his own expert witnesses.
Robertson has not satisfied the deficiency prong of Strickland because he
merely complains about his experts and not trial counsel. His claim boils down to a
disagreement between experts that is insufficient to support relief on an ineffective
assistance of counsel claim. “It will nearly always be possible in cases involving the
basic human emotions to find one expert witness who disagrees with another and to
procure an affidavit to that effect from the second prospective witness.” Waye v.
Murray, 884 F.2d 765, 766-67 (4th Cir.), cert. denied, 492 U.S. 936 (1989), quoted
with approval in Woodward v. Epps, 380 F. Supp. 2d 788, 791 (S.D. Miss. 2005).
Such a disagreement between experts does not establish ineffective assistance of
counsel. See Bell v. Thompson, 545 U.S. 794, 809-10 (2005) (approving decision of
Tennessee Court of Criminal Appeals that trial counsel could not be faulted for
relying upon the opinions of his two medical experts).

- 29 -

Robertson has not satisfied the prejudice prong of Strickland because he does
not allege any failure to present mitigating evidence that could have resulted from
any deficient investigation, what the missing evidence would have been, and how it
would have made a difference at trial. Because Robertson has not satisfied either
prong of Strickland, this claim lacks any merit and may be denied on that basis
notwithstanding any failure to exhaust. See 28 U.S.C. § 2254(b)(2).
The exhaustion problem raises further obstacles. Before this court, Robertson
has expressly abandoned his exhausted claim. While this court would consider de
novo an unadjudicated claim that is shown to come within the Martinez exception, the
court is not required to grant funding or an evidentiary hearing for a procedurally
barred claim in the hope that it might someday be shown to come within an
exception. The court does not encourage habeas petitioners to abandon potentially
meritorious claims that were thoroughly exhausted in the state court or to transform
fully exhausted claims into unexhausted ones in order to avoid the Pinholster
limitation on evidentiary development of the exhausted claims in federal court. This
use of Martinez would run counter to the exhaustion requirement and “encourage
sandbagging in state court to obtain de novo review of a petitioner’s ‘real’ claim in
federal court.” Ward v. Stephens, 777 F.3d 250, 257 n.3 (5th Cir.), cert. denied, 136
S. Ct. 86 (2015).

- 30 -

To be clear, Robertson’s allegations before this court differ from those
presented to the state court not only because he expressly disavows any presentation
element in his complaint against trial counsel. Robertson’s reply also clarifies that he
refuses to assert the allegations of the exhausted claim presented to the state court in
his post-conviction habeas application.
In this proceeding, Mr. Robertson has not alleged that trial
counsel were deficient for (1) failing to follow the
presentation recommendations of defense mental health
expert Dr. Kelly Goodness; (2) failing to present testimony
from Dr. Mark Vigen; (3) failing to present deposition
testimony from Doris Jordi; (4) failure to obtain a copy of
Mr. Robertson’s clemency application; or (5) telling jurors
that Mr. Robertson had previously been sentenced to
death. Those issues were raised in state habeas, but, as
will be more fully discussed below, Section III. infra, Mr.
Robertson did not carry forward the state habeas IATC
claims into federal habeas.
Reply (docket entry 51) at 2-3 (emphasis in original).
Because Robertson has not incorporated those complaints into his federal
petition, and expressly refuses to do so, it appears that he has indeed alleged a new
and unexhausted claim. This does not, however, entitle him to funding and
evidentiary development in federal court. See Allen v. Stephens, 805 F.3d 617, 638-39
(5th Cir. 2015), cert. denied, 136 S. Ct. 2382 (2016) (“we have rejected the argument
that Martinez and Trevino require the granting of funds to develop claims such as
Allen’s.”) (citing Crutsinger v. Stephens, 576 Fed. App’x 422, 431 (5th Cir. 2014)
(“Martinez . . . does not mandate pre-petition funding, nor does it alter our rule that a
- 31 -

prisoner cannot show a substantial need for funds when his claim is procedurally
barred from review.”), cert. denied, 135 S.Ct. 1401 (2015). This also does not
eliminate the presumption of correctness afforded relevant state court findings, or a
habeas petitioner’s duty to rebut such findings by clear and convincing evidence
under 28 U.S.C. 2254(e).
Even if Robertson’s claim may be read to include a complaint regarding
counsel’s failure to present evidence to his jury at trial, he has not shown that such a
complaint would have any merit. Therefore, he has not identified a substantial claim
of ineffective assistance of trial counsel that could satisfy this element of Martinez and
come within this exception to procedural bar. Further, Robertson has not shown that
his state habeas counsel provided ineffective assistance in order to satisfy that
element of Martinez, nor, does it appear, could he.
State habeas counsel obtained investigative and expert assistance and
presented a Wiggins claim of ineffective assistance of trial counsel to the state court in
post-conviction habeas review that was arguably stronger than the instant claim.
That claim included a complaint that trial counsel failed to present mitigation
evidence at trial, went beyond a mere disagreement between experts, and was
considered by the state court to be substantial enough to warrant a three-day
evidentiary hearing. Further, since Robertson has not presented a substantial claim
of ineffective assistance of trial counsel that was not presented to the state court,

- 32 -

state habeas counsel could not have been ineffective in failing to present it. See
Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013) (agreeing with the district court
that “habeas counsel was not ineffective in failing to raise [a] claim at the first state
proceeding” because “there was no merit to [the petitioner’s] claim”), cert. denied, 134
S.Ct. 2876 (2014); Beatty v. Stephens, 759 F.3d 455, 466 (5th Cir. 2014), cert. denied,
135 S.Ct. 2312 (2015); Braziel v. Stephens, No. 3:09-CV-1591-M, 2015 WL 3454115
at *10 (N.D. Tex.), COA denied, 631 F. App’x 225 (5th Cir. 2015), cert. denied, 136
S. Ct. 1825 (May 2, 2016).
Therefore, Robertson’s first claim is DISMISSED as unexhausted and
procedurally barred. In the alternative, it is DENIED for lack of merit
notwithstanding any failure to exhaust.
VI
In his second claim, Robertson complains that he was denied his rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments “because his death sentence
was based on materially inaccurate evidence from Warden Nelson.” Amended
Petition at 51. Specifically, Robertson argues that the state court decision that he
had not shown that Warden Nelson’s testimony was “false or misleading,” was
contrary to and an unreasonable application of federal law, and also based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceedings in violation of 28 U.S.C. § 2254(d). Amended Petition at

- 33 -

57-62. Construing this as a due process claim, Respondent argues that it lacks merit.
Answer at 62-71.
A. State Court Action
On direct appeal to the CCA from the new death sentence, Robertson
complained that the state had presented false and misleading testimony from its
expert witness, Warden Melodye Nelson, regarding the following five matters:
(1) whether or not the Defendant would “automatically”
enter the system as a [classification level] G3 [prisoner];
(2) the prison personnel were underpaid, short staffed and
one officer is often looking after 150 inmates; (3) there was
more violence in the general population than there was in
administrative segregation; (4) a year ago the Texas
Department of Criminal Justice was 4,000 correctional
officers short; an inmate can come and go from their cells
to work; (5) the prison is filled with psychopaths.
Appellant’s Brief before CCA (docket entry 27-44 at 105) at 77. To prove the falsity
of Nelson’s testimony, Robertson relied upon the testimony of his expert, S.O.
Woods, Jr., that was offered in the hearing on his motion for new trial.
Regarding Nelson’s testimony that Robertson would “automatically” enter the
system at the middle level restriction of a G3 classified inmate if he had been given a
life sentence, Woods agreed that was the “rule of thumb for any sentence over 50
years.” Supplemental Reporter’s Record (“Supp. RR”) (docket entry 30) at 9.
Woods explained that the prison’s computer system would have made the assessment
of that level or the less restrictive G2 level, and that the responsible committee would

- 34 -

have probably assigned the less restrictive G2 level because they did not have reason
to override the computer assessment. Supp. RR at 40. Woods’ only concern was
that he thought that the term “automatic” was “not a good choice of words.” Supp.
RR at 15. “I never disagreed with that decision. I just said it wasn’t automatic.”
Supp. RR at 40.
In finding that Robertson had not shown any falsity in this part of Nelson’s
testimony, the CCA stated “[a]lthough Woods disagreed with the warden’s choice of
words, the evidence indicates that [Robertson] was eligible for [the even less
restrictive] G2 status if given a life sentence.” Robertson, 2011 WL 1161381 at *8.
The CCA also found that there was no reason in the record to deviate from that
determination.
Regarding Nelson’s testimony that the prison personnel were underpaid, shortstaffed and one officer may look after 150 inmates, Woods agreed that the prison
system was understaffed but could not confirm the numbers that Nelson used.
I didn’t find anybody that generally agreed with [Nelson’s]
statement, among those people [in the prison system] that
I interviewed. They led me to believe that there would be
situations -- and my experience tells me that there’s
situations -- where one or two or three officers might
supervise large groups of inmates, for instance, on a
recreation yard or chow hall or in a hallway or maybe in a
gymnasium or something like that.
Supp. RR at 18. He testified that this was referred to as “indirect supervision.”
Supp. RR at 18.
- 35 -

Woods also testified that “TDC is such a complex operation and it consist of
so many different and variety of units that it’s impossible to come up with anything
like a ratio that says there’s so many officers to so many inmates.” Supp. RR at 19.
Woods came up with an estimated worst ratio of one officer to eighteen inmates by
doing “royal math,” dividing the total number of prison officers on the TDC payroll
by the total number of inmates listed as the TDC population, rather than using any
actual data from the prison regarding supervision ratios that might have distinguished
between the needs of different units and different levels of supervision. Supp. RR at
19-20.1 Woods’ opinion on this point appears to be little more than a guess.
During the cross-examination of Woods at the hearing on the motion for new
trial, the prosecutor asked Woods if Nelson’s testimony regarding this ratio was
presented as an extreme example rather than a regular occurrence. Woods did not
disagree that a supervision ratio might on a rare occasion be higher, as Nelson
suggested, but explained that he thought she was referring to a regular occurrence
because she had “used the word ‘often.’ That’s what came out to me. I think the
word ‘often’ was in there, something like that. That made it sound like it was
common. That’s where I didn’t agree with it.” Supp. RR at 43. On that point, the
prosecutor was content to “let the record speak to that.” Supp. RR at 43.

1

Woods contrasted his estimated worst ratio with the indirect
supervision of large groups. Supp. RR at 45. He also testified that, in the distant
past, he had supervised as many as 600 inmates by himself. Supp. RR at 44.
- 36 -

During the trial, Nelson was asked whether the prison was understaffed. She
responded,
That’s very easily said. Yes sir. We are very underpaid.
And for one -- you know for every one staff member they
may be in charge of up to 150 offenders. You can’t -- you
know they can’t keep a direct eye on all 150 of those
offenders. So you’re watching one and ten are doing
something else.
42 RR (docket entry 30-8) at 87 (emphasis added). In this testimony, Nelson
appears to set up the most extreme potential limits to point out how understaffing
can impact an officer’s ability to supervise inmates. In fact, this testimony appears to
refer to indirect supervision as it suggests that direct supervision is not possible for
such a large ratio.
Nelson also mentioned this ratio during the trial, when asked whether an
inmate would have a greater opportunity to commit violence if they went into a less
restrictive general prison population category than they would if they went into
administrative segregation or death row. Nelson testified:
Yes, sir. The statistics of one correctional officer watching
150 versus two watching 84 -- I mean there’s a large
decrease in the amount of supervision that goes into
watching a G2 offender or observing the actions of a G2
versus the actions of our administrative segregation
offenders.
42 RR (docket entry 30-8) at 116. Nelson’s point in this testimony appears to focus
on the increased opportunity in the general population to commit acts of violence

- 37 -

than there is in administrative segregation and not what the normal or appropriate
direct supervision ratios in the prison system would be.
On this point, Woods agreed that there was a greater opportunity for prisoners
in the general prison population to commit acts of violence, that there was greater
freedom in the general population, that there was a greater number of incidents in
the general population due to the greater numbers, and that prisoners in
administrative segregation are highly controlled and guarded at a higher rate than
those in the general population. Supp. RR (docket entry 30) at 23, 47. But Woods
also believed that the prisoners in administrative segregation had a greater desire to
commit acts of violence, emphasizing, however, that this was only his opinion based
on common sense and not on any hard evidence. “I don’t know that I can support
that statistically. It’s common sense. They’re bad inmates and they would be more
likely to want to act out on the officers.” Supp. RR (docket entry 30) at 24-25. On
cross-examination, Woods acknowledged that Nelson had corrected the prosecutor
regarding this subject and did not leave the impression that the general population
had the worst violence in the prison. Supp. RR (docket entry 30) at 47-48.
Regarding Nelson’s testimony that the Texas Department of Criminal Justice
was 4,000 correctional officers short the prior year, Woods testified that there was a
shortage but guessed that it would not have been that high.
Well that’s a continuing problem with the agency, is
overturn of staff. I’m not sure about the 4,000 number
- 38 -

being an accurate number. I do know that two weeks ago
they were down by 900 officers system wide which with a
110 or so units, that means it’s probably about ten per
unit.
***
As far as a year ago, I try to keep up with current trends at
TDC because of the work that I do and things. The 4,000,
I think, was high. I don’t know how high, but I think it
was high for a year ago.
Supp. RR (docket entry 30) at 26.
Regarding Nelson’s testimony that an inmate in the general population can
come and go from their cells to work, the CCA thoroughly compared the testimony of
Nelson and Woods on this issue and found that they were “substantially identical.”
Robertson, 2011 WL 1161381 at *10.
Finally, Nelson testified at trial that she would agree with the defense counsel’s
statement that the prison is filled with psychopaths. 42 RR (docket entry 30-8) at
111, 116. In the hearing on the motion for new trial, Woods did not present any
facts or statistics on this point, and agreed that there were probably more
psychopaths in the prison system, but doubted that there would be very much more.
“We probably have more in the prison system because they’re criminally oriented in
a lot of cases. But I wouldn’t suspect the population of psychopaths in the prison is
too terribly much higher than that outside the prison.” Supp. RR (docket entry 30)
at 30. Again, Woods’ language suggests no more than a guess.

- 39 -

Robertson also called Dr. Mark Vigen in support of his motion for new trial to
establish that, although he was present and heard Nelson’s testimony, Vigen would
not have been able to testify during the trial on these matters because of the time it
would take for him to obtain the necessary data. Supp. RR (docket entry 30) at 7375. Although Vigen had expressed concerns to defense counsel about some of
Nelson’s opinions, he didn’t have the data he thought he would need to dispute
them. Supp. RR (docket entry 30) at 73-75. Specifically, Vigen testified that Nelson
had a different understanding than he did about the things raised in the motion for
new trial, such as whether an inmate would “automatically” receive G3 status and
whether the prison had been 4,000 officers short, and he later consulted with Woods
regarding those things before the hearing on the motion for new trial. Supp. RR
(docket entry 30) at 78-81. Vigen also testified that he had evaluated Robertson
and, if called at trial, would have offered the opinion that Robertson “would qualify
for the diagnosis of anti-social personality disorder and that he had psychopathic
tendencies.” Supp. RR (docket entry 30) at 82.
After noting the lack of a trial objection to Nelson’s testimony and leaving
open the question of whether Robertson’s complaints were preserved, the CCA
analyzed each of these items of disputed expert opinion and concluded that
Robertson had not demonstrated Nelson’s testimony to be false or misleading and

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had not shown that the trial court abused its discretion in denying the motion for
new trial. See Robertson, 2011 WL 1161381 at *7-10.
B. Law
Robertson relies upon Napue v. Illinois, 360 U.S. 264, 269 (1959), in support
of his argument that a conviction obtained through perjury, known to be such by
representatives of the State, violates due process, even when the State, although not
soliciting the perjury, allows it to go uncorrected when it appears. Amended Petition
at 59. To prove a due process violation under Napue, a petitioner must establish that
(1) the testimony was false, (2) the government knew the testimony was false, and
(3) the testimony was material. See Summers v. Dretke, 431 F.3d 861, 872 (5th Cir.
2005), cert. denied, 549 U.S. 840 (2006); United States v. Mason, 293 F.3d 826, 828
(5th Cir. 2002).
Robertson also relies upon Johnson v. Mississippi, 486 U.S. 578, 590 (1988), in
support of his assertion that his death sentence was procured in violation of the
Eighth Amendment because it was based on “materially inaccurate” evidence.
Amended Petition at 61-62; Reply at 8. The United States Court of Appeals for the
Fifth Circuit has held that, notwithstanding the difference between a claim of false
testimony and the use of an invalid aggravator, to sustain a claim under Johnson, a
habeas petitioner must establish that the testimony was “false and material.” See
Hernandez v. Johnson, 213 F.3d 243, 252 (5th Cir.) (citing Fuller v. Johnson, 114 F.3d

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491, 497 (5th Cir. 1997), cert. denied, 531 U.S. 966 (2000)).2 This would correspond
with two of the three elements of a due process claim under Napue.
C. Analysis
Robertson argues that he is entitled to relief because the state court’s decision
to deny relief was contrary to and an unreasonable application of federal law, and
also was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Amended Petition at 57, 61-62 (citing 28
U.S.C. § 2254(d)). In addition to the five areas of concern with Nelson’s testimony
presented to the CCA, however, Robertson also asserts that Nelson had given false
testimony in a different trial affecting her credibility that was never revealed to
Robertson’s jury, and that she had “testified to a speculative ‘parade of horribles,’
with no evidence whatsoever that Mr. Robertson had altered his coffee pot and
scalded a guard with boiling water, or broke his headphones and transmitted gang
information.” Amended Petition at 53, 57-59.

2

Robertson also argues an opinion of the CCA in support of this claim.
Amended Petition at 59 (citing Estrada v. State, 313 S.W.3d 274, 287 (Tex. Crim.
App. 2010)); Reply at 8-9. Under § 2254(d), however, only a state court decision
that is “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” can make the
required showing. This would not include state court decisions, but “only ‘the
holdings, as opposed to the dicta, of [United States Supreme Court] decisions.’”
Woodall, 134 S. Ct. at 1702.
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Were this court to consider these additional assertions as part of the claim
presented in these proceedings, it would render the entire claim unexhausted and,
now, subject to a procedural bar by the Texas abuse-of-the-writ rule. See Coleman,
501 U.S. at 735 n.1; Woodfox, 609 F.3d at 793. This state rule is an independent and
adequate state ground for to support a procedural bar against federal habeas review.
Canales, 765 F.3d at 566. It is unnecessary, however, to construe this claim as
unexhausted and procedurally barred.
Because Robertson argues only that the state court’s decision was unreasonable
under § 2254(d), this court should properly limit itself to the asserted § 2254(d)
inquiry. Under that standard, Robertson’s new evidence and arguments cannot be
considered by this court because they were not part of the claim submitted to the
CCA on direct appeal. See Pinholster, 563 U.S. at 185.
In the alternative, these additional assertions would lack merit. Robertson
complains that Nelson gave inaccurate testimony in another capital case about the
classification status of that other defendant (Juan Lizcano) that Robinson’s jury
never heard. Amended Petition at 59. At the hearing on Robertson’s motion for new
trial, Robertson’s counsel agreed with the State that the testimony in that other case
did not apply to Robertson because it was limited to inmates sentenced to life
without parole. Supp. RR (docket entry 30) at 4-5. Robertson has not shown that
Nelson’s testimony in that other case would have been relevant to Nelson’s

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testimony in Robertson’s case and admissible to impeach her. Therefore, even if this
issue had been exhausted, it lacks merit.
Further, Robertson has not shown that any of Nelson’s testimony regarding
the so-called “parade of horribles” was in any way false or misleading. Nelson
explained that Robertson’s prison disciplinary infractions may “sound like nothing”
but are based in rules that are designed to protect both the inmates and the guards
from certain safety and security risks that she described. 42 RR (docket entry 30-8)
at 98-103. Robertson does not attempt to show that any of Nelson’s testimony
regarding these items was incorrect or in conflict with any testimony of his expert,
Woods. Robertson merely complains that the CCA later characterized these prison
infractions as “minor.” Amended Petition at 58.
In any event, Robertson has not shown that the state court unreasonably
determined that Nelson’s testimony was not false or misleading. In fact, the state
court’s determinations appear to be correct.
A mere disagreement between experts is not normally sufficient to show that
the opinion testimony of one of them is false or misleading. See Boyle v. Johnson, 93
F.3d 180, 186 (5th Cir. 1996) (holding that “the fact that other experts disagreed”
was insufficient to show the state’s expert testimony to be false or misleading), cert.
denied, 519 U.S. 1120 (1997); Clark v. Johnson, 202 F.3d 760, 767 (5th Cir.) (holding
disagreement between experts was insufficient to overcome state habeas court’s

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factual determination that the prosecution expert’s testimony was not false or
misleading), cert. denied, 531 U.S. 831 (2000); Harris v. Vasquez, 949 F.2d 1497, 1524
(9th Cir. 1990) (holding that conflicting psychiatric opinions did not show that the
state’s expert testimony was false, noting that “psychiatrists disagree widely and
frequently” (quoting Ake v. Oklahoma, 470 U.S. 68, 81 (1985)), cert. denied, 503 U.S.
910 (1992)); Campbell v. Gregory, 867 F.2d 1146, 1148 (8th Cir. 1989) (presenting
differing testimony from new expert in motion for new trial did not establish falsity
of prior expert’s opinion offered at trial); Devoe v. Davis, No. A-14-CA-151-SS, 2016
WL 5408169, at *18 (W.D. Tex. Sept. 27, 2016) (rejecting claim that state
presented false or misleading expert testimony regarding the TDCJ’s inmate
classification system). But even if it could be sufficient, Robertson’s expert testimony
would not.
Robertson’s expert, Woods, did not accuse Nelson of perjury but expressed his
opinions as speculation about the accuracy of her opinions and disagreement with
word choices. Woods admitted that he did not have the hard evidence or statistics to
disprove Nelson and used language indicating that he was guessing she was probably
wrong. Rather than accusing Nelson of testifying falsely, Woods emphasized that he
merely disagreed with her choice of words or focused on language that he read into
the transcript of her testimony that does not appear in the record before this court.

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This is patently insufficient to show Nelson’s testimony to be false or misleading in
violation of the Constitution.
Robertson has not overcome the presumption of correctness afforded state
court findings, much less shown that the state court unreasonably determined that
Nelson’s testimony was not false or misleading in violation of the Constitution. In
fact, the record before this court supports the state court’s decision. Therefore,
Robertson’s second claim is DENIED.
VII
Robertson’s application for a writ of habeas corpus is DENIED.
In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C.
§ 2253(c), and after considering the record in this case, the court DENIES Robertson
a certificate of appealability because he has failed to make a substantial showing of
the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 338
(2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); 28 U.S.C. § 2253(c)(2). If
Robertson files a notice of appeal, he may proceed in forma pauperis on appeal.
SO ORDERED.

March 30, 2017.
___________________________________
A. JOE FISH
Senior United States District Judge

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