Halprin v. Stephens, Director TDCJ-CID
MEMORANDUM OPINION AND ORDER DENYING RELIEF: Halprins fourth claim is dismissed as procedurally barred; alternatively, it is denied for lack of merit. Halprin's remaining claims are all denied for lack of merit. Halprin's request for an e videntiary hearing is denied. Habeas corpus relief 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. (Ordered by Judge Sam A Lindsay on 9/27/2017) (ams)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
RANDY ETHAN HALPRIN,
LORIE DAVIS, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Civil Action No. 3:13-CV-1535-L
(Death Penalty Case)
MEMORANDUM OPINION AND ORDER DENYING RELIEF
Before the court is the application for a writ of habeas corpus (“Application”) filed by Randy
Ethan Halprin (“Halprin”) pursuant to 28 U.S.C. § 2254. Halprin complains that a document ranking
him among his co-actors by leadership qualities was not admitted into evidence at trial, that he was
convicted and given the death penalty without evidence that he killed or intended to kill the victim,
and that his prior counsel provided ineffective assistance. After considering the application, related
briefing, the state court record, and applicable law, the court concludes that Halprin’s complaint that
he was convicted and given the death penalty without evidence of intent to kill is dismissed as
procedurally barred; and, in the alternative, it is denied for lack of merit. Halprin’s remaining claims
are all denied for lack of merit. Halprin’s Application is denied.
Halprin is one of seven inmates (known as the “Texas Seven”) who escaped from a Texas
prison and went on a crime spree that included the murder of police Officer Aubrey Hawkins while
they fled after robbing an Oshman’s sporting goods store on Christmas Eve in 2000. Halprin’s
Memorandum Opinion and Order - Page 1
conviction and death sentence were affirmed on direct appeal on June 29, 2005. See Halprin v.
State, 170 S.W.3d 111 (Tex. Crim. App. 2005). He filed an application for a post-conviction writ
of habeas corpus in the state trial court on April 6, 2005, that was denied by the Texas Court of
Criminal Appeals (“CCA”) on March 20, 2013. See Ex parte Halprin, No. WR-77,175-01, 2013
WL 1150018 (Tex. Crim. App. 2013). Through appointed counsel, Halprin filed a federal petition
for writ of habeas corpus (Doc. 5) on March 20, 2014, and an amended petition (Doc. 15) with brief
in support (Doc. 15-1) on June 17, 2014. Respondent Lorie Davis (“Respondent”) has filed an
answer (Doc. 23), and Halprin has filed his reply (Doc. 30).
Grounds for Relief
Halprin presents nine grounds for relief in three groups, as follows:
1. The State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose
the identity of the author of the Ranking Document that constituted important
2. The trial court violated Halprin’s rights under the Fifth, Eighth and Fourteenth
Amendments by preventing him from offering the Ranking Document as important
mitigating evidence in the punishment phase of his trial.
3. Alternatively, trial counsel provided ineffective assistance in failing to discover
the identity of the author of the Ranking Document.
4. Halprin’s death sentence violates the Fifth and Eighth Amendments because of
the lack of evidence of his intent to kill.
Assistance of Counsel
5. Trial counsel provided ineffective assistance in the guilt phase of trial in failing
to request a charge on the lesser included offense of felony murder.
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6. Trial counsel provided ineffective assistance in the guilt phase of trial in failing
to object to improper impeachment evidence, request a limiting instruction and object
to arguments based on this evidence.
7. Trial counsel provided ineffective assistance in the guilt phase of trial in failing
to object to the prosecutor’s argument to the jury that its verdict did not need to be
8. Trial counsel provided ineffective assistance in the punishment phase of trial in
failing to request an anti-parties charge.
9. Appellate counsel provided ineffective assistance in failing to complain on direct
appeal that the trial court refused to permit the introduction of certain mitigating
Halprin also requests an evidentiary hearing. Respondent contends that Halprin’s fourth claim is
procedurally barred and that each of Halprin’s claims lacks merit and was properly denied by the
Standard of Review
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 (the “AEDPA”). This statute sets forth a
number of preliminary requirements that must be satisfied before reaching the merits of a claim.
Under the AEDPA, a federal court may not grant habeas relief on any claim that the state
prisoner has 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. 86, 103 (2011). A federal court, however,
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).
When 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
Memorandum Opinion and Order - Page 3
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). 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 the
AEDPA otherwise requires, unless the state court reached the merits in the alternative. 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 v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997));
Mercadel v. Cain, 179 F.3d 271, 274-75 (5th Cir. 1999) (“[T]he 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.).
When the state court includes an alternative analysis of the merits of the claim, the AEDPA
deference applies to the state court alternative merits findings. See Busby v. Dretke, 359 F.3d 708,
721 n.14 (5th Cir. 2004) (affording deference to merits finding when state court “invoked a
procedural bar as an alternative basis to deny relief”); accord Rolan v. Coleman, 680 F.3d 311, 319
(3rd Cir. 2012) (holding that the “AEDPA deference applies when a state court decides a claim on
procedural grounds and, alternatively, on the merits”); Stephens v. Branker, 570 F.3d 198, 208 (4th
Cir. 2009) (“[W]e agree with our sister circuits that an alternative merits determination to a
procedural bar ruling is entitled to the AEDPA deference.”); Brooks v. Bagley, 513 F.3d 618, 624-25
(6th Cir. 2008) (holding that the state “court’s alternative merits ruling receives AEDPA deference”);
Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (affording deference when state court found
“claim to be unpreserved, and, in any event, without merit”); Johnson v. McKune, 288 F.3d 1187,
1192 (10th Cir. 2002) (affording deference when “the state court relied on the merits as an
alternative basis for its holding”); Bigby v. Thaler, No. 4:08-CV-765-Y, 2013 WL 1386667, at *19Memorandum Opinion and Order - Page 4
*20 (N.D.Tex. Apr. 5, 2013) (affording deference to state court’s “alternative analysis” of claim on
the merits”); Battaglia v. Stephens, No. 3:09-CV-1904-B, 2013 WL 5570216, at *24 (N.D. Tex. Oct.
9, 2013), COA denied, 621 F. App’x 781 (5th Cir. 2015), cert. denied, 136 S. Ct. 803 (2016).
If the state court denies the claim on the merits, a federal court may not grant relief unless
it first determines that the claim was unreasonably adjudicated, 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
(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 restricts a 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. It 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 demands that state-court rulings be
given the benefit of the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citations
Memorandum Opinion and Order - Page 5
omitted) (quoting Richter, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
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 that 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 when it should not so apply, or unreasonably refuses to
extend that principle to a new context when 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 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 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.”
Memorandum Opinion and Order - Page 6
In the event the state court adjudication is deemed unreasonable, the federal court must still
determine whether habeas relief would otherwise be appropriate. “When a state court’s adjudication
of a claim is dependent on an antecedent unreasonable application of federal law, the requirement
set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the
deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 953-54 (2007). In
those rare cases when a state prisoner makes the difficult showing required under § 2254(d), the
federal court must make its independent determination of whether habeas relief is appropriate and
conduct whatever hearings and evidentiary development are necessary to properly make that
determination. See, e.g., Smith v. Cain, 708 F.3d 628, 635 (5th Cir. 2013) (holding that district court
did not err in conducting the evidentiary hearing upon which habeas relief was granted); Wiley v.
Epps, 625 F.3d 199, 207 (5th Cir. 2010) (“[W]hen a petitioner makes a prima facie showing of
mental retardation, a state court’s failure to provide him with an opportunity to develop his claim
deprives the state court decision of the deference ordinarily due under the AEDPA.”) (citation
omitted); Hayes v. Thaler, 361 F. App’x 563, 566 (5th Cir. 2010) (applying Panetti standard in
review of a Batson jury selection habeas claim).
In his first three complaints, Halprin focuses on a document from the Texas Department of
Criminal Justice that compared and ranked the Texas Seven by their character for leadership, that
will be referred to in this order as the “Ranking Document.”* See Am. Pet. at 6-7; Am. Pet. Br. at
The parties do not refer to this document in the same way, but the state court referred to it
as the “Ranking Document.” (6 State Habeas Clerk Record (“SHCR”) at 2574.) The state court’s
title will, therefore, be used.
Memorandum Opinion and Order - Page 7
3-23. This document ranked Halprin as the lowest in terms of leadership character, stating that he
“never exhibited leadership qualities” and “consistently worried about whether his work was
acceptable to the civilian workers,” one of whom thought Halprin was undergoing some kind of
depression. Am. Pet. at App. “A”. Halprin first complains that the State violated his due process
rights set out in Brady v. Maryland, 373 U.S. 83 (1963), by failing to identify the author of the
Ranking Document so that it could be admitted into evidence at trial. In connection with this
complaint, Halprin’s second complaint is that the trial court’s exclusion of this evidence violated his
rights under the Fifth, Eighth and Fourteenth Amendments to have this mitigating evidence
considered in sentencing. Halprin makes his third complaint in the alternative to assert that his trial
counsel was ineffective in failing to discover the author of this report. Because Halprin’s claims of
ineffective assistance of trial counsel are addressed in part VI of this opinion, his third claim is more
fully addressed there.
State Court Proceedings
Before trial, the Dallas County District Attorney’s Office disclosed the Ranking Document
to Halprin’s counsel as part of discovery and to his prison expert, S. O. Woods, among many other
Texas Department of Criminal Justice (“TDCJ”) records. See 53 Reporter’s Record (“RR”) at 1315; Vol. 2 State Habeas Reporter’s Record of Evidentiary Hearing on August 20, 2010 (“SHRR”)
at 66-67; 6 SHCR at 2574, 2577. At trial, Halprin attempted to introduce this document under the
business records exception to the hearsay rule, but the trial court sustained the State’s objection
because Halprin did not prove that the statements in it were within the personal knowledge of an
employee of TDCJ. See 51 RR at 119-20, Def. Ex. 39; 53 RR at 13-16.
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In the direct appeal, Halprin presented his second complaint that the trial court violated his
rights under the Eighth Amendment by excluding the evidence. The CCA rejected his claim because
he had not shown that the evidence came within an exception to the hearsay rule. See Halprin, 170
S.W.3d at 113-16. Specifically, the CCA found that there was “no evidence showing who prepared
the document or whether it is a record of regularly conducted activity.” Id. at 116. The CCA also
found that the mitigating evidence contained in the document would have been cumulative of other
mitigating evidence presented at trial, so that even if the document were shown to come within the
exception, any error in refusing to admit it was harmless. See id.
During the state habeas proceedings, Halprin discovered that former Department of Public
Safety (“DPS”) Special Crimes Investigator Hank Whitman authored the report with the assistance
of a handful of other law enforcement agents employed by DPS and TDCJ. See 6 State Habeas Clerk
Record (“SHCR”) at 2575. Based on this discovery, Halprin asserted his first and third claims.
The state habeas court found that “S.O. Woods, Applicant[’]s prison expert at trial and in
these writ proceedings, deduced Whitman’s identity from Woods’ review of records in possession
of TDCJ’s Office of Inspector General (OIG).” 6 SHCR at 2576 (citing S.O. Woods’s Interrogatory
Answers, filed 10/26/10). The state court also found that the State had, in effect, disclosed the
information in question prior to Halprin’s trial. “Although Woods may not have identified Whitman
as the drafter of the ranking document until 2005, the Court finds that TDCJ-OIG first disclosed the
documentation from which he gleaned that information, as well as the Rivas transcript and the
Dunning interview summary, back in May 2003.” 6 SHCR at 2578.
The state habeas court also found that the Ranking Document was inadmissible and,
therefore, immaterial for Brady purposes. The state court found that the Ranking Document
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constituted hearsay, and that Halprin offered the document under the business records exception to
the hearsay rule, TEX. R. EVID. 803(6), but failed to show that the records came within that
exception. See 6 SHCR at 2579. Halprin argued that if he had known Whitman’s identity, he would
have been able to make the required showing to bring the Ranking Document within the business
records exception, but the state court found otherwise.
(133) On its face the ranking document states that the information it contains was
obtained from interviews with “civilian workers correctional officers and
several inmates who worked closely with the escapees ...” (Defense Ex. 39;
Applicants Ex. B.) Thus, the document is composed largely of the hearsay
statements of several unidentified individuals.
* * *
(136) The Court finds that Applicant fails to show definitively who contributed to
the document much less which individuals provided which information in the
(137) Moreover[,] the Court finds that at least some of that information was
received from inmates who had no business duty to report what they knew
much less report it accurately.
6 SHCR at 2580.
Further, the state court both on direct appeal and in state habeas review found that the
information in the Ranking Document was cumulative of other evidence admitted at trial. See
Halprin, 170 S.W.3d at 116; 6 SHCR at 2581-83. Specifically, the state court on direct appeal found
the record also reflects that appellant presented from other sources a significant
amount of mitigating evidence that was cumulative of the mitigating evidence
contained in the document. A TDCJ civilian employee (Moczygemba) testified that
he would rank appellant’s intelligence “at the very bottom” of the Texas Seven.
Another TDCJ civilian employee (Burgess) testified that appellant was not “a leader
type.” Appellant also testified at length that he was a follower and not a leader and
that his participation in the victim’s murder was minimal. Appellant’s counsel also
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argued appellant’s lack of intelligence and leadership qualities to the jury during
closing jury arguments at the punishment phase.
Halprin, 170 S.W.3d at 116 (footnotes omitted). On state habeas review, lead trial counsel testified
that the defense had received the value of the evidence in this document out of the witnesses who
testified. See 2 SHRR at 78, 132-35. Subsequently, the state court again found that the evidence in
the Ranking Document was cumulative of the evidence presented at trial and that these civilian
employees provided more credible evidence than the statements from Halprin’s co-defendant and
fellow inmates. See 6 SHCR at 2581.
The state habeas court also found that the jury was left with an impression of the Ranking
Document that was more favorable to Halprin’s case than they would have had if it had actually been
admitted. “In particular, [Halprin’s trial] counsel left the jury with the misimpression that law
enforcement had ranked Applicant as the least dangerous, rather than merely the least likely to lead.”
6 SHCR at 2582. The state court concluded that the lack of additional evidence of the same
character traits and law enforcement’s leadership ranking of the escapees was insufficient to
undermine confidence in the jury’s verdict at guilt or punishment. See 6 SHCR at 2583.
In his first claim, Halprin asserts that the State suppressed the identity of the author of the
Ranking Document and that it was important mitigating evidence that the state trial court improperly
excluded from the evidence admitted at the punishment stage of Halprin’s trial. See Am. Pet. Br.
at 4, 6-20. Respondent argues that the information was not suppressed because it was made as
available before trial and was not material under Brady because knowledge of the identify of the
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author of the Ranking Document would not have made it admissible at trial and it was cumulative
of the evidence that was admitted. See Ans. at 17-25.
As noted above, the state court on habeas review found that knowledge of the identity of the
author of the Ranking Document would not have made it admissible under state law. See 6 SHCR
at 2579-80. Whether the state court correctly applied its own evidentiary rules is not generally a
matter of federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding
complaints regarding the admission of evidence under California law did not present grounds for
federal habeas relief absent a showing that admission of the evidence in question violated due
process); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (recognizing that federal habeas relief will not
issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41 (1984) (holding a federal court may
not issue the writ on the basis of a perceived error of state law). To the extent, however, that this
evidentiary matter is central to the determination of materiality under Brady, Halprin has not satisfied
the high and difficult standard set out in 28 U.S.C. § 2254(d) for the review of claims adjudicated
on the merits by the state court.
The state court’s finding that the evidence was not suppressed was reasonable in light of the
evidence before the state court. It is undisputed that the prosecutors did not know the identity of the
author of the Ranking Document at the time of trial. At trial, defense counsel argued that defense
expert, S.O. Woods, received the Ranking Document among the several documents that were
disclosed by the state prior to trial. See Halprin, 170 S.W.3d at 115. This same defense expert was
able to ascertain the author’s identity from those records after the trial. See 6 SHCR at 2577-78.
Since the same defense expert was able to discover the identity of the author from the same records
Memorandum Opinion and Order - Page 12
disclosed prior to trial, the state court’s finding that the information had not been suppressed was not
Even if the evidence were suppressed, Halprin has not shown that it was material. The state
court’s findings that the identity of the author would not have made the Ranking Document
admissible at trial and that the defense was able to get the same mitigation information in through
other witnesses, supports its finding that the author’s identity was not material for Brady purposes.
This was not an unreasonable application of clearly established federal law. Although suppressed
evidence need not be admissible to be material under Brady, “it must, somehow, create a reasonable
probability that the result of the proceeding would be different.” United States v. Brown, 650 F.3d
581, 588 (5th Cir. 2011). “Thus, we ask only the general question whether the disclosure of the
evidence would have created a reasonable probability that the result of the proceeding would have
been different.” Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999).
Halprin has not shown how earlier knowledge of the identity of the author of the report would
have created a reasonable probability that the result of the proceeding would have been different.
He argues that it would have made the report admissible, but the state court rejected that argument
on the basis of state law. See 6 SHCR at 2578. This court cannot overrule the state court’s
conclusion that the evidence would be inadmissible under state law because “[u]nder § 2254, federal
habeas courts sit to review state court misapplications of federal law[;] [they] lack[ ] authority to rule
that a state court incorrectly interpreted its own law.” Charles v. Thaler, 629 F.3d 494, 500-01 (5th
Cir. 2011); see also McCarthy v. Thaler, 482 F. App’x 898, 903 (5th Cir. 2012) (holding that state
court conclusion in habeas review that proffered evidence would have been inadmissible under state
law was beyond federal habeas review). Further, the state court’s findings that the information in
Memorandum Opinion and Order - Page 13
the Ranking Document was cumulative of other evidence admitted at trial was supported by the
evidence. Accordingly, Halprin has not shown that the identity of the author of the Ranking
Document was material under Brady.
Halprin has not made the showing required by § 2254(d) regarding the state court’s
adjudication of his Brady claim. Accordingly, Halprin’s first claim is denied.
Exclusion of Mitigating Evidence
In his second claim, Halprin asserts that the exclusion of the Ranking Document prevented
the consideration of important mitigating evidence at trial in violation of his rights under the Fifth,
Eighth, and Fourteenth Amendments. See Am. Pet. Br. at 3, 17-22. Halprin presents this claim in
the alternative to his Brady claim and argues that it should not have made any difference who the
author of the Ranking Document was because the trial court knew that it was the product of a state
agency’s investigation, should have been admitted, and its exclusion constituted cruel and unusual
punishment and violated his fundamental right to due process and the guarantee of an impartial trial.
See Am. Pet. at 20-22. Respondent argues that Halprin’s claim merely attacks an evidentiary ruling
and does not rise to the level of a constitutional challenge that would be cognizable in federal habeas
review. See Ans. at 26-28. Respondent also argues that, even if it did, Halprin has not shown that
the state court’s adjudication was incorrect, contrary to, or an unreasonable application of, clearly
established federal law. See Ans. at 28-31.
As explained in connection with this court’s analysis of his Brady claim, the state court’s
finding—that this evidence was inadmissible under state law and would have remained so even if
the identity of the author of the Ranking Document had been known—ordinarily precludes a finding
by this court that it was improperly excluded from evidence under state law.
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Due process is implicated only for rulings of such a magnitude or so
egregious that they render the trial fundamentally unfair. It offers no authority to
federal habeas courts to review the mine run of evidentiary rulings of state trial
courts. Relief will be warranted only when the challenged evidence played a crucial,
critical, and highly significant role in the trial.
The due process inquiry must consider the significance of the challenged
evidence in the context of the entire trial. We have held that the Due Process Clause
does not afford relief where the challenged evidence was not the principal focus at
trial and the errors were not so pronounced and persistent that it permeates the entire
atmosphere of the trial. This is a high hurdle, even without AEDPA’s added level
Gonzales v. Thaler, 643 F.3d 425, 430–31 (5th Cir. 2011) (footnotes and internal quotations
Although it is clear that defense counsel sought diligently to get the Ranking Document
admitted, it is also clear that counsel got the value of that evidence admitted through the testimony
of live witnesses, making it cumulative of the evidence presented at trial. See 2 SHRR at 78, 132-35;
6 SHCR at 2581. Further, Halprin has not shown that the evidentiary ruling was incorrect.
Therefore, the absence of this evidence did not render the trial fundamentally unfair or violate
Halprin’s due process rights.
Halprin argues that the exclusion of this evidence also violated his rights under the Eighth
and Fourteenth amendments. See Am. Pet. Br. at 19-20 (citing Lockett v. Ohio, 438 U.S. 586
(1978)). In Lockett, the Supreme Court held that these constitutional provisions require that the
sentencer “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that the defendant proffers as a basis
for a sentence less than death.” 438 U.S. at 604 (footnotes omitted). The United States Court of
Memorandum Opinion and Order - Page 15
Appeals for the Fifth Circuit has construed this language to apply to categories rather than items of
The Lockett/ Eddings line of cases, however, deals with the exclusion of specific
types of evidence rather than specific items in evidence. In Lockett, the Supreme
Court struck down Ohio’s death penalty statute because it permitted the sentencer to
consider only three mitigating circumstances. 438 U.S. at 607-08, 98 S. Ct. 2954.
Likewise in Eddings, the Supreme Court reversed the petitioner’s death sentence
because the trial judge refused to admit entire areas of mitigating evidence: there,
evidence relating to the circumstances of the petitioner’s “unhappy upbringing and
emotional disturbance.” 455 U.S. at 109, 113-15, 102 S. Ct. 869. Here, the trial
court did not disallow evidence that Simmons was remorseful for his actions; instead,
it excluded a particular item in which Simmons expressed remorse because the court
found it unreliable hearsay. Therefore, Simmons cannot accurately claim that the
jury was deprived of considering “as a mitigating factor, any aspect of [his] character
or record [or] any of the circumstances of the offense.” Lockett, 438 U.S. at 604-05,
98 S. Ct. 2954.
Simmons v. Epps, 654 F.3d 526, 544 (5th Cir. 2011); see also Alley v. Bell, 392 F.3d 822, 831-32
(6th Cir. 2004) (holding that “since the trial court had allowed Alley to present the information in
question to the jury in a slightly different format than the one he sought to employ, and it had not
applied the relevant state evidentiary law in a ‘mechanical, arbitrary, or disproportionate’ manner,
the Tennessee court’s resolution of the issue was not unreasonable or contrary to Lockett.”) (citing
Alley v. Bell, 307 F.3d 380, 399 (6th Cir. 2002)).
In Halprin’s case, the trial court did not rule that he could not present evidence of his
character for leadership, even as it compared with his co-actors, but merely that the report itself was
not admissible because it contained multiple levels of unreliable hearsay.
The issue is that the conclusions on the entire document are
all from hearsay from unnamed sources. That’s the problem
with the document.
We didn’t know who made it, either.
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You don’t know who the author is, you don’t know where the
conclusions came from, you can’t go back and find out any of
the source information that that ultimate opinion comes from.
So I have reviewed 39, I understand your objections. No
question about its authenticity. It’s simply not admissible
because of hearsay.
53 RR at 15. In fact, the trial court allowed Halprin to develop this type of evidence, his lack of
leadership character, through the witnesses who testified at trial. See Halprin, 170 S.W.3d at 116.
Because Halprin has not shown a violation of his constitutional rights in the exclusion of this
evidence and the state court findings have not been shown to be unreasonable, Halprin has not
established an entitlement to relief. Therefore, Halprin’s second claim is also denied.
Ineffective Assistance of Counsel
In this third claim, Halprin asserts in the alternative that his trial counsel was ineffective in
failing to discover the identity of the author of the Ranking Document and obtain its admission at
trial. Because ineffective-assistance-of-counsel claims are more thoroughly addressed in section VI
of this order, this claim is addressed there.
Culpability for Death Penalty
In his fourth claim, Halprin asserts that he was sentenced to death without a showing of his
intent to kill in violation of the Fifth and Eighth Amendments. See Am. Pet. at 7; Am. Pet. Br. at
24-65. Respondent asserts that the claim is procedurally barred and lacks merit. See Ans. at 32-42.
State Court Proceedings
In his first and thirtieth claims on state habeas review, Halprin complained that the evidence
did not support a finding that he either intended Officer Hawkins’s death or exhibited a reckless
disregard for human life and played a major role in the crime. See 2 SHCR at 673-703, 917-18; 6
Memorandum Opinion and Order - Page 17
SHCR at 2561. Relying on Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S.
137 (1987), Halprin contended that his death sentence was disproportionate to his crime and thus
violates his Eighth Amendment right against cruel and unusual punishment because no reasonable
juror could find he possessed a culpable mental state sufficient to render him death eligible. He also
claimed that the finding by the jury on the second special issue that he anticipated a human life
would be taken did not constitute a finding that he acted with a reckless disregard for human life.
Therefore, Halprin contended that he was not eligible for the death penalty.
The state court found the claims procedurally barred because they had not been raised at trial
or on direct appeal. After observing that Texas law required an objection at trial to preserve the error
for collateral review, the state court found that Halprin’s failure to raise the issue at trial prevented
him from raising in on postconviction habeas review.
The Court finds that at trial Applicant only facially challenged the
constitutionality of the anti-parties special issue arguing that a finding that an
accused anticipated the taking of a human life was not a mental state
sufficient to warrant a death sentence. Applicant never raised the claim that
the evidence is insufficient to show that he possessed the requisite mental
state to render him death eligible under the Eighth Amendment. Likewise he
never raised the claim that the anti-parties special issue was unconstitutional
as applied to him. Applicant could have raised both of these claims in a
motion for new trial but did not. CR 60.
Because Applicant did not avail himself of the prior opportunity to present
his claims to this Court, the Court concludes that collateral review of
Applicants first and thirtieth grounds for relief are procedurally barred and
should be dismissed.
6 SHCR at 2561. The state court also found that these were claims that could have been, but were
not, raised on direct appeal. Therefore, they were also procedurally barred for that reason.
Habeas corpus will not lie as a substitute for direct appeal. Ex parte
Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). Even a constitutional
Memorandum Opinion and Order - Page 18
claim is forfeited if Applicant had the opportunity to raise it on appeal and
did not. The writ of habeas corpus is an extraordinary remedy that is
available only when there is no other adequate remedy at law. Id.
The Court finds that nothing prevented Applicant from raising these claims
on direct appeal and that Applicant presents no evidence in support of these
claims that was not already part of the appellate record.
The Court finds that Applicant[’]s first and thirtieth grounds for relief are an
improper attempt to use the writ as a substitute for appeal.
Therefore the Court concludes that Applicant[’]s first and thirtieth grounds
for relief are procedurally barred and should be dismissed. Id.
6 SHCR at 2562.
Alternatively, the state court found that these claims lacked merit.
The Court finds that Applicant’s death sentence is not disproportionate to his
crime. Thus, the Court concludes Applicant’s sentence does not constitute
cruel and unusual punishment.
Furthermore, the Court finds that, by their affirmative answer to the second
special issue, the jury found that Applicant possessed a culpable mental state
sufficient to render him death eligible.
Under the Eighth Amendment, a party to a felony during which a murder is
committed is eligible for the death penalty if he himself killed, attempted to
kill, intended to kill or intended that lethal force be used, or acted with a
reckless indifference to human life and was a major participant in the
underlying felony. Tison, 481 U.S. at 158; Enmund, 458 U.S. at 797.
Applicant contends a reasonable juror could only conclude from the evidence
that he had no involvement in the shooting of Officer Hawkins, that he played
a minor role in the Oshman’s robbery, and that he justifiably believed no one
would be hurt.
The Court finds the evidence shows that Applicant was a major participant
in the robbery and the murder. The record is replete with evidence that
reflects Applicant’s intent to kill and his reckless indifference to Officer
Hawkins’s life. There is even evidence from which the jury could conclude
that Applicant himself fired a lethal shot.
Memorandum Opinion and Order - Page 19
6 SHCR at 2562-63. The state court then proceeded to make more detailed findings regarding its
conclusions that the evidence was sufficient to prove the requisite culpability, that the jury found
Halprin acted with reckless indifference to Officer Hawkins’s life, and that Halprin possessed the
culpability required for imposition of the death penalty. See 6 SHCR at 2563-72.
The state court found this claim to be barred by both the lack of a contemporaneous objection
and the failure to raise the claim in the direct appeal, even though it was a claim that could have, and
should have, been brought in that appeal. Both of these bases for procedural bar have been
recognized as regularly followed and consistently applied state procedural bars that are adequate to
bar federal habeas review of the merits of the claim. The Texas contemporaneous objection rule
constitutes an adequate and independent state ground that bars federal habeas review of a petitioner’s
claims. See Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007); Corwin v. Johnson, 150 F.3d
467, 473 (5th Cir. 1998) (“This Circuit has held that the Texas contemporaneous objection rule is
strictly or regularly applied evenhandedly to the vast majority of similar claims, and is therefore an
adequate procedural bar.”) In Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005), the Fifth Circuit
In Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996), the court
found that claims which should have been raised on direct appeal are procedurally
defaulted. Furthermore, in Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. ), this
court established that “the Gardner rule set forth an adequate state ground capable
of barring federal habeas review.”
This circuit has also observed that “[t]he procedural-default doctrine precludes federal habeas review
when the last reasoned state-court opinion addressing a claim explicitly rejects it on a state
procedural ground.” Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004) (citing Ylst v.
Memorandum Opinion and Order - Page 20
Nunnemaker, 501 U.S. 797, 801, 803 (1991)). Because Halprin has not demonstrated causation and
prejudice, or that a failure to address the claim will result in a fundamental miscarriage of justice,
this claim is procedurally barred. See Coleman, 501 U.S. at 750. Accordingly, Halprin’s fourth
claim is dismissed as procedurally barred.
In the alternative, the state court’s alternative findings that the claim lacks merit are entitled
to deference under § 2254(d) & (e)(1). See Busby, 359 F.3d at 721 n.14; Bigby v. Thaler, No. 4:08CV-765-Y, 2013 WL 1386667, at *19-20 (N. D. Tex. Apr. 5, 2013) (affording deference to state
court’s “alternative analysis” of claim on the merits”), COA denied sub nom Bigby v. Stephens, 595
F. App’x 350 (5th Cir. 2014), cert. denied, 135 S. Ct. 2359 (2015); Battaglia, 2013 WL 5570216,
at *24. Since Halprin has not shown that the state court’s findings were incorrect or that its
alternative adjudication of the merits of this claim was unreasonable or contrary to clearly
established federal law, he has not shown an entitlement to relief on this claim. Accordingly, if
Halprin’s fourth claim were not procedurally barred, it would be denied for lack of merit.
Effective Assistance of Counsel
In his third, fifth, sixth, seventh, and eighth claims, Halprin complains that he was denied the
effective assistance of counsel at his trial. In his ninth claim, Halprin complains that he was denied
the effective assistance of his counsel in his direct appeal. Respondent asserts that the state court
reasonably rejected each of these claims.
Standard of Review
Claims of ineffective assistance of counsel are measured by the familiar two-pronged
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of Strickland
requires the defendant to show that counsel’s performance was deficient. Id. at 687. The second
Memorandum Opinion and Order - Page 21
prong of this test requires the defendant to show prejudice 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.
In measuring whether counsel’s representation was deficient, a petitioner must show that
counsel’s representation fell below an objective standard of reasonableness. 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). 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 reasonable miscalculation or lack of foresight or for failing to
prepare for what appear to be remote possibilities.” Id. at 110.
To satisfy the second prong of the Strickland test, the petitioner must show that counsel’s
errors were so egregious “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 the counsel’s unprofessional errors, the result of the proceeding
Memorandum Opinion and Order - Page 22
would have been different.” Id. at 694. A reasonable probability under this test is “a probability
sufficient to undermine confidence in the outcome.” Id.
The deference required under the AEDPA must also be applied:
Because this case arises under AEDPA, Strickland is not the only standard we
must keep in mind. When a petitioner brings a Strickland claim under AEDPA, the
“pivotal question” is not whether the petitioner was deprived of his right to counsel
under the Sixth Amendment. Harrington v. Richter, [562 U.S. at 101]. Instead, “the
question is whether the state court’s application of the Strickland standard was
unreasonable.” Id. Both the Strickland standard and AEDPA standard are “highly
deferential,” and “when the two apply in tandem, review is doubly so.” Id. at 788
(internal quotation marks omitted).
Beatty v. Stephens, 759 F.3d 455, 463 (5th Cir. 2014), cert denied, 135 S. Ct. 2312 (2015); see also
Pinholster, 563 U.S. at 171-72 (“Review here is thus ‘doubly deferential’” . . . requiring a ‘highly
deferential’ look at counsel’s performance . . . through § 2254(d)’s ‘deferential lens.’”); Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (referencing “the doubly deferential judicial review that
applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”).
Failure to Identify Author
In this third claim, Halprin asserts in the alternative that his trial counsel was ineffective in
failing to discover the identity of the author of the Ranking Document and obtain its admission at
trial under the business records exception to the hearsay rule. See Am. Pet. at 3; Am. Pet. Br. at 2223. Respondent asserts that the state court’s merit determinations were not contrary to, or an
unreasonable application of, the Strickland standard. See Ans. at 42, 45-47.
As set out on Section IV above, the state court found that knowledge of the identity of the
author of the report would not have resulted in its admission under the state’s evidentiary rules.
Memorandum Opinion and Order - Page 23
Therefore, even if counsel were somehow deficient in failing to discover Whitman’s identity prior
to trial, it was not the reason for the exclusion of the Ranking Document. Accordingly, knowledge
of Whitman’s identity would not have shown “a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. Further, the state court found that the mitigating information in the Ranking Document was
admitted through other witnesses and that the jury was actually left with a more favorable impression
of this evidence than would likely have been the case if it had been admitted. See Halprin, 170
S.W.3d at 116; 6 SHCR at 2581-83.
Halprin has not undermined confidence in the outcome of his trial that is necessary to show
the prejudice required to sustain a claim of ineffective assistance of trial counsel for failing to
discover Whitman’s identity, much less that the state court unreasonably denied this claim. Because
Halprin has clearly not satisfied the prejudice prong, it is unnecessary to determine whether trial
counsel was deficient in failing to discover Whitman’s identity prior to trial or whether Halprin has
shown that the state court findings on this matter were incorrect. See id. at 697. Halprin’s third
claim is denied for lack of merit.
Lesser-Included Felony Murder Charge
In his fifth claim, Halprin complains that his trial counsel was ineffective in failing to request
a jury instruction allowing conviction for the lesser-included offense of felony murder. See Am. Pet.
at App.; Am. Pet. Br. at 71-80. Respondent asserts that the state court’s denial of this claim was not
unreasonable or contrary to Strickland. See Ans. at 42, 47-58.
Memorandum Opinion and Order - Page 24
State Court Proceedings
At the guilt/innocence stage of trial, Halprin was given an instruction on the lesser included
offense of aggravated robbery but did not request and was not given a charge on a lesser included
offense of murder. See Vol. 1, State Clerk’s Record (“CR”) at 22-36. Trial counsel argued to the
jury that Halprin committed aggravated robbery but not murder because he never shot anyone and
only intended to participate in a robbery. See 50 RR at 43, 45, 51, 53-55.
During the state habeas proceedings, lead trial counsel testified that he did not want an
instruction that said Halprin was guilty of murder, as his argument was that if Halprin was guilty of
anything it was aggravated robbery. See 2 SHRR at 145. The state habeas court found that Halprin
failed “to rebut the presumption that his counsel’s decision not to request a lesser-included offense
instruction on felony-murder constituted sound trial strategy.” 6 SHCR at 2606. The state court also
found that the language of a felony murder instruction would have been disadvantageous to Halprin’s
defense and would have conflicted with the sound defensive strategy that they had adopted. See 6
SHCR at 2607-10.
The state habeas court also found that Halprin would not have been entitled to an instruction
on the lesser included offense of felony murder. “Applicant was not entitled to a jury instruction on
felony murder unless there was some evidence that he and the other escapees did not knowingly
cause Officer Hawkins’s death.” 6 SHCR at 2611. The state court also found that, because the
State’s evidence demonstrated an intent to kill the officer by any of the accomplices, Halprin was
not entitled to an instruction on felony murder. See 6 SHCR at 2612-13. The state court concluded
that Halprin’s trial counsel could not be ineffective for failing to request an instruction that he was
not entitled to receive. See 6 SHCR at 2614.
Memorandum Opinion and Order - Page 25
The state habeas court also found that Halprin had failed to show prejudice because a lesser
included alternative to capital murder was included in the charge that had the same range of
punishment as felony murder. See 6 SHCR at 2614-16.
Halprin has not shown the state court’s adjudication to be incorrect, much less unreasonable
or contrary to federal law. The state court’s finding that trial counsel had a reasonable trial strategy
for deciding not to request the lesser included charge on felony murder was supported by trial
counsel’s testimony that was not shown to be false.
Further, the state court reasonably determined that Halprin was not entitled to a felony
murder instruction under state law. There was no evidence upon which the jury could have
concluded that none of the co-actors intended to kill Officer Hawkins. Therefore, there is no basis
to question the state court’s conclusion that Halprin was not entitled to a lesser instruction on
murder, and that trial counsel could not be ineffective for failing to request a charge that Halprin was
not entitled to obtain. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (“Failure to raise
meritless objections is not ineffective lawyering; it is the very opposite.”); Paredes v. Quarterman,
574 F.3d 281, 291 (5th Cir. 2009) (reasoning that the failure to make a meritless objection could not
have prejudiced inmate.); Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (“[F]ailure to assert
a meritless objection cannot be grounds for a finding of deficient performance.”); United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (“An attorney’s failure to raise a meritless argument . .
. cannot form the basis of a successful ineffective assistance of counsel claim because the result of
the proceeding would not have been different had the attorney raised the issue.”).
Memorandum Opinion and Order - Page 26
Further, as Respondent argues, the jury was given a logical alternative to capital murder in
the aggravated robbery charge that was submitted; and the kind of prejudice set out in Beck v.
Alabama, 447 U.S. 625, 635 (1980), did not exist in this case. See Ans. at 52, 57-58. Therefore,
Halprin has not established prejudice or shown that the state court’s rejection of his allegations of
prejudice was unreasonable. Neither prong of Strickland is met.
Because Halprin has not established that the state court unreasonably denied his fifth claim,
it is denied for lack of merit.
In Halprin’s sixth and seventh claims, he complains that trial counsel failed to object to the
improper cross-examination of him during the trial. See Am. Pet. at App.; Am. Pet. Br. at 80-101.
Halprin contends in his sixth claim that the state failed to give proper notice of its intent to use prior
extraneous bad acts to impeach him, defense counsel failed to request a limiting instruction on the
use of the acts of misconduct used to impeach him, and defense counsel failed to object to the
prosecutor’s jury arguments regarding these bad acts. See Am. Pet. at App.; Am. Pet. Br. at 80.
Halprin contends with respect to his seventh claim that his trial counsel failed to “object to detailed
questions concerning prior acts of misconduct that were not relevant to any issue in the case.” Am.
Pet. at App. Respondent asserts that the state court’s denial of these claims was not unreasonable
or contrary to Strickland. See Ans. at 42, 58-68.
State Court Proceedings
At trial, defense counsel called Halprin to the stand after informing him of his rights and
going over the risks and benefits of testifying. See 47 RR at 94-95, 97. On direct examination,
Halprin testified regarding his background, adoption, trouble growing up, family relationships, prior
Memorandum Opinion and Order - Page 27
offense and conviction, life in prison, letters and communications during incarceration,
circumstances regarding the escape and subsequent robberies, everyone’s roles, events leading up
to the death of Officer Hawkins, injury to his foot during the robbery and shooting, subsequent
events, surrender, confessions, media coverage, the jury’s role, and especially that he did not use his
gun or shoot Officer Hawkins during the robbery of Oshman’s or anticipate that anyone would get
hurt. On cross-examination, the prosecutor attacked his credibility and addressed his future
dangerousness by going through numerous letters that Halprin wrote containing lies, exploring the
details of his offense of injury to a child and his subsequent statements, his theft in Kentucky, his
fights and behavior in prison, interviews with the media with inconsistent statements, the
circumstances of the robbery and murder of Officer Hawkins and subsequent events, the likelihood
of a deadly result of the robbery and the reasonableness of Halprin’s stated belief that he did not
anticipate deadly violence. See 48 RR at 58-168; 49 RR at 3-24.
Halprin presented these claims in subpart F of the fourth claim in his application for a writ
of habeas corpus filed in the state court. See 2 SHCR at 753-69. The state habeas court found that
the prosecution provided notice of its intent to use this evidence, even though state law did not
require such notice for evidence used in cross examination. See 6 SHCR at 2616. The state court
also found that Halprin placed his general character and his character for truthfulness before the jury
when he testified. In addition, the state court, found that trial counsel made a reasonable strategic
decision to not object before the jury and to actually introduce much of the evidence in question,
including Halprin’s prison mail, to minimize its prejudicial impact and put it in the best light
possible, and to further their defensive theory that Halprin was a harmless buffoon and braggart, a
pathetic figure who overcompensated for his cowardice with stories and delusions of grandeur. See
Memorandum Opinion and Order - Page 28
6 SHCR at 2616-22. This was also consistent with the defensive strategy to portray that Halprin was
unintelligent, avoided confrontation and danger, was a follower rather than a leader, had a
diminished role in the offense, and was completely incapable of shooting or intending to shoot a
police officer. See 6 SHCR at 2622-27.
The state habeas court also found that the state’s arguments based on this evidence were
proper and, therefore, trial counsel were not deficient for failing to object. See 6 SHCR at 2627. The
state court additionally found that trial counsel decided against the limiting instruction to avoid
calling attention to the evidence, particularly since they were dissimilar from the charged offense and
not related to a pivotal issue at the trial. See 6 SHCR at 2628. The state court further found that
defense counsel used this same evidence in support of their argument that Halprin was not guilty of
capital murder. See 6 SHCR at 2628. The state court concluded that trial counsel had not acted
deficiently, but “that defense counsel acted strategically in their handling of the letters and the
impeachment evidence and that the strategy counsel employed was sound and within reasonable
professional judgment.” 6 SHCR at 2629.
The state court’s factual findings are supported by the record that was before the state court,
and its interpretation of state law is generally binding on this court. See Paredes v. Quarterman, 574
F.3d 281, 291 (5th Cir. 2009) (“[T]he Supreme Court has ‘repeatedly held that a state court’s
interpretation of state law . . . binds a federal court sitting in habeas corpus.’”); Bradshaw v. Richey,
546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court sitting
in habeas corpus.”). Halprin has not shown any of the state’s conclusions to be incorrect or its denial
Memorandum Opinion and Order - Page 29
of this claim to be unreasonable or contrary to federal law. Therefore, Halprin’s sixth and seventh
claims are denied.
Prosecutor Statements and Jury Argument
In the first part of Halprin’s eighth claim, he complains that trial counsel failed to object to
allegedly improper statements made by the prosecutor during voir dire and jury argument at the guilt
phase of the trial. See Am. Pet. at App.; Am. Pet. Br. at 101-13. Respondent asserts that the state
court’s denial of this claim was not unreasonable or contrary to Strickland. See Ans. at 42, 58-68.
Prosecutor’s Jury Argument
Halprin complains that his trial counsel failed to object to the prosecutor’s argument to the
jury that its verdict on guilt did not need to be unanimous concerning Halprin’s role in the offense
as either a principal, party or conspirator. See Am. Pet. Br. at 101-04. Specifically, during the guilt
phase of the trial, a prosecutor argued:
We went over the different theories. We can prove him as a principal, a
party, or as a co-conspirator. And, in fact, under the law you don’t have to agree, the
twelve of you, on which theory to convict him of. Four of you might think we have
proven him as a principal; four might think we may have proven it as party; and four
of you might think, well, they have proven him as a coconspirator, and you can all
find him guilty, a unanimous verdict.
Or you might all think, you know what? They’ve proven him all three ways,
because that’s how strong the evidence is in this case. So you will never get to the
lesser included, because this is an overwhelming case.
Am. Pet. Br. at 101-02 (quoting 50 RR at 57). Embedded in this claim is a complaint that trial
counsel failed to object to the jury instructions that allowed a nonunanimous verdict. See Am. Pet.
Br. at 104. Halprin argues that this allowed the jury to find him guilty with less than a unanimous
verdict because he was charged under two different capital murder statutes (murder of a peace officer
Memorandum Opinion and Order - Page 30
under Texas Penal Code § 19.03(a)(l) and murder in the course of committing or attempting to
commit robbery under § 19.03(a)(2)) that were submitted to the jury under the alternate theories of
culpability as either a principal, a party or a conspirator. Respondent argues that the state court’s
rejection of this claim was neither contrary to, nor an unreasonable application of, the Strickland
standard and, therefore, habeas relief is unavailable. See Ans. at 68-73.
State Court Proceedings
In subpart G to the fourth claim in his state application for a writ of habeas corpus, Halprin
made the same complaint that trial counsel failed to object to the prosecutor’s jury argument that he
makes before this court and included his same embedded claim that counsel also failed to object to
an improper court’s charge to the jury in the guilt phase. See 2 SHCR at 769-71. The state habeas
court found that the charge was appropriate, observing that a general verdict is appropriate in Texas
criminal cases such as this one.
The state habeas court found that, under state law, “unanimity means that each and every
juror agrees that the defendant committed the same single specific criminal act.” 6 SHCR at 2632.
The state court also found that Halprin had been charged with “only one criminal act—the capital
murder of Aubrey Hawkins. The alternative paragraphs in the jury charge simply alleged different
theories for the commission of that one capital murder.” 6 SHCR at 2632. The state court also
found that the two theories set forth in the charge simply alleged different, nonexclusive theories for
the commission of that one capital murder and did not conflict with one another. Because the actus
reus was the single murder of Officer Hawkins, the jury did not have to agree on the statutory
aggravating element in order to return a general verdict of guilty. See 6 SHCR at 2629, 2632-33.
Memorandum Opinion and Order - Page 31
The state court also held that, under state law, “a jury charge that allows the jury to find a
defendant guilty based on either his own actions or the actions of another (liability as a party) does
not violate the law regarding jury unanimity.” 6 SHCR at 2633. And that while jury unanimity is
required on the “essential elements of the offense,” it is generally not required on “alternate modes
or means of commission,” and that “the Supreme Court has expressly rejected Applicant’s argument
that a jury must agree unanimously on the means by which a defendant committed a particular
crime.” 6 SHCR at 2634 (citing Schad v. Arizona, 501 U.S. 624, 633 (1991)).
The state court concluded that the jury charge was not erroneous and that the prosecutor’s
jury argument in accordance with that charge was proper. See 6 SHCR at 2634. Accordingly, the
state court determined that trial counsel was not ineffective for failing to lodge a meritless objection
to the State’s proper jury argument, and that Halprin failed to prove that the result of the proceeding
would have been different if defense counsel had objected to the jury charge and the State’s
argument. See 6 SHCR at 2634.
Halprin has not shown the state court’s adjudication of his claim to be incorrect, much less
unreasonable. A prosecutor’s jury argument may properly state the law given to the jury in the
charge of the court. See Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007) (upholding
jury argument where “the prosecutor did not convey any information beyond what was properly
contained in the charge.”); Harris v. Stephens, No. A-14-CA-841-SS, 2015 WL 4911207, at *6
(W.D. Tex. Aug. 17, 2015) (holding that prosecutor’s attempt to state the law accurately for the jury
as it was described in the indictment was not improper). Therefore, if the charge was correct, an
argument based on it would not be objectionable.
Memorandum Opinion and Order - Page 32
The state court determined that Haprin’s jury charge did not permit a nonunanimous verdict,
but that Halprin was charged with and convicted of committing only one crime under state law—the
capital murder of Aubrey Hawkins—even though different theories were provided for the jury
regarding how that crime was committed. See 6 SCHR at 2632-34. The state court’s findings that
the jury instruction and prosecutor’s argument did not violate state law are generally binding on this
court. See Paredes, 574 F.3d at 291; Bradshaw v. Richey, 546 U.S. at 76. Halprin has not shown
that the law at the time actually required or even supported the objection, and the failure to raise a
meritless objection cannot support a claim of ineffective assistance of counsel. See Clark, 19 F.3d
The state court’s adjudication of Halprin’s claim has not been shown to be incorrect, much
less unreasonable under § 2254(d). Therefore, this part of Halprin’s eighth claim is denied.
Halprin complains that his trial counsel failed to object to the prosecutor’s statements during
the jury selection relating to the law of parties with accomplices and assessing the death penalty for
a non-triggerman who participated in a robbery while carrying a gun. See Am. Pet. Br. at 105-13.
Specifically, Halprin complains that throughout jury voir dire the prosecution continually suggested
that a death penalty would be appropriate for a non-triggerman who was armed and helped plan a
robbery. See Am. Pet. Br. at 105. Respondent argues that the state court reasonably rejected this
claim and Halprin is entitled to no relief. See Ans. at 73-74.
State Court Proceedings
In subpart C to the fifth claim in his state application for a writ of habeas corpus, Halprin
made the same complaint that trial counsel failed to object to the prosecutor’s statements during jury
Memorandum Opinion and Order - Page 33
selection that he makes before this court. See 2 SHCR at 780-87. The state habeas court found that
Halprin’s complaints lacked merit, that the asserted statements were either misinterpreted or
misrepresented, and that large portions were omitted or presented out of their proper context,
namely, the discussion of the law of parties.
(448) Applicant cites the Court to portions of the voir dire examination of eleven
of the twelve jurors. But the Court finds that Applicant either misinterprets
or misrepresents the prosecutor’s remarks.
(449) The Court finds that all of the cited remarks generally relate to the concept
of party conspiracy, but they do not all relate to a conspirator’s eligibility for
the death penalty. Some of the remarks relate only to the issue of a
conspirator’s guilt (i.e. should the defendant have anticipated someone would
die). Indeed the excerpts from the examination of jurors nine and twelve
relate entirely to the issue of guilt. See (RR9: 75-76, 87; RR 12: 22; RR22:
101; RR27: 126; RR30: 56; RR35: 194; RR38: 171). In this respect, the cited
remarks provide no support for Applicant’s contention.
(450) Furthermore, to the extent the prosecutor’s remarks did relate to a party
conspirator’s eligibility for the death penalty, the Court finds that Applicant
(451) The Court finds that in the excerpted remarks about the concept of “actual
anticipation,” the prosecutors were merely identifying examples of facts from
which a juror might infer that a defendant actually anticipated that someone
would die. These examples neither explicitly nor implicitly told the jurors
that the evidence a conspirator was armed and helped plan the robbery was,
by itself, sufficient to prove actual anticipation.
(452) In fact the Court finds that throughout their examinations of the jurors on the
matter, the prosecutors referred to several other factors from which the jurors
might infer anticipation, such as how many others were armed, how detailed
the plan was, how actively involved the defendant was in the robbery,
whether he was present during murder or down the street in a getaway
vehicle, whether he was prepared to use his weapon, and whether he
committed the offense with others who had a criminal history.
6 SHCR at 2635-36. The state court found that the prosecutor’s remarks were a proper explanation
of the law and trial counsel was not ineffective for not objecting to them. See 6 SHCR at 2636-37.
Memorandum Opinion and Order - Page 34
In his attempt to present the exhausted claim before this court, Halprin duplicates the errors
made before the state court. Despite the detailed explanation by the state court regarding how
Halprin had misconstrued and taken comments out of context in presenting this claim there, the same
errors appear in the claim presented to this court. Several of the quotes set forth in the Amended
Petition brief erroneously excluded large segments of the transcripts that explained and qualified the
quoted language. Some omitted language also revealed shifts in the prosecutor’s discussion from
a punishment issue to the law of parties at the guilt stage. Explanatory contexts for the quoted
language were also omitted and presented incorrectly before this court.
While this court understands the need to confine the claim to what was exhausted, Halprin
has made no attempt to explain or correct those errors. Therefore, he has not shown that the state
court’s adjudication was incorrect, much less unreasonable under § 2254(d). Accordingly, Halprin
has not shown an entitlement to relief on this claim.
In sum, the state habeas court found that both the jury charge and the State’s arguments were
proper under prevailing Texas law at the time of trial and, thus, counsel was not deficient for
choosing not to object to either. See 6 SHCR at 2630-31. Halprin has not shown that this finding
was incorrect or that the denial of his claim was unreasonable or in conflict with federal law.
Therefore, this part of Halprin’s eighth claim is also denied.
In the last part of Halprin’s eighth claim, he complains that trial counsel failed to request an
anti-parties charge in the punishment phase of his trial. Specifically, Halprin argues that trial counsel
should have requested an instruction that the jury “confine yourselves, in answering the [special
Memorandum Opinion and Order - Page 35
issues], to the conduct and acts of the defendant standing alone is appropriate (sic).” Am. Pet. Br.
at 114-15. Respondent argues that the state court’s rejection of this claim was reasonable. See Ans.
State Court Proceedings
At the punishment stage of Halprin’s trial, the jury charge included the following special
SPECIAL ISSUE NO. 2
Do you find from the evidence beyond a reasonable doubt that the defendant,
RANDY ETHAN HALPRIN, actually caused the death of the deceased, Aubrey
Hawkins, or did not actually cause the death of the deceased but intended to kill the
deceased or another or anticipated that a human life would be taken?
Vol. 1, CR at 43. The verdict of “yes” was signed by the foreman of the jury. See 1 CR at 43.
Halprin presented this in part H of the fifth claim in his state application for writ of habeas
corpus. See 2 SHCR at 806-08. The state court found that Halprin failed to prove either prong of
the Strickland test, that is, that counsel was deficient for not requesting the complained-of instruction
or that the failure to make the request prejudiced Halprin’s defense. See 6 SHCR at 2654. The state
court determined that trial “counsel reasonably concluded that such a request was unnecessary.” 6
SHCR at 2655 (citing 2 SHRR at 244). The state court further found that a proper “anti-parties”
instruction was given in accordance with state law.
(586) The Court finds that while trial counsel did not request an instruction such as
the one Applicant now proposes, the Court did instruct the jury as mandated
by article 37.071, section 2(b)(2) of the code of criminal procedure.
(587) The Court of Criminal Appeals has held that the instruction mandated by
section 2(b)(2) requires the jury to focus exclusively on the defendant’s
conduct and, thus, essentially is an “anti-parties” charge. See Ladd v. State,
3 S.W.3d 547, 570 (Tex. Crim. App. 1999) (citing McFarland v. State, 928
Memorandum Opinion and Order - Page 36
S.W.2d 482, 516-17 (Tex. Crim. App. 1996) (both holding second special
issue is an “anti-parties” instruction); see also Wood v. State, 18 S.W.3d 642,
649 (Tex. Crim. App. 2000) (describing second special issue as an
“anti-parties” issue and holding that it is constitutional because it specifically
instructs the jury to consider the defendant’s behavior alone).
(588) The Fifth Circuit Court of Appeals has held the same. See Ramirez v. Dretke,
398 F.3d 691, 696-97 (5th Cir. 2005) (holding that trial court’s general
punishment instruction to “consider all evidence submitted . . . in whole trial”
did not permit jury to impose death on Ramirez based on other party’s
conduct because second special-issue instruction explicitly limited jury’s
consideration to Ramirez’s individual liability).
(589) Because the Court’s instruction already contained an anti-parties charge, the
Court finds that trial counsel was not deficient and could not have prejudiced
Applicant’s defense by not requesting one. See Ladd, 3 S.W.3d at 570
(rejecting ineffectiveness claim based on decision not to request “anti-parties”
charge in second special issue instructions).
6 SHCR at 2655. The state court concluded that trial counsel was not ineffective for not requesting
another anti-parties instruction. See 6 SHCR at 2655.
Respondent relies upon Ramirez v. Dretke, 398 F.3d 691, 697 (5th Cir. 2005), in which the
court rejected a claim that jury instructions similar to those in Halprin’s trial violated Enmund v.
Florida, 458 U.S. 782 (1982). The court found that the instructions included “the requirement of
a jury finding of individual liability during the punishment phase,” and reasonably indicated that the
law of parties was not applicable during that phase. Therefore, another instruction as proposed by
Halprin would not have been required or needed. The state court findings that trial counsel were not
ineffective for not requesting such additional instruction are reasonable and supported by the record.
Accordingly, Halprin has not overcome the presumption in § 2254(d) and is not entitled to relief on
this claim. This part of the eighth claim for relief is also denied.
Memorandum Opinion and Order - Page 37
For the reasons previously stated, Halprin’s entire eighth claim is denied.
In Halprin’s ninth claim, he complains that his counsel on direct appeal failed to present a
complaint on direct appeal concerning the trial court’s refusal to permit the introduction of certain
mitigating evidence through his mitigation expert, Dr. Kelly Goodness. See Am. Pet. Br. at 117-23.
Specifically, Halprin alleges that “[t]he trial court permitted Dr. Goodness to testify to her ultimate
opinions, but did not let her discuss the information that formed the basis of the opinions . . . .” Am.
Pet. Br. at 120 (citing Goodness Psych. Eval. at 17). “Absent knowledge of the data underlying Dr.
Goodness’s conclusions, the jurors were left without a way to judge her credibility any (sic) means
in which they could weigh her conclusions.” Am. Pet. Br. at 123. Respondent argues that the
excluded material was inadmissible hearsay and that the state court reasonably concluded that
“[a]ppellate counsel cannot be deemed ineffective for failing to raise a claim that has no merit.” Ans.
at 78 (quoting 6 SHCR at 2687).
State Court Proceedings
During the trial, the court conducted a hearing outside of the presence of the jury under Rule
705 of the Texas Rules of Evidence regarding the testimony of Dr. Goodness. See 52 RR at 89-143;
53 RR at 3-12. The State objected not to the expert’s opinions but to the hearsay information that
formed the basis for those opinions. See 52 RR at 140-41; 53 RR at 3-5. The trial court ruled that
the expert could testify regarding her opinions from otherwise inadmissible information, and could
identify the underlying data as the source of her opinions, but could not go into the details of such
inadmissible hearsay information before the jury. See 53 RR at 5-7, 9-10. The court also explored
Memorandum Opinion and Order - Page 38
with counsel the type of limiting instruction that would be issued if it were to allow any of the
underlying inadmissible information under that rule. See 53 RR at 10-12.
Halprin presented this claim in the postconviction habeas corpus proceedings, and the state
court found that the Eighth Amendment required that Halprin be afforded the opportunity to present
mitigating evidence, but it did not “relieve him of the obligation of presenting it in an admissible
form.” 6 SHCR at 2687. The state court also found that:
(461) Dr. Goodness, a clinical and forensic psychologist, personally evaluated
Applicant, reviewed a plethora of documents and interviewed some of
Applicant’s relatives and friends. (Applicant’s Ex. D.) Based on this data,
Dr. Goodness formulated an opinion on “how [Applicant] has come to be
before the Court today.” (RR53: 19.) The Court allowed Dr. Goodness to
testify to that opinion but limited her testimony about the data underlying it.
In particular, under evidence rule 705(d), which governs the admission of the
facts or data underlying an expert’s opinion, the Court prohibited Dr.
Goodness from testifying to any inadmissible hearsay communications upon
which her opinion was based. (RR53 3-12.)
6 SHCR at 2638.
(466) The Court finds that Applicant was not precluded from offering testimony
about abuse and neglect he suffered as a young child while in the care of his
biological parents, his placement in foster care, his psychological problems,
his learning disabilities, and child-rearing mistakes made by his adoptive
parents. He was simply prohibited from offering it in the form of
(467) Applicant does not dispute that the “data” about which the doctor planned to
testify constituted inadmissible hearsay. The record reflects and Applicant
acknowledeges that Dr. Goodness would have testified to the substance of
out-of-court oral and written communications, including statements made to
the doctor by Applicant, his friends, and his family members, and statements
contained in CPS records, academic records, adoption records, criminal
records, and letters authored by Applicant.
(468) Moreover, the Court finds that the doctor planned to offer these statements
for the truth of the matters they asserted, i.e., that Applicant was abused, had
psychological problems, etc. TEX. R. EVID. 801(d) (defining hearsay).
Memorandum Opinion and Order - Page 39
(469) The Court finds that these communications constituted hearsay for which
Applicant identifies no exception. TEX. R. EVID. 802 (general rule that
hearsay is inadmissible absent an exception). Thus they were excludable
under evidence rule 705(d) if the danger that they would be used for a
purpose other than as explanation or support for Dr. Goodness’s opinion
outweighed their value as explanation or support or they were unfairly
prejudicial. TEX. R. EVID. 705(d).
6 SHCR at 2639.
(476) The Court also found that Applicant did not have a strong need to present any
hearsay evidence to the jury.
(477) As the doctor’s trial testimony shows, she was allowed to testify with
particularity that she formed her opinion in large part on information relayed
to her by certain friends, family members, records, and letters. In particular,
Dr. Goodness testified before the jury that her opinion was based on: (1) her
conversations with Jason and Terri Goldberg (childhood family friends),
Rabbi Stern (his childhood rabbi), Rhonda Halprin (his aunt), Mindi, Steven,
and Shelly Sternblitz (childhood family friends), Anna Lester (Applicant’s
biological mother), Wesley Halprin (Applicant’s biological brother), and
Applicant, and (2) her review of three boxes of documents [that] included
adoption records, CPS records, school records, a childhood psychological
evaluation of Applicant, criminal records, and letters authored by Applicant.
(RR53: 22-23, 29-31, 35, 37-40, 42-46.)
(478) Thus, the Court finds that even without the excluded hearsay evidence, Dr.
Goodness was able to demonstrate a basis for her opinion about Applicant.
(479) Because the probative value of any hearsay was negligible while the risk that
it would be improperly used as substantive evidence was substantial, the
Court acted within its discretion in excluding otherwise inadmissible hearsay
through Dr. Goodness.
6 SHCR at 2640.
(816) Moreover, as this Court found on Applicant’s related claim attacking trial
counsel’s performance, Applicant was not precluded from offering evidence
of his abuse, psychological problems, etc. He was simply prohibited from
offering it in the form of inadmissible hearsay through the doctor.
Memorandum Opinion and Order - Page 40
(817) Appellate counsel cannot be deemed ineffective for failing to raise a claim
that has no merit.
6 SHCR at 2687.
In reviewing a claim alleging ineffective assistance of appellate counsel, the federal court
applies the same Strickland standard. See Blanton v. Quarterman, 543 F.3d 230, 243 (5th Cir.
2008). While counsel need not raise every nonfrivolous ground available on appeal, “a reasonable
attorney has an obligation to research relevant facts and law, or make an informed decision that
certain avenues will not prove fruitful . . . . Solid, meritorious arguments based on directly
controlling precedent should be discovered and brought to the court’s attention.” Amador v.
Quarterman, 458 F.3d 397, 410-11 (5th Cir. 2006) (quoting United States v. Williamson, 183 F.3d
458, 462-63 (5th Cir. 1999)). In addition to showing deficient performance on appeal, a habeas
petitioner must show prejudice in that the outcome of the appeal would have been different. Id. at
411. Just as with ineffective assistance of trial counsel claims that are denied by the state court,
ineffective assistance of appellate counsel claims adjudicated by the state court are entitled to double
deference. See Beatty, 759 F.3d at 463; Pinholster, 563 U.S. at 171-72.
In this case, the state court found that, as a matter of state law, the underlying information
was inadmissible hearsay and that an appellate complaint regarding it would have had no merit.
Accordingly, Halprin’s appellate counsel could not have been ineffective in failing to present a
meritless claim on appeal. Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994). This conclusion
has not been shown to be incorrect, much less unreasonable. Accordingly, Halprin’s ninth claim is
Memorandum Opinion and Order - Page 41
“In cases where an applicant for federal habeas relief is not barred from obtaining an
evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the
discretion of the district court.” Schriro v. Landrigan, 550 U.S. 465, 468 (2007). Prior to the
AEDPA, “[w]hen there is a factual dispute, [that,] if resolved in the petitioner’s favor, would entitle
[him] to relief and the state has not afforded the petitioner a full and fair evidentiary hearing, a
federal habeas corpus petitioner is entitled to discovery and an evidentiary hearing.” Goodwin v.
Johnson, 132 F.3d 162, 178 (5th Cir. 1997) abrogated on other grounds by Smith v. Robbins, 528
U.S. 259 (2000). In Schriro, the Supreme Court observed that while the basic rule has not changed,
the standards for granting relief have:
In deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.
Because the deferential standards prescribed by § 2254 control whether to grant
habeas relief, a federal court must take into account those standards in deciding
whether an evidentiary hearing is appropriate.
Schriro, 550 U.S. at 474 (footnote omitted) (internal citations omitted). Regarding any claim
adjudicated on the merits, the proper standard is set forth in 28 U.S.C. § 2254(d). Federal habeas
review under § 2254(d)(1) is, “limited to the record that was before the state court,” Pinholster, 563
U.S. at 180-81, and review under § 2254 (d)(2) is limited to the “determination of the facts in light
of the evidence presented in the State court proceeding.”
On the allegations and record before this court, an evidentiary hearing would not enable
Halprin to establish a right to federal habeas relief. Even if facts were further developed in federal
Memorandum Opinion and Order - Page 42
court on any of the claims presented, they would not establish a right to federal habeas relief under
the AEDPA. Accordingly, Halprin’s request for an evidentiary hearing is denied.
For the reasons herein set forth, Halprin’s fourth claim is dismissed as procedurally barred;
alternatively, it is denied for lack of merit. Halprin’s remaining claims are all denied for lack of
merit. Halprin’s request for an evidentiary hearing is denied. Habeas corpus relief 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 determines that Halprin 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). If Halprin files a notice of appeal,
he may proceed in forma pauperis on appeal.
It is so ordered this 27th day of September, 2017.
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - Page 43
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