Edwards v. Davis-Director TDCJ-CID

Filing 1

Memorandum Opinion and Order: Edwards' motion for relief under Rule 60(b) is a successive application for habeas relief and is TRANSFERRED to the United States Court of Appeals for the Fifth Circuit The Clerk of Court is DIRECTED to open for s tatistical purposes a new civil action (nature of suit 535 - death penalty habeas corpus-assigned to the same district judge) and to close the same on the basis of this Order. The Court DENIES a certificate of appealability. [Originally filed as document 97 in civil case 3:10-cv-0006-M] (Ordered by Chief Judge Barbara M.G. Lynn on 1/26/2017) (axm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TERRY D. EDWARDS, SR.

§
§
Petitioner,
§
§
v.
§
§
WILLIAM STEPHENS, Director, Texas §
Department
Of
Criminal
Justice, §
Correctional Institutions Division,
§
§
Respondent.
§
§

Case No. 3:10-CV-6-M
DEATH PENALTY CASE
EXECUTION SCHEDULED:
JANUARY 26, 2017

PETITIONER’S SECOND RULE 60(B) MOTION TO REOPEN JUDGMENT
AND INCORPORATED MEMORANDUM OF LAW PURSUANT TO JANUARY 13,
2017 CERTIORARI GRANT IN DAVILA V. DAVIS, 16-6219 (U.S.)
I.

STATEMENT OF THE CASE
Texas is scheduled to execute Mr. Terry D. Edwards today, January 26, 2017, at 6:00

p.m. This Court is aware of the grave constitutional infirmities in this Dallas County judgment,
its direct appeal, its state habeas corpus proceedings, and, of course the profound problems in
these federal habeas proceedings due to the misconduct of the appointed counsel, Mr. Richard
Wardroup. Petitioner explicitly incorporates the pleadings in his January 10, 2017, Rule 60(b)
motion (Doc. 83) and the accompanying appendix (as referenced herein), which the Court denied
while granting a certificate of appealability on “whether the abandonment by counsel could be
the sort of defect in the integrity of the federal habeas proceedings that could warrant Rule 60(b)
relief.” (Doc. 91 at 9).
Yesterday, the Fifth Circuit, denied this Rule 60(b) motion, In re Edwards v. Davis, No.
17-10066 (1/25/2017) at 16, and denied the related stay application, id. at 17. The Fifth Circuit’s

opinion is devoted mainly to many elements surrounding the discrete issue for which this Court
granted its COA. Mr. Edwards is currently seeking certiorari review from that decision.
During the pendency of the first Rule 60(b) motion in this Court, the Supreme Court
granted certiorari review in Davila v. Davis, No. 16-6219 (U.S.), from the Fifth Circuit’s denial
of a certificate of appealability. No. 15-70013, 2016 WL 3171870 (5th Cir. May 26, 2016). The
Supreme Court granted review on one of the two questions presented, specifically, whether “the
rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct.
1911 (2013), that ineffective state habeas counsel can be seen as cause to overcome the
procedural default of . . . substantial ineffective assistance of appellate counsel claims.”
This Court is aware of the gross inadequacy of Mr. Edwards’s state habeas counsel, C.
Wayne Huff, and also of the ineffectiveness on direct appeal of Mr. Douglas Parks, the appellate
counsel.

On November 11, 2003, Mr. Douglas Parks was appointed to represent Mr. Edwards.
Mr. Edwards never met or spoke with Mr. Parks. On June 14, 2004, counsel filed a motion
for a five-month extension of time. The court granted the motion, imposing a new deadline
of November 30, 2004, and ordering that “NO FURTHER EXTENSIONS WILL BE
ENTERTAINED. Failure to file appellant’s brief may result in the issuance of a show cause
order and/or judgment of contempt.”(App. 671), Clerk’s Order. That date came and went,
without any filing on Mr. Edwards’s behalf. On December 16, the CCA mailed Mr. Parks a
postcard notifying him of the failure. (App. 672). In response, on December 22, 2004, Mr.
Parks hastily prepared and filed his brief via mail, along with an extension motion requesting
“until December 30, 2004, or the date this Court receives this brief, whichever is earlier.”
The brief was docketed on the following day. The State responded on June 28, 2005. The

2

CCA initially scheduled the case for oral argument on September 28, 2005. On August 18,
2005, Mr. Parks wrote the CCA informing them that, in this capital case, “Appellant does not
desire oral argument and submits the cause on the briefs.” (App. 673). The State, one week
later, replied, “Based on this Court’s informing me that Appellant has waived oral argument,
the State will also waive oral argument.” (App. 674). Thus, the case was submitted and, on
March 1, 2006, the CCA denied relief.
After woeful state habeas proceedings, on January 11, 2010, the Court granted the
January 4, 2010 motion to appoint Mr. Richard Wardroup in Mr. Edwards’s proceedings
pursuant to 18 U.S.C. §3599. (Doc. 2).1 Mr. Wardroup timely filed Mr. Edwards’s habeas corpus
petition on December 10, 2010 (Doc. 6),2 which the Court ultimately denied on August 6, 2014
(Docs. 22, 23). The Court denied each of the petition’s “six grounds,” all of which sought “relief
pertaining to jury selection issues” based on the record. (Doc. 22 at 2). The sixth and final jury
selection claim concerned appellate counsel ineffectiveness. (Doc. 22 at 18-20).
In ruling on this sixth claim, the Court recognized that “respondent contends that these
claims are unexhausted and now procedurally barred.” (Id. at 13). Further, the Court pointed out
that “Edwards acknowledges that he did not present these claims to the state court.” (Id., citing
Doc. 6 at 47). The Court further noted that “Edwards moved to stay and abate these proceedings
in order to exhaust these claims.” (See doc. 9). He did not object to the recommendation that his

1

Mr. Wardroup was Petitioner’s only counsel of record in the federal courts until the Fifth Circuit replaced
him on June 25, 2015 with the substitution of Mr. Donald Vernay (infra).
2
Mr. Wardroup simultaneously filed on December 15, 2010 a motion to stay proceedings pursuant to
Rhines v. Weber, 544 U.S. 269 (2005), in order to return to state court to exhaust unspecified “unexhausted” and
“potentially meritorious” claims. (Doc. 9 at 2). Several months earlier, Messrs. Vernay and Wardoup, acting for Mr.
Braziel in his capital petition before this Court, had filed this same generic motion. Braziel v. Stephens, No. 3:09-cv1591-M, Doc. 17, (N.D. Tex. Aug. 17, 2010). In Braziel, the Court later characterized the motion as submitted “to
abate [Braziel’s] proceedings to exhaust a claim of ineffective assistance of trial counsel because that claim was
procedurally barred due to the ineffective assistance of state habeas counsel in failing to raise the claim earlier.”
(Doc. 27, Feb. 28, 2011). Then, during the pendency of Trevino v. Thaler in the Supreme Court, this Court sua
sponte stayed the Braziel proceedings. (Doc. 30, discussed infra).

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motion be denied for failure to show good cause or potential merit (see Doc. 12), and the
recommendation was accepted (see doc. 15).” (Id. at 13 n.8).
As set forth in the first Rule 60(b) Motion (Doc. 83 at 23-25), Mr. Wardroup abandoned
the case for his new fulltime employment in March 2011. Five months later, on August 15, 2011,
the magistrate judge entered the recommendation to deny the Rhines v. Weber motion to stay and
abey these proceedings. Thus, at that critical point, Mr. Wardroup had already fully disengaged
from his representation of Mr. Edwards and did not object to the magistrate’s recommendation.
On September 12, 2011, the Court accepted the recommendations. (Doc. 15)
As noted previously, Mr. Wardroup filed only an eight-page response to Respondent’s
answer on March 9, 2012 (Doc. 21), and, upon the Court’s judgment on August 6, 2014 (Doc.
22), a notice of appeal (Doc. 24). The Court dismissed the sixth claim in Mr. Edwards’s timely
petition as procedurally barred. (Doc. 22 at 14). Further, the Court went on to consider the claim
and denied it on the merits. (Id. at 20).
This sixth habeas claim posited that “[t]he failure of Edwards’ counsel on direct appeal to
raise any claims regarding the improper denial of Edwards’ challenges for cause of [jurors] Sims
and Hernandez constituted ineffective assistance.” (Doc. 91 at 2).
II.

ARGUMENT
In light of the Supreme Court’s grant of certiorari review in Davila (supra), this Court

should stay Mr. Edwards’s execution pursuant to his application herein and hold this case in
abeyance pending the merits determination in Davila. The defect in these proceedings caused by
Mr. Wardroup’s profound misconduct warrants reopening of this case, whereupon counsel would
provide further grounds to amend the appellate counsel ineffectiveness claim concerning the jury

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selection process. As set forth at considerable length (see Doc. 83 at 10-12), this jury selection
process was beset with deeply disturbing constitutional infirmities.
From an initial pool of approximately 3,000 county residents, the parties individually
questioned 143 venire members in order to select Mr. Edwards’s jury that, in the end, initially
seated only white people. (An alternate of Hispanic ethnicity later replaced one of the initially
seated jurors). Mr. Edwards’s jury was empaneled months after the first Supreme Court opinion
addressing the Dallas County DA’s racially discriminatory practices in the case of Mr. Thomas
Miller-El. Miller-El v. Cockrell, 537 U.S. 322 (2003).3 In Miller-El’s Dallas County trial in
1986, the District Attorney’s Office used peremptory strikes to eliminate 10 out of the 11 Black
venire members individually questioned. Months after that trial, the Dallas Morning News
published its first investigative journalism on that office’s institutionalized practices in capital
jury selection.4
As displayed in the Miller-El litigation, the DA’s Office under Bill Hill and his
predecessors had an entrenched practice of striking prospective African-American jurors that
manifested a consistent pattern encompassing the period of the trial at bar.5
The trial record at bar (consisting of 47 transcript volumes), reflects the District
Attorney’s use of its practice of trading strikes by mutual agreement based upon juror
questionnaires. In Petitioner’s case, this dictated the removal, off the record and without
individual questioning from either party, and almost never from the defense, of swaths of the
3

See also Miller-El v Dretke, 545 U.S. 231 (2005), decided shortly after Mr. Edwards’s case.
The Dallas Morning News extensively chronicled this era, publishing two separate series of stories, one in
1986 and another in 2005, on the actual practices in that office. See, e.g., Steve McGonigle & Ed Timms, A Pattern
of Exclusion: Blacks Rejected from Juries in Capital Cases, Dallas Morning News, Dec. 21, 1986 (1986 WLNR
1716765).
5
See Steve McGonigle et al., A Process of Juror Elimination: Dallas Prosecutors Say They Don’t
Discriminate, But Analysis Shows They Are More Likely to Reject Black Jurors, Dallas Morning News, Aug. 21-23
(2005). WLNR 24660181; 2005 WLNR 24659981; 2005 WLNR 24658951; 2005 WLNR 24659140; 2005 WLNR
24658669; 2005 WLNR 24659060; 2005 WLNR 24657978; 2005 WLNR 24658335; 2005 WLNR 24657350; 2005
WLNR 24657134; 2005 WLNR 24657758; 2005 WLNR 24657224; 2005 WLNR 24658546).
4

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venire. This trading practice is known to have “impacted prospective black jurors far more than
others, and kept many of those jurors from ever graduating to individual voir dire.” (App. 618).
As reflected in Mr. Edwards’s case, the agreement method “stripped” away “the general
demographic representativeness of” Dallas County and enabled the empanelment of a White jury
without, apparently, the use of a single peremptory strike exercised against a Black venire
member.6 Yet appellate counsel Mr. Parks failed to address any of these matters derived from the
record – or the record’s inadequacy – on direct appeal.
Current counsel for Petitioner have also obtained a strike list apparently maintained by
ADA D’Amore (and/or ADA Tokoly) that includes, next to 32 of the venire members, a
handwritten, encircled “B.”7 (App. 623). Especially in light of the troubled history of this District
Attorney’s Office,8 there is obvious reason for “concern[] that these markings strongly suggest
racial indications.” (App. 622). These present deeply concerning markers of potentially odious
prosecutorial misconduct and constitutional violations and, further, strongly reflects the profound
consequences of defense counsel’s appeasement of the State’s trading practice to strip away
diversity and representativeness from Mr. Edwards’s jury.
Upon reopening these habeas proceedings, Mr. Edwards would readily relate jury
selection claims back to the sixth claim in his original, timely filed petition (Doc. 6), and would
stand to overcome the procedural bar this Court has recognized in the event of a favorable
6

The ostensible basis for this comprehensive striking by agreement of the entire Black venire, apart from
the two African-American prospective jurors struck for cause, would have been the individual member’s answers to
the questionnaire form. However, the DA has provided Petitioner’s current counsel with copies of what that office
has represented is the entirety of the questionnaires in its possession. These copies number only 35 of the 143
questioned venire members. Among those 35 is a single questionnaire completed by an African-American. It lacks
any material that would supply a creditable basis for a cause strike of the given venire member, Mrs. Warrick, yet
the DA and defense agreed – off the record – to strike her, just as the State and defense had done with every other
Black venire member.
7
This marking system may reflect race-based jury selection tactics historically used in the and also
encountered elsewhere. See ,e.g., Foster v. Chatman, 136 S.Ct. 290 (2016).
8
In Miller-El v. Cockrell, 537 U.S. 322, 347 (2003), published a mere months before Mr. Edwards’s trial,
the Supreme Court noted that the fact that Dallas County ADA’s marked race on the prospective juror’s cards
“reinforced” the supposition of racial discrimination established in the record in that case.

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determination of the question presented in Davila, viz., whether the Martinez/Trevino rule
providing cause to overcome a procedural default from ineffective state habeas counsel extends
to claims of ineffective assistance of appellate counsel.
Under Fed. R. Civ. P. 15(c)(1)(B), amendment to a pleading relates back to an original
pleading when it “arose out of the conduct, transaction, or occurrence set out—or attempted to be
set out—in the original pleading.” Rule 15 applies to habeas petitions and amended claims may
relate back to a timely claim if they are similar “in both time and type from those the original
pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005), quoted in United States v.
Gonzalez, 592 F.3d 675, 680 (5th Cir. 2009) (finding proposed claim of ineffective assistance of
trial counsel based on failure to file an appeal did not relate back to claims of trial counsel
ineffectiveness claims “during pretrial proceedings and at the sentencing stage”). Here, there is
the necessary “common core of operative facts” to permit relation back. Schirle v. Sokudo USA,
L.L.C., 484 893, 901 (5th Cir. 2012), quoting Felix, 545 U.S. at 659.
Upon reopening, Mr. Edwards would be poised to amend the sixth claim of his timely but
procedurally barred appellate counsel ineffectiveness claim concerning the jury selection.
III.

CONCLUSION
For the foregoing reasons, Mr. Edwards respectfully requests that this Court grant his

Motion and reopen his judgment or, alternatively, stay these proceedings and hold them in
abeyance pending the Supreme Court’s determination in Davila v. Davis, 16-6219. The Court
should also grant a stay of execution for the reasons set forth in Petitioner’s application and
amended application filed on January 13 and 17, 2017. (Docs. 87 and 88).
Respectfully Submitted,
/s/ Joseph J. Perkovich
JOSEPH PERKOVICH

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NY Bar Reg. 4481776
Phillips Black Project
[phone] (Tel.)
[e-mail]
PO Box 2171
New York, NY 10008
/s/ Jennifer A. Merrigan
JENNIFER MERRIGAN
MO Bar No. 56733
Phillips Black Project
[phone] (Tel.)
[e-mail]
PO Box 63928
Philadelphia, PA 19147
CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of January 2017, the foregoing pleading was served
upon all counsel of record in this case via the ECF filing system, pursuant to the Federal Rules of
Civil Procedure.
/s/ Joseph J. Perkovich

CERTIFICATE OF CONFERENCE
I hereby certify that above-signed counsel (Ms. Merrigan) has conferred with opposing
counsel, Ellen Stewart-Klein, via email, on January 26, 2017. Ms. Klein has been informed of
the details of this filing. She represented that her office does oppose this motion.
/s/ Joseph J. Perkovich

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