Bigby v. Quarterman

Filing 17

MEMORANDUM OPINION AND ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS: Certificate of Appealability Denied. In the event Bigby files a notice of appeal, the Court notes that he may proceed in forma pauperis on appeal. See 18 U.S.C. § 3006A(d)(7). The Court DENIES the application for habeas relief. (Ordered by Judge Terry R Means on 4/5/2013) (cxb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JAMES EUGENE BIGBY,
Petitioner,
V.
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:08-CV-765-Y
(death-penalty case)

MEMORANDUM OPINION AND ORDER
DENYING APPLICATION FOR WRIT OF HABEAS CORPUS
Petitioner James Eugene Bigby, sentenced to death for capital
murder, petitions the Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, contending that his death sentence is unconstitutional in several respects.
brief in response.

Respondent Rick Thaler has filed a

The Court denies relief.
I.

History of the Case

In late 1987, Bigby killed three friends (plus the infant son of
one of them) because he believed they were conspiring with Frito-Lay
to avoid paying him a workers' compensation claim. In 1991, Bigby was
convicted of capital murder and sentenced to death.

State v. Bigby,

No. 0329813D (Tarrant Co. Crim. Dist. Ct. No. 3, Mar. 25, 1991)
(Leonard, J.); (4 CR 396).1

The conviction and sentence were affirmed

on appeal and state habeas relief was denied.

1

Bigby v. State, 892

The trial court clerk’s record consists of 8 volumes and is cited
“CR,” preceded by the volume number and followed by the page number. The
40-volume reporter’s record is cited “RR,” and the 4-volume state habeas
record is cited “SHR.” Trial exhibits are cited as SX and DX for the
state and defense, respectively.

S.W.2d 864 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162 (1995);
Ex parte Bigby, No. 34,970-01 (Tex. Crim. App. Feb. 4, 1998) (orig.
proceeding). The United States Court of Appeals for the Fifth Circuit
later vacated Bigby’s death sentence due to jury-charge error under
Penry v. Johnson, 532 U.S. 782 (2001) (“Penry II”).

See Bigby v.

Dretke, 402 F.3d 551, 572 (5th Cir.), cert. denied, 546 U.S. 900
(2005).
In 2006, a new sentencing trial was held, and Bigby was again
sentenced to death.

State v. Bigby, No. 0329813D (Tarrant Co. Crim.

Dist. Ct. No. 3, Sept. 21, 2006) (Berry, J.); (7 CR 881).

The

sentence was affirmed on direct appeal and state habeas relief was
denied.

Bigby v. State, No. AP-75,589, 2008 WL 4531979 (Tex. Crim.

App. Oct. 8, 2008), cert. denied, 129 S. Ct. 1984 (2009); Ex parte
Bigby, No. WR-34,970-02, 2008 WL 5245356 (Tex. Crim. App. Dec. 17,
2008) (orig. proceeding).
Bigby filed his federal petition for habeas relief on April 14,
2010 (doc. 8, 9) and presents the following claims:
1.

Counsel rendered ineffective assistance by failing to
adequately investigate mitigation evidence.

2.

Counsel rendered ineffective assistance by failing to
adequately present mitigation evidence.

3.

Counsel rendered ineffective assistance in failing to
conduct meaningful voir dire examination on the
mitigation issue (subclaims A through L).

4.

The Texas death-penalty procedure violates due process
by placing the burden of proving the mitigation
special issue on the defendant and because the
indictment did not give notice of the facts the State
intended to prove in order to establish eligibility
for the death penalty.

2

5.

The evidence is insufficient to support the jury’s
answer to the future-dangerousness special issue.

6.

The Texas mitigation issue violates the Eighth
Amendment because it allows the jury too much
sentencing discretion and lacks minimal standards and
guidance necessary to prevent the arbitrary and
capricious imposition of the death penalty.

7.

The Texas mitigation issue violates the Eighth
Amendment because it sends mixed signals to the jury,
thereby rendering any verdict unreliable.

8.

The lethal injection protocol produces unnecessary
pain, torture, and lingering death in violation of the
Eighth Amendment.

Respondent filed an answer on September 10, 2010 (doc. 13) and
furnished the state-court records.

II.

AEDPA Standard of Review

Bigby initially asserts that the standard of federal habeas
review required by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) violates the separation-of-powers doctrine.

He

argues that 28 U.S.C. § 2254(d), which prohibits habeas relief except
for certain violations of Supreme Court precedent, constitutes a suspension of stare decisis as to circuit precedent and prohibits federal
courts from saying what the law is.

Bigby asks the Court to conduct

a de novo review for constitutional error in this case.

(Petition at

11-15.)
Bigby’s position is squarely against circuit precedent.

See

Rivas v. Thaler, 432 Fed. App’x 395, 407 (5th Cir.), cert. denied, 132
S. Ct. 850 (2011) (citing Dufrene v. Brazoria Cnty. Dist. Attorney,
146 Fed. App’x 715, 717 (5th Cir. 2005); Hughes v. Johnson, 191 F.3d

3

607, 612 (5th Cir. 1999); and Corwin v. Johnson, 150 F.3d 467, 472
(5th Cir. 1998)). Accordingly, the heightened standards of review set
out in the AEDPA govern this petition.
For claims adjudicated on the merits in state court, a federal
writ of habeas corpus will not be granted unless the state court
arrived at a conclusion that was contrary to federal law then clearly
established in the holdings of the United States Supreme Court,
involved an unreasonable application of such law, or was based on an
unreasonable determination of the facts in light of the record before
the state court.

See 28 U.S.C. § 2254(d)(1)-(2); Harrington v.

Richter, 131 S. Ct. 770, 785 (2011).

Section 2254(d) does not

authorize habeas relief, but bars relitigation in this Court of any
claim adjudicated on the merits in state court, unless an exception
in (d)(1) or (d)(2) applies.

See Cullen v. Pinholster, 131 S. Ct.

1388, 1399 (2011) (citing Schriro v. Landrigan, 550 U.S. 465 (2007)).
The phrase “adjudicated on the merits” is a term of art referring
to a state court’s disposition of a claim on substantive rather than
procedural grounds.
Cir. 1997).

See Green v. Johnson, 116 F.3d 1115, 1121 (5th

Evidence introduced in federal court has no bearing on

the determination made pursuant to § 2254(d).
Ct. at 1400; § 2254(d)(2).

See Pinholster, 131 S.

The standard in section 2254(d) is

difficult to meet, highly deferential, and demands that state-court
rulings be given the benefit of the doubt.

See Pinholster, 131 S. Ct.

at

at

1398

(quoting

Richter,

131

S.

Visciotti, 537 U.S. 19, 24 (2002)).

4

Ct.

786,

and

Woodford

v.

“[E]ven a strong case for relief

does not mean the state court’s contrary conclusion was unreasonable.”
Richter, 131 S. Ct. at 786.

III.

Trial Counsel’s Representation (claims 1 and 2)

Bigby’s first two claims for relief challenge trial counsel’s
investigation

and

presentation

of

mitigation

evidence.

presented these two habeas claims as one in state court.
63).

Bigby

(1 SHR 29-

The state habeas court concluded that counsel’s representation

was neither deficient nor prejudicial.

A.

(4 SHR 908-27).

Applicable Law

A challenge to trial counsel’s representation must demonstrate
that (1) counsel’s representation fell below an objective standard of
reasonableness

and

(2)

there

is

a

reasonable

probability

that

prejudice sufficient to undermine confidence in the trial outcome
resulted from the deficiency.

See Bower v. Quarterman, 497 F.3d 459,

466 (5th Cir. 2007)(citing Strickland v. Washington, 466 U.S. 668, 694
(1984)).

These standards are well known and will not be repeated.

See Bobby v. Van Hook, 130 S. Ct. 13, 16-17 (2009) (per curiam);
Pinholster, 131 S. Ct. at 1403; Wiggins v. Smith, 539 U.S. 510, 534
(2003); Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011), cert.
denied, 132 S. Ct. 1100 (2012); Druery v. Thaler, 647 F.3d 535, 539
(5th Cir. 2011), cert. denied, 132 S. Ct. 1550 (2012).

For purposes

of the following discussion, Bigby must demonstrate that it was
necessarily unreasonable for the Texas Court of Criminal Appeals to
conclude (1) that he did not overcome the strong presumption of

5

counsel’s competence and (2) that he failed to undermine confidence
in the jury’s sentence of death.

B.

See Pinholster, 131 S. Ct. at 1403.

Allegations Against Trial Counsel

Bigby’s petition reasserts the same arguments that the state
court rejected. He initially complains that counsel dismissed a mitigation specialist, Shelli Schade, and that Schade’s replacement, Dr.
Kelly Goodness, failed to conduct a mitigation and social-history
investigation
Guidelines.

in

accordance

with

accepted

practices

and

ABA

He maintains that Dr. Goodness merely reviewed records

from the first trial and that her dual role of mitigation specialist
and mental-health consultant violated ABA guidelines.

(Petition at

41-44, 69-73.)
Bigby asserts that the substandard investigation failed to
uncover psychiatric and/or institutional records of his brother, halfsister, and mother and overlooked critical information about his
upbringing.

For example, his younger brother Jerry was raised by

their father after the parents separated, and Jerry is a paranoid
schizophrenic currently living in their father’s former home, alone
and unemployed.

Bigby asserts that his older half-brother, Ronald,

could have provided information that their mother was an “alcoholic
whore” who drank while pregnant with Bigby and breastfed Bigby until
he was seven years old.

Ronald could have also shown that their

mother gave away Ronald and two half-siblings, Arthur and Trudy, to
be raised by relatives.

Counsel could have presented evidence that

all of Bigby’s siblings enjoyed little success in life due to their

6

mother’s alcohol use, her mental-health issues, and her abandonment
of them.

Although Bigby was not physically abandoned by his mother,

Bigby asserts that he was abandoned by his father and always feared
abandonment by his mother, who kept Bigby as her “helper” after her
leg was amputated.

For this reason, Bigby tolerated his mother’s

dependence and lack of responsibility.

(Petition at 45-51.)

Bigby submits that the jury did not get an accurate picture of
his life or consider the multiple risk factors in his upbringing that
caused him to commit capital murder.

(Petition at 46, 51-53.) He

contends that the lack of an accurate social history caused treatment
providers to overlook his substance-abuse problem and resulted in
varying, inaccurate mental-health diagnoses.

(Petition at 53-59.)

He maintains that, without his family’s medical records, counsel were
unable to show Bigby’s predisposition to mental illness.

(Petition

at 59-61.)
Bigby criticizes counsel’s overall presentation, which used the
same “dueling expert” mitigation strategy that was used unsuccessfully
in the first trial.

Bigby complains that his attorneys’ plan to have

him testify was aborted due to their inadequate preparation and poor
rapport.

He

additionally

maintains

that

counsel’s

ineffective

presentation lacked a new theme, contained minimal visual aids for the
jury, and lacked social-history testimony.

(Petition at 61.)

He

elaborates that counsel should have argued that he had a serious,
untreated substance-abuse problem and should have used a genogram to
explain the timing of the murders around Christmas. Bigby posits that

7

counsel:

should have developed the theme that many choices were made

for Bigby before he was capable of making choices for himself, should
have attempted to humanize Bigby with evidence of his childhood and
lack of accomplishments, and should have theorized that Bigby’s final
plan for a sense of accomplishment revolved around the idea of “going
out in a blaze of glory.”

Petition at 62-76, Ex. 2.

C.
1.

Background Facts

2006 Sentencing Trial

The following is an overview of the evidence adduced at the 2006
sentencing trial. Additional facts will be incorporated as needed into
the discussion that follows.
On the evening of December 23, 1987, Bigby went to the home of
his friend, Michael Trekell, and brought two steaks for dinner. While
Trekell was preparing the steaks, Bigby shot and killed him, and then
drowned Trekell’s sixteen-week-old son, Jayson Kehler.
(testimony

of

Trekell’s

common-law

wife

and

a

(23 RR 21-104
crime-scene

investigator); 26 RR 26-103 (Detective LeNoir’s testimony); 32 RR 6970 (Bigby’s statement to psychiatrist); SX 14, 15 (Bigby’s police
statements)).

Bigby then drove across town to the apartment of

another friend, Wesley Crane.

After visiting with Crane for a while,

Bigby asked Crane to drive him to the store in Crane’s truck.

During

the drive home, Bigby forced Crane to pull over and get out of the
truck at gunpoint.

He shot Crane in the head, killing him, and left

his body in the road.

Bigby returned to Crane’s apartment complex,

8

retrieved a bag from his car containing a pistol and a shotgun, and
drove away in Crane’s truck.

(23 RR 105-150 (testimony of Crane’s

girlfriend, Crane’s son, apartment security guard, and witness who
found body); 24 RR 118-216 (Detective Brennan); 32 RR 69-71; SX 14,
15).

About 3:20 a.m. on December 24th, Bigby arrived at the home of

his friend, Frank “Bubba” Johnson, and rang the doorbell.

Johnson

answered the door and, after a short discussion, Bigby shot him three
times with the shotgun, killing him.

He then fled in the truck.

(23

RR 151-176 (Johnson’s wife) 24 RR 9-42 (crime-scene investigator), 32
RR 69-71; SX 14, 15).
A massive manhunt ensued, and Bigby surrendered to police on
December 26, 1987, after a stand-off at a local motel.

During the

stand-off, a police negotiator told Bigby, “You’re an American.
You’re presumed innocent until proven guilty.

Everything is going to

be all right.” Bigby replied, “I’m guilty. I know it and so do you.”
Bigby later confessed to the murders in writing.

(24 RR 43- 64

(transporting police officer); 24 RR 65-94 (SWAT team negotiator); 26
RR 26-103 (Detective LeNoir); SX 14, 15).

A fingerprint found on a

wine cooler bottle at the Trekell home matched Bigby’s left middle
finger.

A firearms expert testified that a bullet fragment recovered

from the Trekell crime scene had been fired from a .357 revolver found
in Bigby’s motel room.

(23 RR 66-104 (crime-scene investigator at

Trekell home); 24 RR 217-44 (crime-scene investigator at hotel); 25
RR 5-25 (firearms expert).

9

The State next presented evidence that Bigby had been incarcerated for burglary in 1977 and for burglary of a motor vehicle in
1983.

The judge and several other persons connected to Bigby’s 1991

trial testified about Bigby’s attempt to kidnap the trial judge during
that first trial.

According to the testimony, Bigby had seized a

loaded revolver from the judge’s bench, walked into chambers, pointed
the gun at the judge’s head, and said, “Let’s go, Judge.”

The judge

immediately grabbed Bigby’s hand and, with the prosecutor’s assistance, wrestled Bigby to the ground.

Two bailiffs entered the

chambers and removed the revolver from Bigby’s hand.
26 RR 56-109).

(23 RR 94-96;

After this testimony, the State rested its case-in-

chief.
Defense counsel first presented photographic

evidence

Christmas present Bigby had purchased for Jayson Kehler.

of a

(23 RR 51;

27 RR 12-16 (testimony of crime-scene investigator); DX 24, 25).
Counsel then read the 1991 testimony of Bigby’s father, William Bigby,
who had passed away since the first trial.

(27 RR 16-58 (1991

testimony of William Bigby). Charles Noteboom and Lonnie Max Obeidin,
Bigby’s lawyers on the workers’ compensation matter, both testified
in person regarding their representation of Bigby and his paranoid,
strange, and threatening behavior. (27 RR 58-82, 82-101; see also SX
107 (investigator notes), SX 108 (Bigby’s deposition testimony)).
The defense presented extensive evidence of Bigby’s mental-health
treatment prior to the murders.

This included testimony from a

hospital employee who knew Bigby as a patient in 1987.

10

(27 RR 101-

13).

Bigby’s treating psychiatrist, Harold Eudaly, also testified.

The evidence showed that Bigby had a treating psychologist, Dr. John
Koechel, and that Bigby was medicated and hospitalized three times in
1986 and 1987 for schizo-affective disorder and depression.

Bigby

received electroshock therapy during his third hospital stay, which
ended when he walked out of the hospital against Dr. Eudaly’s advice
on December 11, 1987, twelve days before the murders. (27 RR 115-171;
DX 49, 50, 51).

Counsel presented the 1991 testimony of the jail’s

medical director to show that Bigby was prescribed antipsychotics and
antidepressants even after his arrest.

(27 RR 172-210).

The prior

testimony of defense experts, Clay Griffith and James Grigson, both
deceased, was also read to the jury. These experts had examined Bigby
in 1989 and 1990.

Dr. Griffith diagnosed him with schizo-affective

disorder and paranoid delusional disorder.
with chronic paranoid schizophrenia.

Dr. Grigson diagnosed him

(27 RR 211-246; 28 RR 5-79).

Defense counsel presented evidence that Bigby had experienced a
religious conversion since the first trial.

Live testimony was

presented through a Christian minister in Oklahoma who had received
“tithes” from Bigby, a prison minister who counseled Bigby on death
row, and a county corrections officer who described Bigby’s behavior
while awaiting trial in 2006.

(28 RR 80-90, 90-113, 118-27).

Larry Moore, Bigby’s original trial counsel, also testified in
person.

He described Bigby’s mental status, hallucinations, and

difficult behavior during the first trial.

Moore testified on cross-

examination that he had caused Bigby to be examined for competency by

11

psychologist Barry Norman after Bigby’s attempt to kidnap the trial
judge.

Moore also told the jury how Bigby later sought Moore’s

forgiveness for his behavior. (28 RR 128-153; 29 RR 11-37; SX 110 (Dr.
Norman’s report)).
A retired prison warden testified about Bigby’s favorable prison
record, which contained six or seven minor disciplinary infractions.
She also opined on Bigby’s prison classification in the event he
received a life sentence. (29 RR 55-166; DX 58, 59 (prison records)).
Finally,

counsel

“teaching expert.”

presented

psychiatrist

Lisa

Clayton

as

a

She did not evaluate Bigby, but summarized the

1991 testimony of Drs. Coons,2 Grigson, Griffith, and Eudaly, as well
as Bigby’s medical records and prison records.

She explained Bigby’s

varying diagnoses and where they fit into the spectrum of psychotic
disorders. She testified that Bigby’s behavior during both trials was
consistent with his psychosis.

(29 RR 186-274).

On rebuttal, the State presented evidence of Bigby’s extraneous,
unadjudicated offenses, including car theft, burglary, sale and use
of methamphetamine, identity theft, credit card fraud, check fraud,
other scams involving stolen rental property, and a sexual assault of
a five year-old girl when he was a teenager.

As an adult, Bigby

regularly recruited younger men to help him steal cars and engage in
other scams, several of whom testified for the State.
described Bigby as a full-time thief.

2

One witness

A man who had known Bigby all

Dr. Richard Coons was the State’s expert in 1991 and, as discussed
below, testified for the State on rebuttal in 2006. (29 RR 209).

12

of his life testified that Bigby’s workers’ compensation claim was
also fraudulent.

(30 RR 29-97, 132-175; 31 RR 6-35, 75-105).

There was testimony that people were concerned about getting on
Bigby’s bad side.

Bigby once asked a friend to buy him a gun so he

could kill his unfaithful girlfriend and a bunch of other people.

In

1986, Bigby had threatened to kill Frank “Bubba” Johnson and take half
the Fort Worth Police Department with him.

Bigby’s attitude was that

he would never to be taken alive and would never go back to prison.
(30 RR 54-56, 77-79, 137, 150, 158; 31 RR 6-24, 35).
Meredith Perry knew Bigby in the 1980s, and she testified, among
other things, that Bigby once removed the wing nuts on his mother’s
crutches, causing them to collapse.

Perry said Bigby also cashed his

mother’s disability check and stole Perry’s prescription pain medicine
to resell on the street.3

(31 RR 36-55).

Bigby’s ex-wife testified

that Bigby could pick locks and would enter her apartment when she was
not home.

She moved to a women’s shelter after Bigby had attacked her

multiple times.

During their separation, Bigby broke into her

apartment and drilled holes in her bathroom ceiling so he could spy
on her from the attic.

(31 RR 113-23).

Another female acquaintance

testified that Bigby would break into her apartment as well, and when
she confronted Bigby, he grabbed her by the throat, shoved her, and
told her he comes and goes as he pleases.

3

(31 RR 103-13).

Bigby changed clothes after Perry’s testimony and insisted on
leaving the courtroom because she lied. (31 RR 56-75). After a lengthy
discussion, the judge allowed Bigby to watch the trial on a video monitor
and instructed the jury that Bigby had voluntarily chosen not to be
present. (31 RR 71, 75).

13

The State presented live testimony from its expert at the first
trial, Richard Coons.

Dr. Coons evaluated Bigby for competency and

sanity in 1989 and relied on the records of this evaluation for his
testimony.

He diagnosed Bigby in 1989 with either methamphetamine-

induced psychotic delusions or delusional disorder, persecutory type.
His diagnosis in 2006 changed minimally.

He believed Bigby had

paranoid features to his personality that were exacerbated by heavy
methamphetamine use.

He also believed Bigby also had antisocial

personality traits.

According to Dr. Coons, Bigby developed the

depression that resulted in his hospitalization because he “crashed”
after he stopped using amphetamines. (32 RR 41-127).
The

State’s

second

expert

psychologist Jack Randall Price.

and

final

witness

was

forensic

Although Dr. Price was not able to

examine Bigby, he testified that the records “suggest and support”
that Bigby has a long-standing personality disorder.

He also saw a

history of amphetamine abuse and depression. Dr. Price testified that
in his opinion, Bigby’s paranoid personality was exacerbated by the
use of methamphetamines.

(32 RR 167-225).

The defense’s rebuttal case consisted of reading additional prior
testimony of Bigby’s father. The testimony indicated that Bigby could
not have removed wing nuts from his mother’s crutches because the
crutches, which were introduced into evidence at the first trial, did
not have wing nuts.

(33 RR 52-53).
2.

Jury Argument

14

In its jury argument, the State pointed out that Bigby planned
the murder spree, set up his victims, and killed them by stealth.

The

State posited that Bigby has been well-behaved in prison only because
of the contained environment and, if given the opportunity, he would
be dangerous.

The State described Bigby as a scammer whose mental

symptoms are a result of methamphetamine abuse, not mental illness.
The State stressed that Bigby expressed no remorse for killing anyone
except the baby and had stated that there were six or seven other
people he would have liked to have killed.

The State argued that not

all mentally ill people commit crimes and, irrespective of any mental
illness, there is ample evidence showing that Bigby would be a future
danger. (33 RR 57-68, 101-16).
Defense counsel argued that the murders did not make sense unless
mental illness was factored in, especially as to the infant, whom
Bigby liked.

If Bigby had planned the murders, counsel argued, he

would not have fled to a motel that was a stone’s throw away from
where Crane’s body was found, and he would not have immediately
admitted guilt when confronted by the police negotiator.

Counsel

pointed out that the State’s predictions on future dangerousness in
the first trial were proven wrong, because Bigby has shown that he can
act properly when incarcerated in the general population and on death
row.

Counsel argued that Bigby was not the same person who murdered

four people in 1987, that he is still mentally ill regardless of the
label you give it, but he has undergone a genuine religious conversion
that has dramatically changed his behavior.
3.

(33 RR 69-101).

State Habeas Evidence

15

In support of his state habeas petition, Bigby presented a report
prepared by Toni Knox, his habeas mitigation specialist.

The report

included an assessment of the trial mitigation investigation and
presentation and a 43-page psychosocial history.

(2 SHR 153-220).

Supporting documents included a genogram (family tree), a timeline of
Bigby’s life, school records, and an affidavit of the dismissed
mitigation investigator, Shelli Schade, with supporting documents.
(2 SHR 221-71; 4 SHR 688). Knox included a 1990 competency assessment
from the first trial by Dr. Raymond Finn, a 1987 assessment from CPC
Oak Bend Hospital, a 1920 national census, pages from Bigby’s and his
mother’s high school yearbooks, and his mother’s medical records.
SHR 278-82, 287-90; 3 SHR 296-680; 4 SHR 690).

(2

Knox submitted

memoranda of interviews with several of Bigby’s relatives, including
Susan Black (a cousin), Judy Pogue (former sister-in-law), and Marvin
Bigby (uncle).

(2 SHR 284, 292; 4 SHR 682).

two affidavits:

In addition, there are

one from Bigby’s older half-brother Ronald Blevins

and another from former sister-in-law Jerita O’Neal.

(2 SHR 272; 4

SHR 684).
The State presented two affidavits from both trial counsel which
are essentially identical. The State also submitted an affidavit from
the defense team’s expert, Dr. Kelly Goodness, and her handwritten
interview notes.

D.

(4 SHR 799-844, 850-61).

Counsel’s Investigation and Presentation

The judge who presided over the state habeas proceedings was the
same judge who had presided over Bigby’s 2006 trial.

16

(1 SHR 112; 4

SHR 939).

Where appropriate, she used her personal recollection of

the trial to resolve the habeas issues.

(4 SHR 907).

She found that

both of Bigby’s appointed counsel were highly qualified, experienced
capital-defense attorneys, who were very familiar with mitigation and
mental-health issues in capital cases.

(4 SHR 909).

As an initial matter, the record does not support Bigby’s
assertion that his attorneys engaged in the same battle of experts
that failed in his first trial.

Using both new evidence and evidence

from the prior trial, counsel developed a two-part strategy for
obtaining a life sentence based on the future-dangerousness and
mitigation issues that were submitted to the jury in the court’s
charge.4

4

These two issues are as follows:

Do you find from the evidence beyond a reasonable doubt that
there is a probability that the Defendant would commit
criminal acts of violence that would constitute a continuing
threat to society?
Do you find from the evidence, taking into consideration all
of the evidence, including the circumstances of the offense,
the Defendant’s character and background, and the personal
moral culpability of the defendant, that there is a sufficient
mitigating circumstance or circumstances to warrant that a
sentence of life imprisonment rather than a death sentence be
imposed?
See Tex. Code Crim. Proc. Ann. art. 37.0711, §§ 3(b)(2) and 3(e)(West
2012); (7 CR 871). A “yes” answer to the future dangerousness issue and
a “no” answer to the mitigation issue required the court to assess a
sentence of death. See art. 37.0711, § 3(g).
In this case, a third issue asked: “Do you find from the evidence
beyond a reasonable doubt that the conduct of the Defendant that caused
the death of Michael Trekell was committed deliberately and with a
reasonable expectation that the death of Michael Trekell or another would
result?” See art. 37.0711, § 3(b)(1). This deliberateness issue, which
requires a “no” answer for a death sentence, is no longer used for crimes
committed after 1991. Compare art. 37.071, § 2(b).
Because Bigby’s

17

Counsel first sought to prove that Bigby would not pose a future
danger if given a life sentence because he had spent 15 years on death
row with no significant disciplinary problems.

Counsel showed that

Bigby’s first death-row facility was less secure and allowed Bigby to
work in a garment factory with access to sewing machines and scissors,
such that Bigby’s lack of violent behavior could not be dismissed
entirely as a product of the security conditions.

(29 RR 99-102; 32

RR 109-10, 114-115, 124-25; 33 RR 38-41; 33 RR 71-72 (argument)).
This

strategy

included

new

testimony

about

Bigby’s

religious

transformation while incarcerated and its ameliorating effect on his
anger and his mental illness.

(28 RR 82-87, 98, 123-24, 140; 32 RR

117-18, 220-22; 2 SHR 262, 266 (emails explaining counsel’s strategy);
33 RR 74-75, 87 (argument)).
available

at

the

first

Obviously, none of this information was

trial.

Counsel

considered

this

future

dangerousness issue, which the prosecution had to prove beyond a
reasonable doubt, as more likely to save Bigby’s life than the mitigation issue and, according to counsel, the lead prosecutor agreed.

(4

SHR 722, 738).
The mitigation portion of counsel’s strategy focused on Bigby’s
mental illness at the time of the offense, using the 1991 experts.
Trial counsel rejected a strategy based on Bigby’s current (i.e.,
2006) mental illness because (1) a new examination of Bigby would have

offense occurred in 1987, the deliberateness issue was retained for his
resentencing in 2006. See art. 37.0711, § 1. It does not affect the
analysis of the issues in this case.

18

produced evidence of psychopathy (which is a personality disorder not
a mental disorder (32 RR 173)), and (2) Bigby would have refused to
cooperate or had outbursts before the jury, thereby undermining
counsel’s efforts to show he was not a future danger.

(4 SHR 721-22,

736-37).
Counsel outlined three advantages to relying on the 1991 experts.
First, the deceased experts could not be further cross-examined and
their cross-examination at the first trial was largely related to
insanity, which was not an issue on retrial.

Second, their examina-

tions were closer in time to the offense than any new examination
would be.

Third, it prevented Bigby from being subjected to a new

state-sponsored mental-health examination.

(4 SHR 720-21, 735; 6 CR

808; 7 CR 823).
Counsel’s reasoning is supported by the record.

The record

demonstrates Bigby’s belief that God cured his mental illness and drug
addiction and that Bigby disagreed with a strategy of present mental
illness.

(2 SHR 266; 4 SHR 832-44; 2 RR 15, 23 (motion for self-

representation); 31 RR 66-67 (Bigby tells trial judge, “I believe
everybody in the courtroom knows I’m competent.

I’m competent”)).

Although counsel and Dr. Goodness believed Bigby was competent and
possessed improved mental health in 2006 (2 SHR 266, 269; 4 SHR 719,
733), Bigby was still prone to outbursts and demonstrations in the
courtroom.

(2 RR 4-37; 4 RR 24, 52; 25 RR 92, 103-04, 31 RR 56-75).

Counsel was rightly concerned about undermining his case against
future dangerousness by triggering another courtroom outburst from
Bigby,

which

counsel

believed

would

19

scare

the

jury,

given

the

similarity it would have had to Bigby’s behavior during the first
trial.

(4 SHR 722, 737).

Counsel’s concern about exposing Bigby to

a formal diagnosis by a state’s expert is likewise supported by the
testimony of the two state experts who, unable to examine Bigby in
2006, linked his offense to antisocial or psychopathic “traits” and
“behavior.”

(32 RR 77, 204).

This two-part strategy and counsel’s supporting investigation
were objectively reasonable.

According to their affidavits, counsel

had the records from the first trial and from first trial counsel,
Larry Moore, which documented interviews with Bigby’s family members.
(4 SHR 719-20, 733-34, 857, 860).
discuss his earlier efforts.

Counsel also met with Moore to

Counsel reviewed discovery from the

prosecution, interviews of lay and expert witnesses, consultations
with mental-health professionals, and prison records.

(4 RR 8, 14,

32-35 (discovery hearing); 5 CR 564-66, 571-72, 594-96; 7 CR 832
(discovery compliance); 6 CR 636 (discovery motion), 660).

When

counsel asked Bigby about family members who might provide information, Bigby stated that almost every one of his relatives were
deceased and that his favorite brother had died from brain cancer.5
(4 SHR 857, 860; see 2 RR 26).

Counsel contacted prison employees and

spoke with LeAnn O’Neal (Bigby’s niece), Meredith Perry, and “J.
Mears,” but they were of no assistance.

(2 SHR 261; 4 SHR 722, 738,

858, 861).

5

Presumably, this is a reference to Arthur O’Neal, who died of
cancer in 2005. (4 SHR 684 (affidavit of Arthur’s wife)).

20

Counsel retained forensic psychologist Kelly Goodness to evaluate
Bigby’s competency, review portions of the record from the first
trial, and make recommendations about using Bigby’s mental health
issues

in

mitigation.

(4

SHR

702-03).

When

the

mitigation

investigator was dismissed, Dr. Goodness provided additional services
to support counsel’s decision to focus on Bigby’s mental state at the
time of the offense and to tie together relevant material obtained
throughout the years.

(4 SHR 703).

Dr. Goodness analyzed voluminous

records and mental-health opinions, provided a current diagnosis of
Bigby and a diagnosis at the time of his first trial, interviewed
relevant people, and identified fact witnesses.

(4 SHR 703-04).

She

cultivated psychiatrist Lisa Clayton as their teaching expert due to
Dr. Clayton’s unique relationship with the original experts.
704, 721, 735; 29 RR 186-274).

(4 SHR

Dr. Goodness developed a rapport with

Bigby and spoke to him at great length.

(4 SHR 719, 732, 831-844; 6

CR 725 (Bigby recounts visit with Dr. Goodness)).
Counsel’s affidavits show that they knew of multiple social
history reports already in the record, four of which are acknowledged
in Knox’s report.

(4 SHR 857, 860; 2 SHR 164-66).

The social history

dated July 7, 1987, was prepared by a certified social worker and
specifically mentions Bigby’s prior use of speed, marijuana, and
alcohol, and the general circumstances of his family of origin.
RR 138; 37 RR 52-55).

(27

Counsel chose to use experts who had already

evaluated Bigby and were now deceased, making a new social history
unnecessary for a mental-health diagnosis. And while Bigby criticizes
the existing reports for lacking detail or minimizing his drug abuse

21

and family dysfunction, there is no basis to conclude that Knox’s
social history would have changed Bigby’s diagnosis.

In fact, Bigby

does not identify any diagnosis that, if assigned to him, would have
been more mitigating than the range of psychoses that Dr. Clayton
assigned to him at trial; he simply states his diagnosis “may have
been different.”

(2 SHR 166); Petition at 58.

Furthermore, Knox states in her report that an actual diagnosis
is not as important in trial as an inventory of symptoms.
167).

(2 SHR

Through the testimony or prior testimony of Bigby’s father,

three former attorneys, a hospital employee, the former medical
director of the county jail, two former defense experts, and a prison
chaplain, the jury received evidence of Bigby’s obsession with his
workers’ compensation lawsuit, his paranoia, delusions, depression,
disordered thinking, and medications. (27 RR 21-23, 29-30, 41-48, 5155, 66-68, 70-72, 87-88, 106, 109, 176-89, 220-30; 28 RR 13-17, 23-33,
70, 99, 109-12, 134-39).

Counsel introduced evidence regarding the

separation of Bigby’s parents, Bigby’s separation from Jerry, his
mother’s physical disability and Bigby’s “helper” status.
26, 37-38, 46-49).

(27 RR 19,

The jury heard evidence that Bigby’s mother and

aunt were in nursing homes due to mental incompetence and that
dementia is more common in people with schizophrenia.
25, 31, 37, 46-47; 29 RR 220; 4 SHR 858, 860-61).

(27 RR 19, 24-

The jury was left

to infer from this information that Bigby’s mother and aunt may have
been schizophrenic.

Counsel also presented the testimony of Bigby’s

private psychiatrist, Dr. Eudaly, as well as records from psychologist
Dr. Koechel and records from hospitalizations and shock treatment that

22

occurred prior to the offense.

(27 RR 115-70; DX 49 (records of Drs.

Eudaly and Koechel); DX 50 (CPC Oak Bend Hospital records); DX 51 (St.
Joseph Hospital records)).

As trial counsel accurately explained:

[T]he writ application seems to suggest that somehow
whether Mr. Bigby was mentally ill was a hotly contested
issue.
In my opinion, there was not a soul in the
courtroom that did not believe that Mr. Bigby was severely
mentally ill at the time of the offense. There was ample
and overwhelming evidence of Mr. Bigby’s mental illness
presented at trial. There may have been some dispute as to
the extent and degree of his illness, and certainly a
dispute regarding whether it mitigated such evidence as
drowning an infant in a sink of water and securing a deadly
weapon in the courtroom of his previous trial.
(4 SHR 720, 734). Counsel were aware of strengths and weaknesses in
their

case

vis-a-vis

the

reasonable investigation.

special

issues.

Counsel

conducted

a

E.g., Martinez v. Dretke, 404 F.3d 878,

885-86 (5th Cir. 2005) (holding that counsel’s reliance on information
gained during first trial, plus additional investigatory efforts into
defendant’s

mental

health

records,

family

members,

and

expert

psychiatric assistance was a reasonable mental-health investigation).
Given what defense counsel knew about Bigby’s benign prison record and
his mental status, their decision to first pursue a negative futuredangerousness finding and then to focus mitigation efforts on Bigby’s
mental health at the time of the offense, was objectively reasonable.
1.

Dismissal of Mitigation Specialist

Nevertheless, Bigby maintains that counsel should not have dismissed mitigation specialist Shelli Schade, who could have prepared
a more comprehensive investigation and could have testified.

Counsel

removed Schade because they were dissatisfied with her work, which
they described as “nothing short of abysmal.” She also tried to weigh

23

in on mental-health issues for which she was not qualified, and she
did not have a good rapport with Bigby.

(4 SHR 719, 732-33).

Schade’s emails confirm that she did try to weigh in on the competency
issue.

(2 SHR 256, 262, 266-67).

Dr. Goodness’s notes and counsel’s

email to Schade confirm that Bigby refused to see Schade because she
“baited him out” and promised him an audience with the judge, which
she could not deliver.

(2 SHR 262; 4 SHR 835).

Bigby points out, however, that counsel asked Schade to speak
with Bigby about whether he should testify when Bigby refused to speak
with anyone else.

(Petition at 62; 2 SHR 251, ¶ 19).

The record

reflects that Schade did speak to Bigby in mid-trial about whether to
testify, (28 RR 115), but this fact does not undermine counsel’s prior
decision to dismiss Schade.

The record contains abundant evidence of

Bigby’s difficult and, at times, manipulative behavior.6

Trial

counsel stated in an email that Bigby simply chose not to cooperate
when it suited him.

(2 SHR 262).

Bigby refused Schade’s visits

before trial and initially refused to see Dr. Goodness as well.

(2

SHR 255-56, 262). Schade’s efforts to speak with Bigby about testifying were ultimately “futile.”

(Petition at 62.)

Under these circum-

stances, Bigby’s insistence on speaking to Schade and only Schade, if

6

4 SHR 723, 739; 2 RR 4-37 (motion for self-representation); 4 RR
24 (objection to counsel’s motion in limine); 4 RR 44-45 (objection to
State’s expert); 4 RR 47; 5 CR 591; 6 CR 724-28 (declarations of conflict
with counsel); 4 RR 52-53 (admonishment that Bigby stop speaking out of
turn); 25 RR 92, 106-07 (calling witness a liar); 28 RR 134-36 (Larry
Moore’s testimony); 31 RR 56-75 (changing clothes and refusing to sit
through trial); 7 CR 817 (motion to recuse).

24

true, is a reflection of Bigby’s usual pattern of difficult behavior
and not the quality of Schade’s work as a mitigation investigator.
Counsel did not forego mitigation assistance after dismissing
Schade, as Bigby contends.

(Petition at 45.)

Dr. Goodness stepped

in as the mitigation specialist, interviewing witnesses and reviewing
voluminous records.

Bigby acknowledges that Dr. Goodness’s profes-

sional agency provides not only psychological services but mitigation
services

as

well.

attributed

a

mitigation

work.

(Petition

previous
(4

client’s
SHR

at

72.)

life

718-19,

In

fact,

sentence

732).

Of

to

trial
Dr.

course,

counsel

Goodness’s
given

her

additional role as a consulting, non-testifying mental-health expert,
Dr. Goodness did not testify as a mitigation specialist.

But Bigby

fails to clarify what Schade’s testimony would have been.

And Bigby

does not demonstrate that Dr. Goodness’s dual role was outside the
range of reasonable representation.

See ABA Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases 10.4
cmt., p. 1003 (2003) (noting that counsel is free to allocate duties
imposed by Guidelines to appropriate members of the defense team, with
two exceptions that do not apply here).
2.

Allegations of Overlooked Evidence

Bigby claims that the defense team overlooked additional evidence
of his family’s dysfunction and his risk factors for mental illness
that would have resulted in a life sentence.
support these factual allegations.

25

The record does not

Bigby asserts that counsel “may have” overlooked unidentified
health records of his mother, but this claim is based on speculation
that such records existed and would have been helpful to the defense.
(Petition at 60.)

Bigby’s claim that his mother drank alcohol during

her pregnancy with him, possibly affecting his development, is also
not supported by his evidence.

Compare Petition at 47 with 2 SHR 274

(Ronald Blevins’ affidavit stating that his mother frequently drank
beer after Bigby was born, leaving Bigby unsupervised). Bigby’s claim
that counsel failed to obtain the psychological and/or institutional
records of Jerry and Trudy likewise fails because Bigby did not
produce any evidence of those records.
contents was stricken as hearsay.

Knox’s summary of their

(4 SHR 908-09).

Furthermore,

Bigby’s “abandonment” theory is undermined by the fact that Bigby was
the one child his mother did not give away and by the testimony of
Bigby’s father, who indicated that he visited his son once or twice
a week after separating from his wife.

(27 RR 58).

To the extent Bigby alleges counsel overlooked the witnesses
interviewed during the state habeas investigation, there is little
evidence of what their testimony would have been and no evidence that
they would have been willing to testify.

(4 SHR 915).

Ineffective-

assistance claims based on uncalled witnesses must show that their
testimony would have been favorable and that the witness would have
testified at trial.

See Gregory v. Thaler, 601 F.3d 347, 352 (5th

Cir. 2010); Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Knox’s report reflects that Bigby’s brother Jerry “is fearful of

26

James and does not want to take a chance of being called into court.”
(2 SHR 202).

Bigby’s 1987 deposition in the Frito-Lay lawsuit

confirms the “bad blood” between them and the fact that they did not
“see eye to eye on anything,” further undermining the likelihood that
Jerry would have testified.

(SX 108, p. 20).

Bigby’s half-brother,

Ronald, stated that he does not have a good relationship with Bigby
and has had no contact with him for many years.

Ronald’s affidavit

contains no statement regarding his willingness to testify.
274).

(2 SHR

A cousin named Susan Black did not provide an affidavit, and

Knox’s memorandum of what she said was stricken by the state court as
hearsay.

(2 SHR 284; 4 SHR 908, ¶ A(2)).

Similarly, Knox’s summary

of an interview with Ronald’s ex-wife, Judy Pogue, indicates that
Pogue “did not want to help James particularly, but was willing to
give information about his family”; Knox’s memorandum of Pogue’s
interview was stricken as hearsay.

(2 SHR 292; 4 SHR 908, ¶ A(2)).

Bigby’s uncle, Marvin Bigby, likewise did not provide an affidavit,
and the memorandum of his interview, also stricken as hearsay,
indicates he was “not willing to do anything that will be helpful to
James.”

(4 SHR 682, 908, ¶ A(2)).

An affidavit provided by former

sister-in-law Jerita (Arthur’s ex-wife) was stricken in part as
hearsay and contains no statement concerning her ability or desire to
have testified at trial.

(4 SHR 684, 908, ¶ A(3)).

Even assuming that these additional records and witnesses were
available at the time of trial, a reasonable attorney would not
necessarily have presented them to the jury.

27

As Bigby acknowledges,

his attorneys were in possession of his mother’s medical records,
which were obtained by original counsel in 1991. (Petition at 59-60.)
Counsel also knew that Bigby’s mother was an alcoholic who had
abandoned her other children and who did not have much success in
life. Counsel knew about the “twisted” nature of Bigby’s relationship
with his mother and descriptions of them as vindictive, angry, and
bitter.

(4 SHR 857-58, 860-61).

But, as counsel explained, “In my

opinion, the mental health status of various family members is really
only important when there is a dispute regarding whether the defendant
is in fact mentally ill.” (4 SHR 720, 734).

Counsel did not face the

difficulty of presenting a diagnosis for the first time at trial,
which jurors may suspect is manufactured.

(4 SHR 720, 734).

Counsel

believed that evidence focusing on Bigby’s genetic predisposition
toward mental illness would not have been an effective strategy in
this case because, in their experience, the State would compare Bigby
to his mentally ill relatives who were not out “drowning infants or
killing people.”

(4 SHR 720, 734-35, 858, 860, 918-19).

Likewise, counsel did not believe that evidence of family dysfunction would have been mitigating, even though it may have contributed to Bigby’s mental illness, as Bigby was the only family
member who became a capital murderer.

(4 SHR 721, 735-36, 858, 861).

To the extent the witnesses would have shown the dysfunction in
Bigby’s family, counsel believed this sort of evidence would show only
that “James comes from a long line of angry, mean people who do bad
things, other than the fact that none of them drowned a baby.”

28

(4 SHR

858, 860).
part.

This was an objectively reasonable belief on counsel’s

See, e.g., Woods v. Thaler, 399 Fed. Appx. 884, 897 (5th Cir.

2010) (stating that evidence of a genetic predisposition to mental
disease may undermine counsel’s efforts to prove the defendant would
not be a future danger).
3.
Bigby

asserts

that

Counsel’s Presentation
counsel’s

presentation

overlooked

other

theories and devices that should have been employed at trial.

For

example, he states counsel should have argued that he had a serious
substance-abuse problem that was never properly treated during his
hospitalizations. (Petition at 62-63.) The state court rejected this
contention, however, because it is unsupported by evidence of an
expert opinion.

(4 SHR 921).

Additionally, the Fifth Circuit has

long denied claims of ineffective assistance based on counsel’s
tactical decision not to present “double-edged” evidence such as drug
abuse.

See St. Aubin v. Quarterman, 470 F.3d 1096, 1103 (5th Cir.

2006); Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir. 2003).
Counsel could have reasonably decided that linking Bigby’s offense to
volitional, untreated drug abuse would have been unwise because it
undermined their theory that Bigby had been off drugs well before the
murders and that the murders were a result of mental illness.

(33 RR

84-86).
Bigby argues that counsel should have used a genogram to explain
that Bigby chose Christmas Eve to act because his mother injured her
leg around Christmas Eve, and she often became depressed and suicidal

29

around Christmas.

Trial counsel believed that this genogram, a

timeline extending back to 1888, largely comprised of “so and so begat
so and so,” would have been of no assistance to the defense.
721, 736; 2 SHR 171).

(4 SHR

Bigby also contends counsel should have

presented the argument that choices were made for Bigby before he was
capable of making choices for himself.

(Petition at 62-68.)

The

state court rejected these and other proposed ideas for humanizing
Bigby,

such

as

demonstrating

Bigby’s

mental

anguish

over

his

lifetime, offering photographs of Bigby, and showing Bigby’s inability
to control his behavior and learn from his mistakes. (4 SHR 919, 92122).
There are countless ways to effectively represent a capital
defendant.

See Pinholster, 131 S. Ct. at 1403 (quoting Strickland).

Counsel here believed that their strongest chance of saving Bigby’s
life was to show his lack of propensity for future dangerousness
“rather than a shotgun approach of throwing things against the jury
box to see what might stick with no plan or consistency in mind.”
SHR 723, 739-40).
counsel

could

have

(4

While Bigby proffers alternative theories that
presented,

mere

disagreement

with

counsel’s

strategy will not satisfy the Strickland standard of unreasonable
performance.
hindsight,

See Pape, 645 F.3d at 291 (concluding court may not, in
second-guess

counsel’s

strategy

merely

because

an

alternative course of action existed during trial); Crane v. Johnson,
178 F.3d 309, 312 (5th Cir. 1999).

The question is not whether there

were other strategies available but whether the chosen strategy was

30

objectively reasonable, keeping in mind that not all cases will
benefit from a defense focused on humanizing the defendant.7

See Van

Hook, 130 S. Ct. at 17 (emphasizing that the Constitution imposes one
general

requirement:

that

counsel

make

objectively

reasonable

choices).
Assuming

the

truth

of

Bigby’s

factual

claims,

alcoholic, and disabled mother was not the ideal parent.

his

angry,

But he was

raised with his grandparents in their home and he maintained regular
contact with his father.

(2 SHR 203; 27 RR 58).

Bigby contends his

teenage years lacked structure and rule enforcement and that his
mother and grandparents had “limited financial resources,” but there
is no evidence that he lived in poverty or was physically or sexually
abused.
school,
diploma.

(2 SHR 204-05).
Bigby’s

chosen

Although he did not graduate from high

lifestyle

did

not

require

a

high-school

With his average intelligence, he earned a GED in prison.

(2 SHR 209-10).

Experienced counsel could have reasonably decided

that the jury would be unimpressed with an attempt to humanize Bigby
on account of these childhood circumstances.

Cf. Wiggins, 539 U.S.

535 (reciting “powerful” overlooked mitigation evidence of severe
privation and abuse while in care of an alcoholic, absentee mother;

7

As the chief judge of the Ninth Circuit has observed: “The current
infatuation with ‘humanizing’ the defendant as the be-all and end-all of
mitigation disregards the possibility that this may be the wrong tactic
in some cases because experienced lawyers conclude that the jury simply
won’t buy it. Not all defendants are capable of rehabilitation, and not
all juries are susceptible to such a plea.” Pinholster v. Ayers, 590
F.3d 651, 692 (9th Cir. 2009) (Kozinski, C.J., dissenting), rev’d sub
nom., Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

31

physical torment, sexual molestation, and repeated rape while in
foster

care;

periods

of

homelessness;

and

diminished

mental

capacities).
4.

Bigby’s Decision Not to Testify

Finally, Bigby complains that counsel’s plan to have him testify
failed due to their inadequate preparation and a poor rapport.
Petition at 62.

The record refutes Bigby’s allegation that counsel

planned for Bigby to testify.
In their affidavit, counsel state that they had a good rapport
with Bigby, that he was very involved in his case, and that he wanted
to testify but they recommended against it.

In the end, Bigby relied

on counsel’s advice and, “perhaps for some of his own reasons,”
decided not to testify.

(4 RR 723, 739).

counsel’s recollection.

Bigby stated under oath that he was aware of

his right to testify.

The trial record supports

He decided, after praying for an hour and a

half and speaking with counsel, as well as Shelli Schade, that God did
not want him to testify.

(28 RR 115-16).

decision at the end of the trial.

Bigby reiterated his

(33 RR 51-52).

Bigby’s present opinion to the contrary notwithstanding, the
state court’s rejection of this claim was not unreasonable.

(4 SHR

920-21); United States v. Cronic, 466 U.S. 648, 657 n.21 (1984)
(attaching no weight to the client’s “expression of satisfaction with
counsel’s performance at the time of his trial, or to his later
expression of dissatisfaction”).

32

5.

Conclusion

Bigby’s argument boils down to whether counsel investigated
enough and presented enough evidence relating to Bigby’s upbringing
and mental-health history.

This Court must be particularly wary of

these types of arguments, which essentially come down to a matter of
degrees and are ”even less susceptible to judicial second-guessing.”
See Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999).

Counsel

presented, but did not emphasize, evidence of Bigby’s childhood and
possible

genetic

disposition

to

mental

illness

because

counsel

otherwise had strong proof that Bigby was mentally ill at the time of
the offense, and the State would have simply pointed out that none of
Bigby’s family members committed capital murder.

Such tactical

decisions are objectively reasonable and do not amount to deficient
performance within the meaning of Strickland.

See Brown v. Thaler,

684 F.3d 482, 499 (5th Cir. 2012), cert. denied, 185 L.Ed.2d 190
(2013) (upholding the district court’s decision that, inter alia,
petitioner’s trial counsel reasonably could have decided that a
mitigation defense would be a double-edged sword and that the best
chance to save petitioner’s life was to try to persuade the jury that
petitioner would not be a future danger if imprisoned for life); see
also Williams v. Cain, 125 F.3d 269, 278 (5th Cir. 1997) (holding that
evidence of abusive, violent upbringing, or abuse of alcohol and drugs
can

be

double-edged

and

a

tactical

decision

not

to

“humanize”

defendant with such evidence would not be deficient performance).

33

Bigby fails to demonstrate that the state court’s finding against
deficient representation was unreasonable.

E.

Assessment of Prejudice

The state court concluded that the mitigating evidence presented
in the habeas proceeding was relatively weak and the aggravating
evidence “extensive and compelling,” such that there is no reasonable
probability that the jury, if confronted with the new evidence, would
have sentenced Bigby to life imprisonment rather than death.
928-29).

Bigby

fails

to

demonstrate

that

this

(4 RR

conclusion

was

unreasonable.
Bigby’s background and mental state were well developed at trial,
such that the information collected for habeas review duplicates in
large part the body of evidence received by the jury.
information

regarding

Bigby’s

paranoia,

delusions,

For example,
depression,

psychosis, drug use, childhood circumstances, and mentally disabled
mother and aunt was presented through the testimony of his father,
three former attorneys, a hospital worker, his treating psychiatrist,
the

medical

director

of

the

county

jail,

two

court-appointed

psychiatrists, a prison chaplain, and voluminous medical and prison
records. Because the nature of this offense involved the inexplicable
murder of three apparent friends, Bigby’s background and mental status
were further developed by State’s witnesses, including the wives of
Trekell and Johnson, and seven men and three women who knew Bigby
during childhood and young adulthood.
testified for the State.

34

Bigby’s former wife also

Moreover, some of the new habeas information is of questionable
value to the defense.
estranged

from

his

Half-brother Ronald indicated that he became
mother

in

part

because

Bigby

used

Ronald’s

identification when he was stopped by the police, causing Ronald to
be arrested, and their mother wanted Ronald to take the blame. Ronald
describes another time when his grandmother asked him to come to her
house because she was afraid and intimidated by Bigby, who had a
friend staying in her house.

The friend was the brother of the man

who, ten years later, would help Bigby cut down the shotgun used to
kill Frank “Bubba” Johnson.

(2 SHR 274; 30 RR 32).

Bigby’s Uncle Marvin told Knox that “anyone that had killed four
people and one of them was a baby deserves to die,” and “[Bigby] was
tried twice and sentenced to death two times and it should just be
carried out.”

(4 SHR 682).

Jerita O’Neal’s affidavit discussed the

unhappy childhood of Bigby’s older half-brother, Arthur, whom Jerita
married after the murders occurred, and Arthur’s sister, Trudy.
SHR 684-86).

(4

It relates no mitigating information about Bigby, but

describes Arthur’s abandonment and the hurt Arthur felt when his
mother carried on with her new family, i.e., Bigby’s family.

Bigby’s

cousin, Susan Black, described the “bad attitude” of Bigby’s mother,
who blamed the world for her problems and believed the world owed her
something, as an attitude that Black later observed in Bigby.

(2 SHR

284). The interview of Ronald’s ex-wife indicates that Bigby’s mother
favored Bigby among her children and yet Bigby would on occasion throw
his disabled mother’s crutches out of reach–-information remarkably

35

similar to the “wing nut” testimony that Bigby hotly disputed at
trial.

(2 SHR 293; 31 RR 57-59).

Further, there is no evidence of prejudice resulting from Bigby’s
failure to testify because he does not identify the content of his
would-be testimony or demonstrate how it would have affected the
trial.

See Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001)

(observing that prejudice element cannot be satisfied where petitioner
fails to explain what his testimony would have been).
Against the body of mitigation evidence weighs the murder of four
people, one a helpless infant.
use of his right arm.

Trekell was disabled, having lost the

(23 RR 27).

Bigby told Dr. Coons that he “sat

down a while” after killing Trekell and before deciding to smother
Jayson with cellophane and then drown him, indicating that the child’s
murder was not an impulsive act.

(32 RR 70).

Trekell’s wife, who

came home from work on Christmas Eve to find her husband and infant
son

dead,

children.

testified
(23 RR 4).

that

she

has

never

remarried

or

had

other

Wesley Crane’s son testified that his father

had taken him Christmas shopping earlier on the day he died and that
he very much misses his dad today.

(23 RR 126-29).

Frank “Bubba”

Johnson’s wife had been wrapping Christmas presents and cleaning the
house for company before going to bed at midnight on the day before
Christmas Eve.

(23 RR 159).

She, her husband, and her son were in

their beds when the doorbell rang at 3:30 a.m., and she heard her
husband get shot after he answered the door.
in the house, which was sold in foreclosure.

36

She never again lived
(23 RR 159-63).

Bigby planned these murders and carried them out through trickery
and surprise.

He was thirty-two years old and had a long, diverse

criminal career.

He was a full-time thief who had already served two

prison sentences.

There were many examples in the record of his

enthusiasm for revenge and his utter disregard for the rights of
others, including his own mother.

When arrested, an arsenal of legal

and illegal weapons and ammunition was found in his motel room.

If

this history and a quadruple homicide were not enough, during his
first trial Bigby retrieved a loaded pistol from the judge’s bench and
attempted to kidnap the judge at gunpoint.
Given

the

circumstances

of

the

offense,

the

considerable

aggravating evidence, the double-edged nature of the psychological
evidence

and

drug

use,

and

the

moderate

evidence

of

childhood

difficulties, Bigby has not demonstrated a reasonable probability of
prejudice

due

presentation.

to

counsel’s

alleged

deficient

investigation

and

See Woods, 399 Fed. Appx. at 897 (finding no prejudice

given the great amount of aggravating evidence and double-edged nature
of neuropsychological evidence). The totality of available mitigating
evidence, when weighed against the aggravating evidence, is not
sufficient to undermine confidence in the trial outcome.

Bigby fails

to show that the state court’s ruling was unreasonable, and claims 1
and 2 are denied.

IV.

Counsel’s Representation in Voir Dire (claims 3A-L)

Bigby next asserts that counsel rendered ineffective assistance
by

failing

to

adequately

question

37

potential

jurors

about

the

mitigation special issue.

Bigby appears to contend that counsel’s

allegedly insufficient mitigation investigation per se resulted in
counsel’s failure to conduct meaningful void dire examination on the
subject of mitigation.

(Petition at 79-83.)

Bigby fails to identify

any specific question unasked by counsel that a reasonable attorney
would have asked, however.

Bigby also fails to allege how he was

prejudiced by counsel’s examination of the potential jurors.

Absent

a specific showing of how the alleged error was constitutionally
deficient and how it prejudiced Bigby’s right to a fair trial, the
Court can find no merit to the claim.

See Miller v. Johnson, 200 F.3d

274, 282 (5th Cir. 2000) (clarifying that “conclusory allegations of
ineffective assistance of counsel do not raise a constitutional issue
in a federal habeas proceeding”).
Bigby seems to suggest that if counsel had known about the
evidence gathered by Toni Knox during the habeas investigation, he
would have been able to question the venire in a way that allowed him
to select a jury predisposed to accepting such evidence. (Petition at
81-82.)

But jurors are not required to consider a particular type of

evidence to be mitigating.

Standefer v. Texas, 59 S.W.3d 177, 181

n.17 (Tex. Crim. App. 2001) (citing Raby v. Texas, 970 S.W.2d 1, 3
(Tex. Crim. App. 1998)).

In fact, questions asking whether the

potential jurors could consider particular types of evidence to be
mitigating would have been improper under Texas law.

Standefer, 59

S.W.3d at 181 (stating that “where the law does not require a
commitment, a commitment question is invariably improper”); e.g.,

38

Soria v. Johnson, 207 F.3d 232, 244 (5th Cir. 2000).
no

authority

that

counsel

is

ineffective

for

Bigby presents
failing

to

ask

mitigation-related questions in voir dire.
To be clear, Bigby does not contend that his counsel allowed the
seating of a juror who was unconstitutionally biased against the
mitigation issue and thus subject to removal for cause.

See Dorsey

v. Quarterman, 494 F.3d 527, 533 (5th Cir. 2007)(citing Wainwright v.
Witt, 469 U.S. 412 (1985)). In this regard, the Court notes that both
the prosecutor and trial counsel propounded questions calculated to
assess the potential jurors’ qualifications under Wainwright, and none
of the empaneled jurors demonstrated an impaired ability to consider
mitigation evidence.

See 5 RR 31-32, 77-79 (Walker); 7 RR 23, 52

(Kinnear), 73-76, 95-96, 98 (Kindred), 160-61, 181-83 (Templin); 10
RR 29-30, 50-52 (Lobstein), 84-85, 121-22 (Laurent); 11 RR 117-18, 147
(May); 15 RR 131-32, 149-51 (Guzman); 16 RR 84-88, 123 (Stewart), 15354, 180-81 (Sampson); 19 RR 27-33 (Lawson); 22 RR 103-05, 12123(Ward).
Bigby fails to demonstrate that the state court’s rejection of
this claim was unreasonable.

V.

(4 SHR 929-30).

Claim 3 is denied.

Evidence of Future Dangerousness (claim 5)

In claim 5, Bigby challenges the sufficiency of the evidence to
support the jury’s answer to the future-dangerousness special issue.
See supra at 18.

Respondent contends the claim is barred in federal

court because the state habeas court barred the claim based on an
adequate and independent state procedural rule.

39

See Coleman v.

Thompson, 501 U.S. 722, 731-32 (1991) (holding that federal habeas
courts generally will not consider the merits of a claim resolved by
state courts on a state-law ground that is both independent of the
federal question and adequate to support the judgment).

Respondent

also maintains that the state habeas court’s alternative holding
rejecting the claim on the merits was not unreasonable under §
2254(d).
The state habeas court concluded that the insufficiency claim was
not cognizable and should be denied under Ex parte Pareles, 215 S.W.3d
418, 419-20 (Tex. Crim. App. 2007) (differentiating a “no evidence”
claim, which is cognizable, from an insufficiency claim, which is
not). (4 SHR 936).

See also Ex parte Grigsby, 137 S.W.3d 673, 674

(2004) (stating that a challenge to the sufficiency of the evidence
is one of those instances where the court can never consider the
merits of the habeas applicant’s claim).

The failure to comply with

this Texas requirement to present a sufficiency-of-the-evidence claim
on direct appeal rather than habeas review is an adequate state ground
to bar federal review.

See Coleman v. Quarterman, 456 F.3d 537, 546

(5th Cir. 2006); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994).
Bigby does not argue any cause and prejudice or manifest injustice to
excuse the procedural default.

See Coleman, 501 U.S. at 750.

Accordingly, federal habeas review of this claim for relief is barred.
Renz, 28 F.3d at 432.
The state habeas court also conducted an alternative analysis of
this claim on the merits, citing Texas authority that relies on

40

Jackson v. Virginia, and concluded that the evidence was sufficient
and relief should be denied.

(4 SHR 936).8

Under Jackson, evidence

is sufficient to support the jury’s affirmative answer to the futuredangerousness issue if, viewing the evidence in the light most
favorable to the verdict, any rational juror could find the elements
of the issue beyond a reasonable doubt.

See Jackson v. Virginia, 443

U.S. 307, 319 (1979); Martinez v. Johnson, 255 F.3d 229, 244 n. 21
(5th Cir. 2001) (noting that the Texas Court of Criminal Appeals
applies the Jackson standard to evaluate the sufficiency of futuredangerousness evidence).

This federal Jackson standard is used to

determine if the amount of evidence satisfies the Due Process clause,
while state law determines the substantive elements that must be
proven.

See Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (per

curiam) (assessing evidence of guilt); e.g., Miller, 200 F.3d at 286
(assessing evidence of future dangerousness).
jury’s

future-dangerousness

determination

in

Factors that inform a
Texas

include:

the

circumstances of the offense, including the defendant’s state of mind
and whether he was working alone or with other parties; the calculated
nature of his acts; the forethought and deliberation exhibited by the
crime’s execution; the existence of a prior criminal record and the
severity of the prior crimes; the defendant’s age and personal
circumstances at the time of the offense; whether the defendant was

8

The fact that the state court alternatively reached the merits does
not vitiate the independent and adequate state procedural bar.
See
Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999); Harris v. Reed, 489
U.S. 255, 264 n.10 (1989).

41

acting under duress or the domination of another at the time of the
offense; psychiatric evidence; and character evidence.
State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).

Keeton v.

The state-court

decision rejecting Bigby’s insufficiency challenge may be overturned
on habeas review only if the decision was objectively unreasonable.
See Johnson, 132 S. Ct. at 2062.
The state court’s findings recount Bigby’s “murderous rampage”
against three of his friends and an infant, his matter-of-fact and
sarcastic demeanor during his police confession, the arsenal of
weapons in his possession at the time of arrest, his attempt to kidnap
his first trial’s judge, the conflicting evidence about the cause and
diagnosis of his psychological problems, his thoroughly criminal
lifestyle, the evidence of his desire to seek revenge, and his having
complied a list of other people he wanted to kill.

(4 SHR 931-36).

These findings are supported by the trial record, which the Court has
reviewed extensively.

The facts and circumstances are sufficient to

support the jury’s affirmative finding of future dangerousness, even
in light of the evidence that Bigby had been incarcerated previously
without serious incident.

See Devoe v. State, 354 S.W.3d 457, 461-66

(Tex.

(finding

Crim.

dangerousness

App.
in

2011)

multiple-murder

sufficient
case

evidence

despite

of

“almost

future

pristine”

behavioral record in prison); Robertson v State, No. AP-71,224, 2011
WL 1161381, at *1-2 (Tex. Crim. App.), cert. denied, 132 S. Ct. 844
(2011) (not designated for publication) (finding evidence of future
dangerousness

sufficient

in

double

42

murder,

despite

defendant’s

spending eighteen years on death row with no violent infractions).
The

state

court’s

ruling

on

the

merits

is

not

an

unreasonable

application of the Jackson standard.
Based on the foregoing, federal habeas relief is barred under
Coleman v. Thompson and, in the alternative, precluded under §
2254(d)(1).

VI.
Claims

The Court denies claim 5.

The Texas Death Penalty Statute (claims 4, 6, 7)
4,

6

and

7

challenge

the

constitutionality

of

the

mitigation special issue in the Texas death-penalty statute. See Tex.
Code Crim. Proc. Ann. art. 37.0711, § 3(e); supra at 18, fn. 3.

These

claims were all rejected by the state court on either direct appeal
or habeas review.

(4 SHR 930-31, 937-38).

They are all foreclosed

by Fifth Circuit precedent.
A.

Claim 4

In claim 4, Bigby alleges error under Apprendi v. New Jersey
because the mitigation issue implicitly places the burden of proving
mitigation on the defendant and because the indictment does not
provide notice of the death-qualifying facts that the state intends
to prove.

See Apprendi v. New Jersey, 530 U.S. 466 (2000).

The

opinion in Apprendi held, “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”

See Apprendi, 530 U.S. at 490.

Respondent asserts, correctly, that Apprendi does not control the
pleading and proof requirements for the mitigation issue because the

43

mitigation

issue

is

not

an

aggravating

factor

that

increases

punishment beyond the prescribed statutory maximum authorized by the
jury’s verdict.

Fifth Circuit precedent forecloses relief.

See

Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007); Rowell
v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005).
B.

Claim 4 is denied.

Claim 6

In claim 6, Bigby relies on Justice Blackmun’s dissent in Callins
v. Collins for his contention that the mitigation issue gives the jury
unfettered discretion to decide what evidence is mitigating and
whether the defendant should live or die, in violation of the Eighth
Amendment.

Petition at 95; see Callins v. Collins, 510 U.S. 1141,

1143 (1994) (Blackmun, J., dissenting). Respondent maintains that the
jury discretion and guidance provided by Texas special issues have
been upheld by the Supreme Court and, alternatively, that Bigby is
asking the Court to recognize and apply a new constitutional rule of
criminal procedure in violation of Teague v. Lane, 489 U.S. 288, 310
(1989).
The claim is foreclosed by Teague because the Supreme Court has
never adopted the minority view in Callins v. Collins.
Dretke, 412 F.3d 582, 594 (5th Cir. 2005).

See Hughes v.

Alternatively, the claim

lacks merit because the Supreme Court has held that juries may be
given unbridled discretion in determining whether to impose the death
penalty once it is determined that the defendant is eligible to
receive it. See Tuilaepa v. California, 512 U.S. 967, 979-80 (1994).
And the Supreme Court has implicitly approved of the Texas mitigation

44

issue in particular as an adequate vehicle for the consideration of
all mitigating evidence.

See Penry II, 532 U.S. at 803.

Claim 6 is

denied.
B.

Claim 7

In claim 7, Bigby contends the mitigation issue sends the jury
unspecified “mixed signals” regarding the burden of proof and suffers
from the same Eighth Amendment flaw as the judge-made “nullification”
instruction struck down in Penry II.

In Penry II, the flawed nulli-

fication instruction required the jury to give a false answer to one
of the special issues in order to give effect to its belief that
mitigating evidence warranted a life sentence rather than a death
sentence.

Penry II, 532 U.S. at 802.

unconstitutional

element

decision,

making

the

dependent

on

their

of

This mechanism injected an

capriciousness

jurors’

power

willingness

to

to

into

avoid

the

elevate

the

instruction over the verdict-form instructions.

the

sentencing

death

penalty

nullification

Penry II, 532 U.S.

at 800.
The mitigation issue in this case presents no concerns similar
those

identified

in

Penry

II.

Moreover,

as

noted

above,

the

mitigation issue was implicitly approved by the Supreme Court in Penry
II.

Bigby fails to demonstrate that the state court’s ruling was an

unreasonable application of clearly established federal law, and claim
7 is denied.
VII.

The Lethal Injection Protocol (claim 8)

45

In this final claim, Bigby contends that the lethal injection
protocol

violates

the

Eighth

Amendment

foreseeable infliction of suffering.9

because

it

involves

a

He states that the first drug

administered, sodium thiopental, is a short-acting barbituate that may
not provide a sedative effect throughout the entire execution.
this

happens,

then

the

paralytic

effect

of

the

second

If

drug,

pancuronium bromide, will mask the excruciating torture caused by the
third drug, potassium chloride, which is intended to cause cardiac
arrest.

He also argues that the lack of physician involvement and

training standards for execution personnel makes the risk of severe
and unnecessary pain likely.
The state habeas court held, based on Texas precedent, that this
issue was not cognizable on habeas review and also not ripe for
review.

(4 SHR 938).

Respondent argues only that the claim is

without merit because the protocol is substantially similar to the
protocol that was upheld in Baze v. Rees, 553 U.S. 35 (2008).

Because

there is no state-court decision on the merits, this Court reviews the
claim de novo rather than through the deferential lens of the AEDPA.
See Cone v. Bell, 556 U.S. 449, 472 (2009).
Fifth Circuit precedent forecloses

relief.

The three-drug

procedure challenged by Bigby is within the safe harbor established
by Baze v. Rees because it does not create a demonstrated risk of

9

The Court understands that the protocol challenged by Bigby is not
presently used for Texas executions. See Tex. Dep’t Criminal Justice –
Corr. Inst. Div., Execution Procedure, ¶ VII (July 9, 2012) (establishing
single-drug protocol). Nevertheless, this is the claim that is raised and
briefed by both parties.

46

severe pain.

See Raby v. Livingston, 600 F.3d 552, 561 (5th Cir.

2010) (affirming summary judgment for the State in § 1983 challenge
to execution protocol); see also Rivas, 432 Fed. Appx. at 405 (holding
that Raby forecloses Eighth Amendment challenge to the three-drug
protocol).

The Court denies claim 8.

VIII.

Request for Hearing

Bigby requests a hearing on his claims because the state habeas
court ruled too quickly that there were no controverted, previously
unresolved factual issues that required a live hearing. Specifically,
Bigby complains that the trial court denied a hearing 46 days after
the State’s answer was filed and 4 days after the last supplemental
affidavit of trial counsel was filed, which was not enough time to
review all the pleadings and exhibits.

Bigby also complains that the

convicting court adopted, in total, the State’s proposed findings of
fact and conclusions of law.

He maintains that the state court

therefore did not “reliably find the facts after a full hearing” and
that he is entitled to a hearing in this Court.

Petition at 22-24,

76.
This Court has discretion to grant an evidentiary hearing if one
is not barred under § 2254(e)(2).10

10

Landrigan, 550 U.S. at 473.

In

Section 2254(e)(2) provides:

(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that–
(A) the claim relies on–
(i) a new rule of

constitutional

47

law,

made

exercising that discretion, the Court considers whether a hearing
could enable petitioner to prove the petition’s factual allegations
which, if true, would entitle him to relief.
474.

Landrigan, 550 U.S. at

The Court also must consider the deferential standards in §

2254(d), which limit the Court’s ability to grant habeas relief.

Id.

In practical effect, if the state-court record precludes habeas relief
under the limitations of § 2254(d), a federal district court is not
required to hold an evidentiary hearing.

Id.; Pinholster, 131 S. Ct.

at 1399.
Bigby failed to demonstrate that the state-court rulings on
claims 1 through 7 were unreasonable.
precluded

by

inappropriate.

§

2254(d),

rendering

Habeas relief is therefore
a

hearing

on

those

See Pinholster, 131 S. Ct. at 1400-01.

claims

Claim 8 is

foreclosed by circuit precedent, and Bigby fails to allege any facts
that, if true, would entitle him to relief on that claim.

Therefore,

a hearing would be inappropriate for claim 8 as well.
Bigby argues, however, that the state proceeding was not a “full
hearing” as required by Townsend v. Sain, 372 U.S. 293 (1963).

retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.

48

The

vitality of Townsend after the AEDPA and Pinholster is questionable.
See Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir. 2001) (stating
that the AEDPA “jettisoned all references to a ‘full and fair hearing’
from the presumption of correctness accorded state court findings of
fact, along with the other situations which previously swept aside the
presumption”); Brumfield v. Cain, 854 F. Supp. 2d 366, 374-75 (M.D.
La. 2012).

That aside, Bigby provides no authority, either before or

after AEDPA, for his claim that 46 days is per se insufficient for the
trial judge to review the briefing and evidence related to eight
habeas claims.

In fact, Bigby fails to show record support for his

assumption that the trial judge waited until the State’s answer was
filed before she began reading the application itself.
The Texas statute governing death-penalty writs required the
convicting court to make its hearing determination no later than 20
days after the State’s answer is filed.
Ann. art. 11.071, § 8(a) (West 2012).

See Tex. Code Crim. Proc.

This suggests that Texas trial

judges are encouraged to read the application when it is filed, so
that the writ process may be “speedy and effective.”

See also Ex

parte Brooks, 219 S.W.3d 396, 399 (Tex. Crim. App. 2007) (“The purpose
of the Habeas Corpus Reform Act of 1995 was to fulfill the Texas
Constitutional mandate requiring a speedy and effective habeas corpus
remedy”) (citing Ex parte Kerr, 64 S.W.3d 414, 418 (Tex. Crim. App.
2002)).

Here, the trial judge had a full six months to contemplate

Bigby’s habeas allegations before receiving the State’s answer and
deciding whether a hearing was warranted.

49

Bigby also fails to support his claim that the state court may
not adopt the State’s proposed findings and conclusions as its own.
The Fifth Circuit has rejected the contention that habeas findings
adopted verbatim from those submitted by the State are not entitled
to deference.

See Green v. Thaler, 699 F.3d 404, 416 n.8 (5th Cir.

2012) (citing Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999)
and Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995)).

Nor can Bigby

persuasively challenge the validity of paper hearings in state court,
which have been consistently upheld in this Circuit.

Green, 116 F.3d

at

Bigby’s

1120

n.4.

As

stated,

the

judge

who

heard

habeas

application and recommended the denial of relief to the Texas Court
of Criminal Appeals was the same judge who had presided over the 2006
retrial.

She was already familiar with the case, the evidence, and

arguments, as well as the attorneys and their credibility.

She was

uniquely qualified to assess whether a live evidentiary hearing was
necessary under the circumstances.

The trial judge’s denial of an

evidentiary hearing and her reliance on the State’s proposed findings
of fact and conclusions of law do not render the state-court rulings
unreasonable.

Id.

The Court denies the request for a hearing.

IX.

Certificate of Appealability

Under Federal Rule of Appellate Procedure 22(b), Bigby cannot
appeal this order unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253(c).

Rule 11(a) of the Rules Governing

Section 2254 Cases requires the Court to issue or deny a COA when it
enters a final order adverse to the applicant.

50

A COA may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.”

See § 2253(c)(2);

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Where a district

court

has

rejected

the

constitutional

claims

on

the

merits,

a

petitioner satisfies this standard by showing that reasonable jurists
would find the district court’s “assessment of the constitutional
claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484

(2000). Where the district court dismisses the petition on procedural
grounds,

a

petitioner

satisfies

this

standard

by

showing

that

reasonable jurists would find it “debatable whether the petition
states a valid claim of the denial of a constitutional right” and
“debatable whether the district court was correct in its procedural
ruling.”

Id.

Upon review and consideration of the record and the pleadings,
the Court determines these standards have not been met.
the Court DENIES a certificate of appealability.

Accordingly,

In the event Bigby

files a notice of appeal, the Court notes that he may proceed in forma
pauperis on appeal.

See 18 U.S.C. § 3006A(d)(7).

The Court DENIES the application for habeas relief.
SIGNED April 5, 2013.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:bb

51